Lords Sitting of 29 January 1968

Preamble
The House met at half past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Chester.

HOUSE OF LORDS POWERS
2.35 p.m.
LORD MITCHISON: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government when they propose to introduce legislation to safeguard measures approved by the House of Commons from frustration by delay or defeat in the House of Lords.]
THE LORD PRIVY SEAL (LORD SHACKLETON): My Lords, as my right honourable friend the Prime Minister made clear in another place, the Government hope that a report will be made at the end of the present inter-Party discussions on the reform of the House of Lords. The date of the introduction of any legislation must depend upon the progress of the talks.
LORD MITCHISON: My Lords, while thanking my noble friend for that Answer, or giving such thanks as it deserves, may I ask him to let us know as soon as possible what he and other noble Lords on the Front Bench opposite are concocting about the House? I hope that something will be done fairly soon.
LORD SHACKLETON: My Lords, I think the only reply I can give my noble friend is that I have nothing to add to the Answer I have already given.

"ESTACODE"
2.37 p.m.
LORD MITCHISON: My Lords, I beg leave to ask the second Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what Estacode is.]
LORD BESWICK: My Lords, Estacode is the name given to the Establishments code, or collection of rules and advice on staff management, for the non-industrial Home Civil Service. It embodies regulations and instructions made by the Treasury under Article 6 of the Civil Service Order in Council 1956, and provides in compact form guidance in all matters of permanent interest to etstablishment officers.
LORD MITCHISON: My Lords, including, I hope, the way to treat difficult Ministers. May I ask whether a copy of Estacode can be put into the Library or made available at the Printed Paper Office? We shall in due course have to consider the Fulton Report.
LORD BESWICK: My Lords, I have already asked for a copy to be placed in the Library of this House. There has been one for some time in the Library in another place and I understand that there are some 3,000 in circulation, some in the hands of the bigger employers in the country. There is therefore nothing secretive about this.
LORD NAPIER AND ETTRICK: My Lords, may I ask the noble Lord whether I am correct in thinking that Estacode does not have the force of law—that is to say, that it would not be enforceable in a court of law?
LORD BESWICK: My Lords, this is a very lengthy document, including some hundreds—indeed, thousands—of items, and I should not like to give a categorical undertaking that not one of these items is not enforceable by law.

ARMS EXPORTS TO NIGERIA
2.39 p.m.
LORD BROCKWAY: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what exports of arms to Nigeria have been permitted from the United Kingdom since the beginning of the civil war between the Federal Government and the East (Biafra).]
THE MINISTER OF STATE FOR COMMONWEALTH AFFAIRS (LORD SHEPHERD): My Lords, it is not the practice of Her Majesty's Government to disclose details of arms exported to other Governments.
LORD BROCKWAY: But is it not the case, my Lords, first, that there have been ministerial statements in another place and, secondly, that there have been published reports of this matter? Could my noble friend confirm, for instance, that during the last three weeks aircraft from Gatwick, each loaded with 10 tons of ammunition, have been flown to Lagos?
LORD SHEPHERD: My Lords, this is a matter to which thought has been given by Her Majesty's Government. The Government which we recognise in Nigeria is the Federal Military Government and we have felt it right that we should continue to supply reasonable quantities of arms to that Government. I think it would be wrong for me to comment in regard to the various newspaper reports.
LORD BROCKWAY: My Lords, may I ask my noble friend whether it is not the case that a statement has been made by the Government that only previous contracts and spares would be supplied? And is it not the case that this is not an issue limited to law and order, but a conflict of fundamental issues of race and the future Constitution of Nigeria? Would it not be much better for the Government to concentrate on bringing this tragic civil war to an end rather than
600
on supplying arms to one side or the other?
LORD SHEPHERD: My Lords, I must confess that I am not aware of the statement to which my noble friend refers, but I am sure he will appreciate that, while we deplore the tragic and sad civil war in Nigeria, we have been supplying Nigeria with pretty well all its military equipment, and in the present circumstances we think that we should continue to supply reasonable quantities of arms to the legal Government of Nigeria. I would make it clear that none of these weapons are what can be described as mass destructive weapons, such as bombs and aircraft of that class.
BARONESS SUMMERSKILL: My Lords, could my noble friend tell me what precedents there are for this Government providing arms for one side during a civil war?
LORD SHEPHERD: My Lords, I am sure that there are plenty of precedents, unfortunately, when countries have been involved in civil war. We have a responsibility to support the legal Government and this we must continue to do.
LORD BROCK WAY: My Lords, is my noble friend aware that his statement is a very serious modification of previous declarations by Her Majesty's Government, and that I should like to take an early opportunity of raising the whole issue again before the House?
LORD GOODMAN: My Lords, is the noble Lord aware that grave disquiet exists in this country as to whether or not terms such as "legal Government" have any application to this dispute at all, particularly in relation to the outrages which undoubtedly have been perpetrated on Biafrans?
LORD SHEPHERD: My Lords, I should not wish to enter into a discussion as between the two sides in this tragic war, but the noble Lord must appreciate—I am sure that the House does—that there is a legal Government in Nigeria and that we are bound to support it. That is all we are doing. Within the limits we have imposed, weapons are being supplied in reasonable quantities.

RHODESIA: DEPORTATION OF MR. DESMOND FRANCIS
LORD BROCKWAY: My Lords, I beg leave to ask the second Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what action has been taken to protest against the deportation from Southern Rhodesia to South Africa of Mr. Desmond Francis, who with his wife was arrested after crossing the Zambian border at Victoria Falls to check train times for relatives.]
LORD SHEPHERD: My Lords this is a complex problem. It appears from public statements that were made in Salisbury that Mr. Francis was detained under the Southern Rhodesia Emergency Powers Regulations. We regard the detention of Mr. Francis as illegal; but in present circumstances we were not in a position to remedy the detention or to prevent the deportation. As the noble Lord will be aware, Mr. Francis is a South African citizen, and we therefore are unable to make representations on his behalf to the South African Government. We are, however, in contact with the authorities in South Africa about his position on behalf of Mrs. Francis, with whom I am sure all noble Lords will sincerely sympathise in the misfortune that has befallen her.
LORD BROCKWAY: My Lords, does my noble friend appreciate that I recognise the character of that reply? May I ask my noble friend, first, whether this deportation is not by an illegal Government, which our Government do not recognise, and therefore has no authority from the supreme power in Southern Rhodesia; secondly, whether Mr. Francis's wife is not a British citizen; and thirdly, whether Mr. Francis is not liable to criminal proceedings in South Africa because he has married an English woman, contrary to the doctrine of apartheid, which we all deplore?
LORD SHEPHERD: My Lords, in regard to the first part of the question, my noble friend is quite right. This is an illegal act, both in the sense of detention and in the sense of deportation. With regard to Mrs. Francis, she is a
602
United Kingdom citizen, and therefore, if she is in need of assistance, naturally, if she approaches the High Commission offices in Lusaka, we shall do all we can. Would my noble friend remind me of his third point?
LORD BROCKWAY: Yes, certainly. Is it not the case that, because this South African Indian citizen married an English woman he is liable to criminal proceedings when he returns to South Africa, due to the fact that he has not married in accordance with the apartheid doctrine, which we all deplore?
LORD SHEPHERD: My Lords, I thank my noble friend. It is quite true that Mrs. Francis was very concerned that her husband might be charged because he is of Indian origin and had married a European white person. However, I would inform my noble friend that just before coming into the House I received a message to the effect that such a charge is very unlikely to be proceeded with.
LORD BROCKWAY: My Lords, is my noble friend aware how grateful we are for that reply?

ADMINISTRATION OF JUSTICE BILL
2.47 p.m.
THE LORD CHANCELLOR (LORD GARDINER): My Lords, I beg to move that this Bill be now read a second time. This one-clause Bill was welcomed by Members of all Parties in another place, and I hope that your Lordships will give it a similar welcome. It is a Bill which does two things. First, it increases the statutory maxima of the numbers of judges; and secondly, it provides that if in future it becomes necessary to alter those maxima it may be done by Order in Council, not to come into force until the Order has been laid before Parliament and approved by both Houses of Parliament. I hope that your Lordships will approve that provision. Having regard to the shortage of legislative time, it should, your Lordships may think, be unnecessary to have a simple one-clause Bill subject to First Reading, Second Reading, Committee stage, Report stage and Third Reading.
The numbers of the maxima which it is proposed to increase are, in the case of the Lords of Appeal in Ordinary, an

603
increase from 9 to 11; in the case of the Lords Justices, an increase of 11 to 13; in the case of High Court Judges an increase of 63 to 70; and in the case of county court judges an increase of 90 to 97.
It cannot be said that in comparison with other countries we have an excessive number of whole-time professional judges. I think I have mentioned before in your Lordships' House that at one time I wrote to all the Law Ministers of Western Europe and our old Dominions to ask whether they would be good enough to let me know how many whole-time professional judges they had per million of the population. The answers were these, among others: Sweden, 121; Switzerland, 110; Belgium, 85; France, 82; Canada, 76; Norway, 58; the Netherlands, 36; Australia, 29; New Zealand, 24; Scotland, 15; England and Wales, 8. We are, therefore, very much at the bottom of the league table. If one takes all our judges of all kinds, including subsidiary judges like masters, registrars, registrars of the Probate, Divorce and Admiralty Division, district registrars, registrars of all the county courts and so forth, the total number of whole-time professional judges in England and Wales is 382.
At the same time, I asked the Law Ministers whether they would be good enough to tell me what was the percentage of their last budget which was attributable to justice, other than prisons and the police, for which I explained I was not responsible. Here again we were at the bottom of the list. On average, most countries spent one-half of 1 per cent. on justice; our figure, which is the lowest, is 0·16 per cent. So we spend a smaller proportion of our money on justice than any other Western democracy, largely because we make the litigants pay for most of it.
There are different reasons why it is desirable that the statutory maxima should be increased. Perhaps I may take first the Lords of Appeal in Ordinary. Their number is nine, and it has been nine for over twenty years. When sitting as the Appellate Committee they have to be five; and the Privy Council, except on petitions for leave to appeal and when they are hearing appeals from dependent territories, also have to be five. In
604
addition to the nine, there are others qualified to sit if they are Peers—the Lord Chief Justice and the Master of the Rolls. But, of course, they have their own jobs to do. The noble and learned Viscount, Lord Dilhorne, as an ex-Lord Chancellor, qualifies to sit; and he has been extremely kind in sitting a great deal in the course of the last year. The Lord Chief Justice of Northern Ireland is qualified to sit; and he comes over occasionally. But, as I shall explain, the arrears of work in Northern Ireland are rather worse than here, so he cannot often come.
Starting, then, with nine, the Lord Chancellor is often appealed to by the members of his own Government to allow a judge to do some other form of public work, and obviously one must put the national interest first. When we have a very important Royal Commission, such as the Royal Commission on trade union law, and we have both the Confederation of British Industry and the Trade Union Congress insisting that they ought to have a particular judge in whom they have special confidence, it is obviously very difficult to refuse. This has meant that for about eighteen months Lord Donovan has hardly been able to sit as a Lord of Appeal in Ordinary, at all, and this reduces my nine to eight. If somebody is ill the number is reduced to seven. I do not know how I should have managed in the last eighteen months if Judges of the High Court in Australia, the President of the Court of Appeal in New Zealand and the Chief Justice of Trinidad had not been able to come over for one, two or three months at a time to help me out.
I do not think that the present position is a satisfactory one. What I am asking for, however, is not that any immediate appointments should be made, but that the statutory maxima should be increased. I shall, of course, consult with the noble and learned Lord, Lord Reid, the senior of the Lords of Appeal in Ordinary, as to whether he thinks one additional Lord of Appeal in Ordinary should shortly be appointed.
As to the Lords Justices, your Lordships will remember that in 1966 we passed legislation, the Criminal Appeal Act of that year, abolishing the Court of Criminal Appeal and providing that criminal appeals should be heard by a

605
Criminal Division of the Court of Appeal. It was not necessary at that time to increase the statutory maxima because there were two vacancies, but two High Court Judges with special experience in criminal cases were appointed to the Criminal Division of the Court of Appeal to give that Division a good start. Since then, the number of applications for leave to appeal has greatly increased. In 1965 there were 2,852; in 1966, 4,403, and last year, subject to checking, 5,900.
At the same time, civil appeals have suffered because it is usual to give criminal work precedence over civil work. The number of civil appeals outstanding at the end of the term has increased by about 50 per cent., and whereas it used to be possible, and should be possible, for a civil appeal to be heard within three months of its being set down, the three months has now become four. So few appeals come to your Lordships' House that our law is very largely governed by the Court of Appeal, and it is very undesirable that the Court should be under very great pressure. They have a great many judgments reserved and to write. The Judges in the Court of Session in Edinburgh do not sit on Mondays, but our judges have to do all this work out of court.
Again, I had a further difficulty because one of the two judges who have been made Lords Justices expressly to give this Criminal Division a good start was Lord Justice Edmund Davies. But then we had the disaster at Aberfan, and as soon as the Prime Minister came on the telephone I guessed what it was going to be. He wanted Lord Justice Edmund Davies to preside at a Committee of Inquiry into that disaster. Obviously, I could not refuse. Lord Justice Edmund Davies was born just over the hill from Aberfan and he went to the local school; and, of course, it is quite obvious that the people of Aberfan could not, perhaps, have had the same confidence in any other member of the Judiciary. But that meant that almost as soon as he started this work in the Court of Appeal he went off to Aberfan, and that work took him about six months.
So far as the High Court Judges are concerned, there has been a great increase of work lately, and there are divers causes for it. The first cause, I think, is simple: the population has increased.
606
Obviously, if the population increases, prima facie there are more people to litigate and crime is likely to increase in proportion. As your Lordships know, crime has in fact increased since the war out of all proportion. But if there was not an increase of that kind, one would in any case expect that an increase in the population would result in an iacrea5e in crime. As a matter of interest, the number of Queen's Bench Judges per million of the population in 1871 was 1·26, and the number of Queen's Bench Judges per million of the population in 1966 was 1·26—exactly the same. It is true that the numbers of those judges have more than doubled, but the population of England and Wales in 1871 was 22 million, and is now 48 million. The proportion is exactly the same.
As to the Chancery Division, I do not know whether this is the result of recent legislation or not, but work there has very much increased, and I am sorry to say that from the time when a case is ready to set down for trial to the time it takes to get the case tried is now a year—and, of course, that is obviously much too long.
Another cause is legal aid. I do not think we have anything to be sorry about in this connection. It means that people who could not previously afford to be defended on a criminal charge, now can. It means that people with legal rights can afford to enforce them. Of course, your Lordships know that legal aid is not free. One is assessed by the Supplementary Benefits Commission and has to pay what one can; and people on an income of, say, £20 a week find that they have to pay most of the cost themselves. But the State pays what the subject cannot afford to pay. As if you have legal rights which you cannot afford to enforce you may just as well throw your legal rights into the wastepaper basket, we think it right to have what we consider to be the best legal aid system in the world, but it has of course meant an increase in litigation.
Another feature recently has been the great increase in cases which take a very long time to try, particularly, though not exclusively, criminal cases. This, I think, is simply due to the increasing sophistication of modern life. Fraud cases may involve very large sums of money and very

607
complex transactions which those accused have done their best to cover up in the books, and that kind of case takes a long time to try. A case like the train robbery case obviously takes a long time to try; as does a case like the Richardson gang case. Wherever about fifteen people are accused of conspiracy, all of whom may be represented by different counsel, and each of whom is entitled to cross-examine every witness called for the prosecution, of course the case takes a long time.
As a matter of interest, in 1952, which seems to have been a typical sort of year for that period, the number of cases at the Central Criminal Court which lasted beyond four days was 10; in 1966 the number of cases which lasted more than four days was 104. Another obvious sign that the Queen's Bench Judges cannot get through all their work lies in the number of times that I have to appoint commissioners. As your Lordships know, they are senior members of the Bar who are made commissioners to try a particular case or a number of cases, for which they have all the powers of a High Court Judge. Nobody really likes this. The people do not like it because they think, quite rightly, that they are entitled to have their cases tried by High Court Judges and not by barristers. The barristers do not like it because they lose money on the low rates of pay which the Treasury pay their commissioners, and also it is hard on many of their clients whose cases they have to return at the last moment.
A few years ago the number of times the Lord Chief Justice would tell me that there was, say, a case at Bedford (or some other town) which he had been told would last a month and if the assize judge tried it he would not be able to try any of the other civil cases, used to be three or four times a year. In the last few years it has varied between 10 and 14 times a year.
As to the county courts, in the cases to which I have referred we already have the maximum number in the posts. The maximum number is 90 and there are 90 at present in posts. Here again there are various causes for the increase in the amount of work in the county courts, although it has not increased to the same extent as the High Court. There is the
608
increase in the population; the fact that the county court tends to be busiest at times of stringency: and the fact that legal aid has not so long ago been introduced in the county court. There is also the fact that some of the county court judges now sit at quarter sessions.
The noble and learned Viscount, Lord Dilhorne, took the view that, speaking generally, it was undesirable, if it could be avoided, that there should be judges who do nothing but crime, week after week, month after month, year after year for the rest of their lives. I entirely share his view. He took the view that while, of course, in the Central Criminal Court and some other places this might be unavoidable, where there were deputy chairmen of quarter sessions who in large towns have to sit all the time, it would be desirable to have county court judges who could lend a hand with that work. In Manchester and Liverpool now all the deputy chairmen of quarter sessions are county court judges. They do six months on civil work and six months on quarter sessions. There are large numbers of county court judges now in London who act as deputy chairmen of quarter sessions in London for a couple of months a year, and there being recently a vacancy for a new deputy chairman of quarter sessions and for a county court judge I appointed two county court judges, each of whom would be available to sit for the quarter sessions. This, of course, affects the maximum number, so, in a sense, I am depriving myself of a county court judge in that way. Another cause of the increase is that for a long time the county court judges have been doing nearly all the undefended divorce cases, and the number has about doubled in the last ten years.
With regard to Northern Ireland, the Bench consists of the Chief Justice, two Appeal Judges and two puisne judges—five in all, and they have remained the same since 1920; but the Chief Justice tells me that there is an alarming rate of arrears. This has been caused partly by the fact that crime has increased and partly by the fact that only a year or two ago they started legal aid for the first time.
As for the Court of Session, I am under the impression that is not under such pressure. As I have said, they do not sit on Mondays, although I think they

609
sit on Saturday mornings to deal with divorce cases. It was proposed to increase their maxima from 18 to 20, but the Government in another place accepted the only Amendment there was, to substitute 19 for 20. I may say that the only critical speeches in another place were from the Scottish Members of Parliament. I think they are under not quite so much pressure there, although it is only right to say that just as in England Mr. Justice Scarman has been seconded for five years to the Law Commission, so in Scotland Lord Kilbrandon has been seconded to the Scottish Law Commission and Lord Wheatley devotes a lot of his time as Chairman of the Commission on Local Government for Scotland.
There is more than one guarantee against the appointment of too many judges. The first is that no Lord Chancellor ever wants to appoint any unnecessary judges, and the second is that, partly by Statute and partly by convention, I cannot increase the number of judges anyway without the consent of the Treasury. Indeed, if a judge dies or retires I have to convince the Treasury that the state of business is such as to require his place to be filled. Moreover, if the conclusions of the Royal Commission on Assizes and Quarter Sessions led to the view that there should be fewer judges of any particular kind, it would not be difficult to reduce them. For all these judges except the county court judges there is a retiring age of 75, and of 72 for the county court judges, and the rate of deaths and retirements is such that by merely not filling vacancies it would be easy to reduce these numbers.
Perhaps in conclusion I should say a word about my actual intentions, although I think I should be wise to wait and see when the Bill becomes law. As for the Lords of Appeal in Ordinary, there is a case now for one additional Lord of Appeal in Ordinary, but before making up my mind I would discuss that with the noble and learned Lord, Lord Reid. There is a case for one more Lord Justice in order to try to catch up with the mounting arrears in the Court of Appeal. In the High Court, although there is this grave delay in the Chancery Division, I used up my last power of appointing a judge by recommending the appointment of an additional judge
610
in the Chancery Division, and I hope he may enable these arrears to be caught up. It is doubtful whether the Probate, Divorce and Admiralty Division will require an immediate additional appointment, but the Queen's Bench Division certainly requires one additional appointment.
The number of county court judges will depend entirely on how they can get through their work and how often I have to appoint a deputy chairman of quarter sessions. My right honourable friend the Secretary of State for Scotland does net propose, when the Bill becomes law, to make any immediate additional appointment. In Northern Ireland the state of arrears is such that it is quite clear that either one or two additional puisne judges ought to be appointed almost as soon as the Bill becomes law. I hope with that explanation your Lordships will give the Bill a similar welcome to that which all Parties gave it in another place. I beg to move.
Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
3.10 p.m.
VISCOUNT COLVILLE OF CULROSS: My Lords, I do not know what the noble Lord, Lord Goodman, is going to say from the Cross-Benches, but at any rate so far as those who sit in the Opposition in this House are concerned I can tell the noble and learned Lord straight away that we shall support the Bill. After the explanation the House has already heard, I do not think I need say very much about the details of the Bill, although I expect that the noble and learned Lord the Lord Chancellor will agree that perhaps the immediate justification for the increases, though necessary to be explained, is probably subordinate to the power in future to increase the number by Order in Council. Indeed, as the noble and learned Lord has said, some of the powers in the first part of the Bill are to be exercised straight away, whereas others are to be in reserve for the moment.
Although a Bill of this nature could in fact be a springboard for a great deal of discussion as to why it is necessary for further judges to be created, it would probably be better on this occasion to restrict ourselves to the fact that in most cases it is

611
because of laws already passed by Parliament and now being put into operation in the courts. Perhaps in that respect we ought to bear in mind the consequential matters which will follow upon the more complicated legislation that we pass. It would always be wise, I suggest to your Lordships, to bear in mind that, when very difficult and complicated legislation is being considered by this House, somebody will have to interpret it, and it is hardly surprising if the cases take a very long time when it is extremely difficult, if not impossible, for Members of this House, and members of the Government sometimes, to persuade each other what the various clauses mean. I would hope, therefore, when we are dealing with the sophistications, as the noble and learned Lord pointed out, of modern life, we try to remember those who have to interpret them, that is, the lay person, the litigant or the accused who is going to come in contact with these affairs.
I think the noble and learned Lord has justified all the powers that he wants. I would make only the very briefest comments on one or two of these individual categories. I hope that there will be no cessation of the practice, if not the necessity, of calling in the very powerful talents of Commonwealth judges to assist in Privy Council cases. It seems to me, or at any rate I have been told, that the justice in the Privy Council has been greatly enhanced and decorated by the part they have played of late. So long as the Privy Council deal with matters arising in courts outside England and Wales, I hope that the noble and learned Lord will not forget the contribution these judges can make towards the fulfilment of the whole purpose of the Privy Council.
With regard to the Court of Appeal, I think it will be for another occasion to decide why there are, for instance, so many more applications for leave to appeal. I can think of one or two matters that were discussed on a recent Bill which may or may not have had something to do with this, but the fact is that there are these applications and the Lords Justices must be there to deal with them. So far as the High Court itself is concerned, I think probably that lawyer, litigant and accused alike will remember in some cases delays which are sufficient in themselves to justify more judges to expedite matters.
612
I am glad that the noble and learned Lord has explained the situation about Scotland. If only one extra appointment is immediately necessary I am sure that the Bill is right in only providing for it, with again the power to add to the numbers of High Court Judges in Scotland if necessary by Order in Council. As for Northern Ireland, I had already heard that a new appointment was of maximum urgency.
So I can see nothing whatever to quarrel with in this Bill: and I hope that your Lordships will in fact pass it through this House with the same speed that it passed another place. Of course, the noble and learned Lord or his successor will doubtless come to us from time to time to explain whether they really need the power under subsection (2) of Clause I to be implemented at any given time and will give us a further explanation, not on that occasion of the particular provision, but the individual necessity which requires the use of that particular power to be made in that particular way at that particular time. I hope there will always be an opportunity for debating this matter, as I think there will be under the Order in Council procedure. Otherwise, I would think the noble and learned Lord has asked for no more than is reasonable; and assuming that his advocacy can get it past the Treasury in these times of financial crisis I have no doubt that it will be a very satisfactory measure indeed.
3.16 p.m.
LORD GOODMAN: My Lords, like the noble and learned Viscount, Lord Colville of Culross, I do not in any way wish to suggest that this Bill is not necessary, or that the powers the noble and learned Lord the Lord Chancellor is seeking are not requisite to the proper administration of justice. In so far as they are required to expedite the hearing of cases, plainly they are of public advantage. I should like to make a comment as a practising lawyer. Very often the delays in the conduct of litigation are attributed to the courts. Most practising lawyers know that only a very small part of these delays are the responsibility of the courts: they are often the responsibility of the practitioners concerned, and very often the responsibility of the parties. Lawyers and the courts

613
earn undeserved opprobrium frequently because long delays are brought to notice which have nothing to do with the administration of the courts. That is something that can be said only by practising lawyers acquainted with the facts.
What I wish to say touches on matters about which the noble and learned Lord said nothing at all, because they are in a sense background matters. I am sure we need extra judges; I would not quarrel with that. I am sure that nobody is better able to judge that than the Lord Chancellor himself, and it would be an impertinence for anyone to presume to try to assess the number of judges which is required at any given time or not to accept from him without dissent what the requirements are.
The matter which concerns me is quite different; that is, the question of the appointment of judges. I do not apologise in the least for raising this matter. We very rarely have an opportunity of discussing this matter in public, and it is only when a Bill of this kind comes to Parliament, either in another place or before your Lordships' House, that one has the opportunity to review matters which I believe to be of cardinal importance to the whole of society. In determining how we appoint our judges, where they are appointed and who is eligible, I think it would be of great importance to ask whether procedures which have become hallowed by time and sacrosanct only by practice—not, if I may say so, by logical or scientific examination—do not need to be considered and studied in rather greater detail than we have had the opportunity of doing.
I have been moved to speak in this debate to-day by a memorandum I have received from the Law Society, which, as your Lordships know, is a body which administers the affairs of solicitors, of whom there are some 20,000. The Law Society is, from my knowledge—although I have never been concerned as anything more than a member; I have had nothing to do with the administration of its affairs at any time—a body which enjoys the respect of all its members, and which is regarded as extremely moderate and in the best sense very conservative, which maintains and which always has maintained an extremely sensible relationship between the two branches of the profes-
614
sion. I am perhaps known to have views that did not entirely accord with those of the Law Society. I was therefore agreeably surprised to discover that at long last the Law Society had decided that something ought to be done about the appointment of judges. It was all anomaly, perhaps an anomaly doing injustice to society as a whole, that every judgeship of every kind should be art appointment from the small body of barristers. This is a matter on which the Law Society presented a memorandum, which I thought admirably drawn and containing very cogent arguments, many of the arguments I had over the years been advancing myself.
It may well be that when the noble and learned Lord the Lord Chancellor has heard what is to be said, to some extent he may be able to meet the arguments the Law Society has asked should be presented to-day. One of their major arguments is that the pool of barristers is a very tiny one. I believe it is a profession of which there are fewer than 2,000 practising members—I think that is a fairly accurate assessment, if not art over-assessment of the number practising. If your Lordships look at the Bill you will see that it provides for, and there are in existence, something like 200 judicial appointments of judges; judges in your Lordships' House, in the Court of Appeal, puisne judges, and county court judges. But there are a great many other appointments that can be filled, or by convention are filled, only from members of the Bar. Magistracies are nearly always filled from members of the Bar. Queen's Bench masters are nearly always appointed from members of the Bar, if not exclusively. Recorders, some of whom are full-time and many of whom have onerous duties occupying a great deal of their time, are nearly always, if not exclusively, members of the Bar.
I calculated on one occasion, and said, that if one took into account those members of the barristers' profession who, in terms of age, mental capacity and other qualifications, were eligible to be appointed as judges, there were more judicial appointments to be filled than the whole number of practising barristers. This is an extremely serious matter. It is obviously a matter that requires careful review. That the pool of persons eligible to be appointed should be less than the

615
number of appointments that exist for them is clearly something about which society must be most concerned.
It is my intention to put down an Amendment at an appropriate stage, and I do not intend to make Committee debate on Second Reading, but should like to consider with some of my colleagues the terms and extent of that Amendment. Certainly it will seek to persuade your Lordships' House that county court judges, at least, should be appointed from among solicitors. But this is not because I am in the slightest degree concerned to advance the cause of solicitors; on the whole, I do not think they are doing particularly badly, or are in need of any poor relief, or require to be appointed as judges because of extraneous reasons. But I think it is the case that a profession that has provided at least one Prime Minister to this country, I believe one or two Chancellors of the Exchequer, and several Home Secretaries, can hardly be regarded as disqualified from appointing some county court judges if made the matter of specialist and careful selection.
The education of solicitors is at least on a par with barristers. On the whole, the standard of the solicitors' final examination, in regard to which I was for some years an examiner, is at least as high as, if not higher than, the requirement of the barristers' examination, for a rather specialist reason: that the Bar take the view that when a man has passed his final professional examination he is not then by any means fully qualified, and the procedure of chamber instruction takes a much larger part in his education at that stage than it takes in the case of a solicitor, who receives his training in articles before taking his final examination.
For that reason, therefore, one can accept, and I hope the House will accept, that solicitors are, in terms of education, fully qualified for appointment at least as county court judges. It is my belief that many will be eligible for High Court Judgeships, and even higher appointments. But I think one should make modest starts, and I believe that when one starts from a position that there is a totally inadequate pool of persons from whom the appointments can be made it is reasonable to suggest that some of those appointments, the minor and lesser
616
of those appointments, should experimentally be held by solicitors. I do not think we should be incurring any risk to the quality of justice in this country; indeed, I believe that we should enhance it. I believe that there are considerable advantages (which it would be laborious to the House to enter into now) in giving some judges a different approach and a different viewpoint, drawing them from different sectors of society, giving them knowledge of activities and so forth that they do not at present have because of the necessarily cloistered and secluded character of a barrister's training would be a considerable advantage.
Many years ago, in the course of a controversy that the noble and learned Lord the Lord Chancellor will recollect, one eminent Lord of Appeal said of a brother judge that the less of sociology that any judge knew the better. While that may have been a relevant statement in those days, I believe it to be totally irrelevant to-day. It is most necessary that judges should know something of sociology, and it is at least necessary that they should know enough of sociology to assess the length of time that a case is taking and the ruinous consequences to the parties concerned in it in terms of the expense involved. I think we are moving in a direction where, on the whole, the liberalisation of the profession in that regard is to be welcomed.
I am anxious to say what I have to say in non-controversial terms. I do not think it is for the benefit of the profession that there should be an issue on this matter. Particularly I do not want it to be suggested that I believe that there is anything wrong with the quality of our judges at the moment. I believe, and I am proud to say, having travelled widely and seen courts in many parts of the world, that there are few countries, if any, which can find judges of the quality, of the learning and the integrity that we are happy to possess. I think we should be very slow indeed to take any measures that would damage that position, very slow indeed to take any measures that might damage the quality and integrity of the holders of judicial office. I should not be making this suggestion if I felt that this was in the remotest degree a likely possibility. I do not think it is. As a small and minor measure, it will not set the houses of

617
this town aflame, nor set anyone by the ears; and in the end we shall decide that it is something that ought to have been done long ago. Solicitors will, at least as a first step, be made eligible for appointments in the county court bench, which I think would be a social advance.
There are a great many arguments which whoever moves the Amendment in Committee will have to adduce and with which he may weary your Lordships' House, but I think the major argument is that most of the advocacy conducted in the county courts is conducted by solicitors. It is therefore ironical and an anomaly that persons who are able to conduct cases, who are regarded as qualified to conduct the cases, should be debarred from being appointed to the Bench to adjudicate on them. It may well be that I am pushing at an open door, and that when these issues are taken into consideration and when the representations that will be made by the Law Society and are being made on all sides of the profession, are taken into account, this is a minor change that will be accepted gratefully. I do not think I need say any more about that.
There is one other thing that I should like to touch on. It is perhaps of a slightly more delicate nature; but I do not see why we should be timid about delicacies that affect everybody. It concerns the question of how judges come to be appointed at all. This is a subject shrouded in abysmal mystery. We do, of course, know that they are appointed by the noble and learned Lord the Lord Chancellor, whoever he may be at any given moment. But how he appoints them, and on what advice he appoints them, whether he has a committee of experts to guide him, how he makes himself acquainted with the competing claims of practitioners then current, he himself having necessarily withdrawn from the hurly-burly of court activity, is a matter on which I think it would be a good thing that something should be known.
I do not believe that in these days mysteries are a sound or a wholesome thing in these matters. In the years that I have been practising law I have (and I regret to have to say it), observed a number of highly deserving practitioners of the law—I am speaking of senior
618
barristers—who in my opinion ought to have been judges. I do not know why they were not made judges. On many occasions where there are particularly strong candidates one hears strange rumours about how they failed to conform with some particular requirement or another. If a man has laboured all his life in a particular profession, if he appears ostensibly to have all the trends which are required for preferment, if he has done nothing wrong, if he has never committed any crime or any infraction of a professional code, it seems to me absolutely wrong that he should not in fact be appointed without some reason being assigned. It seems to me that there should be a good deal more publicity about these matters.
I am sure, for instance, that solicitors ought at least to be asked their opinion about the eligibility of candidates for this preferment. I am sure also that laymen ought to be asked. It seems to me odd, to put it no higher, that in matters that vitally affect all the laymen in this country these crucial appointments should be made, apparently, without reference to a single layman as to the eligibility of the candidate. We know the method that is adopted in the United States; we know that in fact appointments are there made by lay people, on the advice of lawyers. Whether this is the best way to do it, or whether it is better that lawyers should do it on the advice of laymen, I would not presume to say. But it seems to me totally wrong that these appointments should be made entirely on the recommendation of lawyers, enshrouded in secrecy and without anyone really knowing the circumstances in which this sort of thing happens.
I am not suggesting any scandals. I am not suggesting that the appointments that are made are not good appointments. I am only suggesting that at this moment of time, when we have long come to concede that privilege is something that people do not readily accept, and when institutions that have existed for years are no longer accepted at their face value and simply because of their antiquity, it is right that we should have a good hard look at this matter. It would be particularly valuable to hear the views of the noble and learned Lord the Lord Chancellor, and whether he really thinks that

619
the present system is beyond improvement, or whether there are certain respects in which it might be improved.
I should like to make one final observation. Having regard to the tiny pool of persons eligible for appointment to the Bench, it seems to me odd that we have never had an academic appointment to any level of Bench anywhere. We have some of the greatest and best academic lawyers in the world. The literature of English law is renowned as the finest published anywhere. We have great and learned lawyers operating in our universities who are entirely capable of discharging at least appellate functions, if not functions in courts of first instance. Yet we have never had an academic lawyer on the Bench, and yet they would be technically eligible since they are nearly always barristers. This is something to which I should like to draw the attention of the House and on which I would invite comment from the noble and learned Lord Chancellor.
When reading Lives of the Lord Chancellors some while ago, I found that there was an occasion when we got near to the appointment of an academic lawyer—I think it was some time in the 1920s—but the Bar ultimately drew back in horror and some very strange and tortured reasons were found for not appointing him. This is something which requires review. If one considers the wealth of wisdom which has accrued to the Supreme Court of the United States from lawyers like Mr. Justice Frankfurter and other men of great academic distinction, who came from academic backgrounds, it seems odd that we should not make some use of the kind of talent which we possess in this country. I do not apologise to the House for having raised matters which may not strictly be within the terms of the Bill, but this is the first opportunity of saying something on matters which I feel are important and worthy of consideration.
3.32 p.m.
LORD ROYLE: My Lords, in view of the nature of the Bill I speak with bated breath on this subject, but I was particularly interested in the comparative figures given by my noble friend the Lord Chancellor in regard to the number of judges per million of the population in various parts of the Continent and in other parts
620
of the world as compared with those in Britain. Is it not true that those figures would not be the same if we took into account the fact that there are approximately 18,000 lay magistrates in this country and that if one added those 18,000 lay magistrates to the number of what are called "judges" in other parts of the world the figure of eight to the million given by my noble friend would not apply?
One point which may bring a little comfort to the noble Lord, Lord Goodman, is that quite recently two solicitors have been appointed as stipendiary magistrates in very important places. Let it be said that in both cases they were previously clerks to justices. It at least may provide a little comfort to the noble Lord that they have been allowed in. It may be the "thin end of the wedge" I apologise for putting in "a plug" on behalf of lay magistrates.
3.34 p.m.
LORD CHORLEY: My Lords, I apologise for not being here until towards the end of Lord Goodman's speech, but what he was saying then I found of very great interest, importance and significance. I suppose I should confess an interest in this matter, although I am well beyond the age at which judicial appointments are made and therefore have nothing to hope. But as an academic lawyer I have always taken a great deal of interest in this problem of the occasional appointment of an academic lawyer to the Bench, and more particularly to the Court of Appeal, since it is to the Sureme Court in the United States and also to the Federal Courts of Appeal to which academic lawyers have mostly been appointed—at the stage when the administration of justice requires adjudication on a point of law rather than an investigation into some question of fact, which the acadamic lawyer is not really trained to do effectively.
I should like to remind the noble and learned Lord on the Woolsack that an attempt of this sort was made, an attempt in which I played a small part. This was described in Professor Heuston's continuation of the Lives of the Lord Chancellors in his contribution on the life of the late Lord Sankey, who for a number of years was a distinguished occupant of the Woolsack. An attempt was then

621
made to get a lawyer of academic distinction appointed, a man of outstanding quality and of great practical ability, the late Professor Gutteridge, who was the first holder of the Cassel Chair in Commercial and Industrial Law in the University of London and afterwards the first holder of the Chair at Cambridge (which was specially created for him) in Comparative Law. His contributions on comparative law are undoubtedly one of the principal contributions which have been made from an international point of view, because his reputation was much greater in countries abroad where they are interested in these matters than it was at home in England. Professor Gutteridge was a man who was eminently qualified to be a Member of your Lordships' House on the legal side, and certainly of the Court of Appeal.
This suggestion was put at the time to Lord Sankey by the late Professor Laski, at my instigation (I think I should disclose that at this stage) and Lord Sankey gave careful consideration to it. In a letter to Professor Laski, which I remember well because he showed it to me, he said that so far as he himself was concerned he was very interested and thought that it was a good proposal and would strengthen the Bench, but that having made inquiries among his colleagues he found that they felt that it was out of place that an academic lawyer should be appointed to the Bench, however suitable a candidate Professor Gutteridge might be. This is an extraordinarily shortsighted point of view, and I am very glad indeed that Lord Goodman has made the point so strongly. It is quite absurd that, in this year of grace, the administration of justice in this country, and more particularly adjudication on the difficult points of law which are continually arising, should be deprived of the great help which able academic lawyers could give.
3.38 p.m.
LORD SILKIN: My Lords, I do not think anybody in this Chamber will doubt the desirability of the measure introduced by my noble and learned friend. He has made an overwhelming and unanswerable case for an increase in the size of the Judiciary. Indeed, when I heard his intentions I was amazed at his moderation. In the light of what we all know, I should have thought that a
622
much greater increase in the Judiciary was called for.
I was interested in the figures given by my noble and learned friend about the delay in the Chancery Division. From my own experience I know that there is a similar delay—perhaps not quite to the same extent, but something corresponding to twelve months' delay—in the hearing of cases in the Queen's Bench Division. If it is anything like twelve months' delay, then it amounts to a denial of justice. One has to realise that this twelve-month period is not from the date of the initiation of the proceedings, but twelve months from the date when the matter is accepted as ready for trial. There will have been a considerable amount of preliminary proceedings before that; and, assuming that a case comes on for hearing twelve months after it has been set down, it means that it is probably about two years or even longer from the time when the proceedings were first initiated. That in many cases is an injustice.
Let us take as an example a running-down case, where a person has been seriously injured in an accident. Why should it take something like two years before he can get his case tried? One would have thought that a case of that kind, and many similar cases, could be disposed of in a much shorter time, and I would ask my noble and learned friend whether he would initiate some kind of inquiry as to the reason for these delays.
I recognise that he is trying to deal with that part of the delay between the setting down of an action and its hearing. But there is an equal delay in the time between the taking of the proceedings and the time when it is set down, and it is there that I think a good deal of time can be saved. Apart from the injustice to the litigants themselves—the plaintiff, who presumably has a claim and is denied the benefits of that claim; the defendant who has this thing hanging over his head all that time—there is the fact that most cases depend upon oral evidence, the evidence of witnesses, and it is taxing people's memories a great deal to ask them to remember with any degree of accuracy something which took place perhaps two or three years before. I am afraid that a good deal of evidence that is given in the courts, which is purported to be what people remember, is

623
really a piece of guesswork or wishful thinking, and this amounts to the fact that you are not getting true justice. I would ask my noble and learned friend to see what he can do to reduce the period that a trial takes from the time it is initiated to the time when it is heard.
I hope my noble friend Lord Goodman will not feel that he is a lone voice in the matter he raised as to the appointment of members of my branch of the profession to the Judiciary. I suppose he is a very cautious person, and that is why he is sitting on the Cross-Benches, and he is asking only for the appointment of solicitors as county court judges as an experiment. I should have asked for much more, but I am quite prepared to join him, at the outset at any rate, so long as the experiment is not of too long a duration and is made with the intention that, if it is successful, members of the solicitors' branch of the profession shall be eligible for appointment to higher offices.
I am not going to repeat all the arguments that he put forward so forcefully, and he will probably have an opportunity of raising the matter in greater detail during the Committee stage, but I should like just to mention this. My noble friend has just referred to two clerks who have been appointed as magistrates. I do not really take any comfort from that. It is probably in one area alone.
A NOBLE LORD: No.
LORD SILKIN: Then it must be in only two areas, and I still do not take any comfort from that, taking into account the very large number of stipendiaries that there are in the country. The fact is that practically all registrars of county courts are solicitors, and they are entrusted with the hearing of cases of, perhaps, minor importance and subject to appeal to the judge himself. Therefore, in one way solicitors are already acting as judges in the county court and, although the cases they take are perhaps minor cases some of them turn out to be quite important. So far as I know—I have no recent experience, but I had experience years ago—those cases are always conducted in the most satisfactory way. Even if you took the more cautionary step of promoting registrars of the county court to becoming county
624
court judges, it would be a step forward. I hope, therefore, that serious consideration will be given to this matter.
I am very glad indeed that the Law Society have at last resolved to press this point, as they are doing. When we remember, as my noble friend pointed out, that there are fewer than 2,000 barristers, most of whom are not available, and there are 20,000 solicitors, it would be astonishing if from 20,000 solicitors a number of people could not be found who would be suitable as county court judges.
I give a great welcome to this Bill. I hope it will have the effect that my noble and learned friend intends it to have, of reducing the delays that are taking place in the hearing of cases in our courts. I suppose the numbers that he is thinking of will not cause any delays in the way of accommodation or staffing, but I realise that every additional appointment to the Bench involves at the present time a problem of accommodation. I hope that my noble and learned friend may say a word about the accommodation problem. I believe there is a problem in the Law Courts as to accommodation, and perhaps he can tell us whether they could cope with an additional number of judges.
3.47 p.m.
LORD CONESFORD: My Lords, the noble Lord, Lord Goodman whenever he intervenes makes a speech that is stimulating and original and greatly interests the House. When he said that he did not propose to raise this matter by any Amendment to the Bill I think he was right, because his persuasive plea that the noble and learned Lord the Lord Chancellor should be able to choose from a greater number of men than had hitherto been customary was not directly connected in any way with the total number of judges, the matter which alone this Bill affects. It seems to me conceivable, though the noble and learned Lord on the Woolsack is always prepared to deal with everything, that it may have slightly surprised him that that particular matter was one with which he was called upon to deal to-day. Nevertheless, since the noble Lord, Lord Goodman, has raised the very important question of the appointment of solicitors, let me say at once that it is too wide a matter for a member of the

625
other branch of the profession to speak about without much further consideration.
I would, however, say a word about another proposal which I understood him to make, and that was that the noble and learned Lord the Lord Chancellor, in making his recommendations for the appointment of judges, should consult others. I gathered that there would be rather more publicity, or, at any rate, wider circles with whom consultation would have to be made, and to some extent I think that that might lead to public discussion. Without expressing any final view of the interesting suggestion of the noble Lord, Lord Goodman, I should like to give my own opinion, that I think appointments by Lord Chancellors have in fact worked very well. The noble Lord, Lord Goodman, made tribute to the quality of the judges on the Bench, and that makes me think that possibly—
LORD SILKIN: My Lords, how far back is the noble Lord going? Because I have a recollection that in my early days in many cases judges were political appointments.
LORD CONESFORD: My Lords, I was going back, frankly, to the time when I myself was called to the Bar and first took an interest in these matters, and to my experience since then. I agree that I am not going back further than that into history; but I certainly think that what I am saying is true of recent times. In politics, I have been opposed to a number of Lord Chancellors, but I have not been critical of their appointments.
The fact is that the Lord Chancellor, because he has himself been an eminent practitioner at the Bar and has had great experience of the Bar, always has great knowledge of a number of possibilities for appointment, and a considerable knowledge of those whom he may find it useful to consult in forming his opinion, as we can all seek advice, possibly even before the occasion of an appointment arises. Thus there is a tendency for Lord Chancellors to be both well informed and in a position to make a very good appointments and their position would not be improved if it were compulsory for them to consult somebody else. I throw that out as a possible view, because I so much respect any views on this subject put before us by the noble Lord, Lord Goodman, that I wanted to mention an
626
argument against that part of his suggestions.
There is one point I would make about academics, and I honestly do not know whether this will be considered an argument in support of the view that more should be appointed to the Bench or against it, but I know that it is the experience of many practitioners at the Bar that, when one reads some of the learned reviews and articles by very eminent academics, one is often struck by the extraordinary contrast between what they indicate as probable and what every practitioner knows the probability to be in dealing with current and possible legal cases. There is a great contrast, very often, between the academic view of the non-practitioner and the view held by anybody with experience of the courts. I do not know, as I say, whether that is an argument in favour of appointing an academic from time to time to one of the higher courts or against it, but I think it is a relevant consideration.
My Lords, the only other thing I wish to say is a word of thanks to the noble and learned Lord on the Woolsack for the statistics that he has given. A very striking fact to those whose experience goes back a considerable number of years is the extraordinary increase in the numbers of the judges. I cannot recollect any previous speech that so usefully gave a number of statistics enabling us to judge what the increase really means. I suppose the greatest cause of the increase is the great increase in crime, but that again has some relevance to the population. There may be possible answers and criticisms of some of the deductions of the Lord Chancellor—one was given by a noble Lord on the other side; namely, the possible influence of the great numbers of our lay magistracy which had no ready parallel in some of the countries compared—and there may be other comments of the same sort about some of the statistics given by the noble and learned Lord the Lord Chancellor; but I would say that I found those statistics of fascinating interest and express my gratitude to the Lord Chancellor for having given them.
3.55 p.m.
LORD ILFORD: My Lords, it was not my intention to take part in the debate this afternoon. Indeed, I think that the need for the additional judges which this

627
Bill authorises is so clear and outstanding that no argument in support of it is needed. But I was provoked by the speech of the noble Lord, Lord Goodman—or perhaps I should say encouraged by the speech of the noble Lord—to depart from my original intention. It seemed to me that the noble Lord's speech left a very unbalanced view of the distribution of appointments between the two branches of the legal profession. The noble Lord travelled very carefully, as he always does, over all the grounds for change, but he said very little about the grounds for retaining the present system of appointment, which everybody seems to conclude has worked remarkably well.
My Lords, in the distribution of appointments between the two branches of the profession, the solicitors' branch does not come out too badly. Take, for example, the clerks to local authorities. There is no reason why the clerk to a local authority should be a solicitor. But he invariably is, because the practice for many years now has been not to make an appointment outside the solicitors' profession.
LORD CHORLEY: My Lords, perhaps the noble and learned Lord does not remember that until very recent years the Town Clerk of Birmingham was a member of the Bar.
LORD ILFORD: Yes, indeed I do; and I can recall that a good many years ago, when I first began to become acquainted with local authorities, there were one or two other town clerks who were barristers. But to-day, I think, the practice is universally and very rightly followed of appointing solicitors to be clerks to local authorities.
LORD GOODMAN: My Lords, I hesitate to interrupt the noble Lord, but it is happily becoming the case that clerkships in important areas are no longer restricted to lawyers at all. This, I think, is a most welcome development.
LORD ILFORD: What the noble Lord says is perfectly true, but I doubt whether there have been many appointments so far of persons who have no legal qualifications of any kind. Certainly for a good many years the practice has been invariably followed of appointing
628
a solicitor, and I think it will go on being the practice for some time to come. Then, my Lords, clerks to justices are invariably solicitors, and there are a good many of them.
LORD SILKIN: My Lords, is the noble Lord putting these forward as judicial appointments?
LORD ILFORD: No.
LORD SILK IN: That is what we are discussing.
LORD ILFORD: I was putting this forward, my Lords, to redress the balance of the picture which was painted by the noble Lord, Lord Goodman.
LORD SILKIN: One might just as well quote the fact that solicitors are appointed as secretaries of public companies. That is quite irrelevant.
LORD ILFORD: My Lords, what I am drawing to your Lordships' attention is the fact that by established custom certain appointments, which I was endeavouring to enumerate before I was interrupted, are restricted to solicitors. Clerks to justices are invariably solicitors clerks of the peace almost invariably are; and usually clerks of local authorities. It really is not the case that the solicitors' profession is as completely excluded from appointment to judicial posts as the noble Lord, Lord Goodman, sought to convey.
How has it come about that the higher appointments have not hitherto been opened to the solicitors' branch of the profession? I think the real reason is that the majority of solicitors are not interested in appointments and do not desire that they should be eligible for them. Most solicitors regard the conduct of litigation as rather an inconvenience in their office, and many of them try hard to avoid it. If a solicitor is engaged in the ordinary business of a solicitor's practice, he has not the time to devote to work in the courts and invariably leaves that to one of his senior clerks. Of course that is not universally true; there are many solicitors who undertake advocacy in the county courts and magistrates' courts and who do the work extremely well. But they are solicitors who specialise in that class of work; they are not those solicitors who undertake

629
it in conjunction with the ordinary solicitor's practice.
I agree with my noble friend Lord Conesford that this is not a very suitable occasion to be debating these matters If they are to be debated it will be more convenient, and better from many points of view, that we should have a debate to which a little more preparation has been given by many of us. I hope that we shall have the opportunity to discuss these things on a rather wider basis than exists to-day. I am sure we are all grateful to the noble Lord, Lord Goodman, for having drawn attention to these matters and for having dealt with them in such a comprehensive and interesting fashion. I hope that none of us will make up his mind about this matter on the strength of this afternoon's debate. It requires a good deal more consideration than we have been able to give to it to-day.
THE MARQUESS OF ABERDEEN AND TEMAIR: My Lords, I do not know whether the noble Lord, Lord Goodman, wished to widen even more the possibility of various people being appointed to these legal positions. I am sure that many of us must have seen in a magistrates' court a lady in the chair, administering justice with knoweldge of the law and with great ability and sympathy. I wonder whether at some time we may even see judges who are ladies.
SEVERAL NOBLE LORDS: We already have them.
4.4 p.m.
LORD LEATHERLAND: My Lords, I am going to be as irrelevant as every other noble Lord who has spoken this afternoon. I am also going to be brief. I want to say that I should not like to see a system of lobbying for High Court appointments such as the one suggested by the noble Lord, Lord Goodman—although he did not use the word "lobbying". I think that the greater the degree of purity and impartiality there is in High Court appointments, the better it is for the country. On the whole, we get that kind of appointment; although, of course, my noble friend Lord Silkin was right in pointing out that 10, 20, 30 or 40 years ago there were large numbers of appointments to the High Court Bench made solely because Mr. So-and-So happened to be a good Conservative
630
M.P. I remember the appointment of one such judge with a name possibly now common and frequently heard in my own Party—
LORD ILFORD: Or a good Liberal M.P.
LORD LEATHERLAND: My Lords, this ought not to be a "closed-shop" debate for members of the legal profession. I have risen as a layman. I was not particularly enamoured of the suggestion made by my noble friend, Lord Chorley, and by the noble Lord, Lord Goodman, that more academic lawyers should be appointed to the High Court Bench. The job of the academic lawyer who sits in an ivory tower studying what now is and what might conceivably be some time in the future is quite different from that of the lawyer working day by day in public courts. The academic lawyer is not dealing with the hard facts as they are presented at that particular moment.
I was not particularly impressed by the fact that my noble friend Lord Chorley quoted the late Harold Laski as co-author of this particular kind of scheme. Harold Laski was a much-loved friend of mine for many years; but I recall that in 1945 he caused me a considerable amount of trouble in the libel world by the famous speech ha made in Newark market-place. I would not necessarily take the guidance of Harold Laski on this question, although, of course, I would do so in many other realms of human endeavour.
The noble Lord, Lord Goodman, clamoured for the appointment of solicitors. I agree with him in so far as he suggested solicitors for county cows, because I think the county courts are conducted with a good deal of informality, and the day-by-day contact which solicitors have with ordinary people might possibly be a point in their favour. But when the noble Lord suggested that there are 20,000 solicitors as against 2,000 barristers and that therefore it would as well to fish in the pool of solicitors as in the smaller pool of barristers, there I would not agree.
The noble Lord, Lord Ilford, has already mentioned that you must exclude from those 20,000 practising solicitors all who are clerks to local authorities. There are 1,000 local authorities in this country

631
and all—with the exception of the very small—have solicitors as their clerks. The bigger authorities have another solicitor as their deputy clerk, another as their assistant clerk, and probably eight or nine others acting in charge of various departments of the council. In my own council we have about a dozen of them.
When you are assessing the size of this pool, you must eliminate the old solicitors, those nice, old, silver-haired solicitors who sit in their offices in the market towns and carry on the business of the local laird with efficiency, but who would be completely lost if they were thrown into the cut-and-thrust atmosphere of a High Court, or even a county court. We must also subtract from the list all those who are very young and who are now learning the rudiments of their profession; and those who leave the bulk of their work to their managing clerks, who are unqualified people. We also have to exclude those who carry out almost full-time jobs as chairmen or directors of some kind of public company. And if we are realistic we must also exclude those who have never seen the inside of a court in the whole of their lives; whereas a barrister spends the bulk of his time in court. I do not want to say anything against solicitors as a whole, for if I ever get into trouble the first person I shall run to will be a solicitor.
4.9 p.m.
THE LORD CHANCELLOR: My Lords, we have had a very interesting discussion. In reply to the noble Viscount, I would say that I agree with him that this Government have passed some quite exceptionally complicated legislation. This may, of course, lead to more litigation and therefore to more judges. But I regard—as I know the Law Commission do—the complexities of modern statutory drafting as something with which we ought not to be satisfied, and to which we must find a solution. I agree with the noble Viscount that it would be a pity if we had no Commonwealth judges coming to sit on the Privy Council. All I am concerned to avoid is the case in which, if we cannot get someone, the Privy Council cannot sit at all.
I should have mentioned the fact that judges—not only appellate judges, but most judges—do a great deal of work out of court hours, not only in relation to
632
cases they are trying but on various committees. It may be worth remembering that there are now 37 High Court judges and 14 county court judges sitting on commissions or committees of one kind or another—and not only the Law Reform Committee, the Criminal Law Revision Committee, the High Court Rules Committee and so forth. Most of the work is done out of court hours. Where there are a number of laymen sitting on a committee it may be necessary—particularly if they come from outside London—to sit all day; but normally the work is done outside court hours. I was, I think for eleven years, a member of the Lord Chancellor's Law Reform Committee and we always sat at the end of a long day's work.
My noble friend Lord Royle is, of course, quite right to draw attention to what is literally the millions of pounds which the justices of the peace save the taxpayer (who is not in the least bit grateful for it) because they try 98½ per cent. of all the criminal cases—1,400,000 a year. I have no doubt that the difference between the English figure of 8 and the Scottish figure of 15 is largely accounted for by this; because most of the work which our lay justices do in England is done in Scotland, as I understand it, by the sheriffs substitute, who are all whole-time professional judges. The difference between Scotland and most of Western Europe and our old Dominions, in relation to the number of judges per million of the population, shows, I think, the real difference.
The noble Lord, Lord Goodman, and my noble friend Lord Chorley pressed the claims of academic lawyers to the Bench. I have not by any means a closed mind about it. It is, I think, in general desirable that an appeal judge should have had personal experience of the trial of cases; you cannot really tell what happened simply from reading a transcript. Whether the finest scholar among the academic lawyers would be very happy on being appointed as a puisne judge to go straight off to Newcastle, or somewhere, to try murder cases and so forth when, unlike those who are appointed, he has not perhaps spent any of his time as a trial judge, is again open to question. But, as I say, I have not closed my mind about this matter. The last appointment I have recommended is that of Mr. Justice

633
Megarry in the Chancery Division. As we all know, he is a first-class academic lawyer who has, perhaps, divided his time pretty equally between academic work and practising work.
The noble Lord, Lord Goodman, and my noble friend Lord Silkin—particularly, I think, the noble Lord, Lord Silkin—raised the question of delay. I have made plain that I think that twelve months is too long. It is perhaps worth bearing in mind that (although I have always been surprised at it) we are in fact much quicker than almost any country I know; particularly in dealing with criminal cases. Our tradition of trying people very quickly, and getting actions on for trial quickly, is a very good one which I hope we shall not lose. One has, of course, to divide the time into two. It has always been the case here that courts leave to the parties the bringing of a case to the door of the court. Anybody, after he has issued a writ, can hurry a case up or slow it down. The other party have a series of measures which they can take if they want to adopt the opposite course. But ordinarily, the court has no control over a case until it is set down for trial.
I am not sure whether or not that is a good thing. There are often reasons why parties do not want to bring cases on too soon. For example, in a case involving personal injuries, if it is one in which doctors say that arthritis or epilepsy may develop, if the judge has to assess the damages before any further prognosis, he has to do it on the footing that there is a fifty-fifty chance that something will develop. Might it not be more satisfactory to delay the assessment of damages until one knows what has happened? So there may be good reasons why cases are not brought on earlier; but I agree that twelve months is too long. It is not quite so bad in the General List of the Queen's Bench Division; but it was that time in the Chancery Division, and that is too long.
My noble friend also raised the question of accommodation, and this is a difficulty. Our court accommodation is shocking; and, of course, we are in times when all forms of public building are not to be encouraged. But when our economy allows, there is a really big programme of court building to be done.
634
It is chaotic because it is completely irrational. It is no good the Government saying that there ought to be an Assize at such-and-such a town: it has nothing to do with the Government; it is entirely for the local authority. The same is true of quarter sessions. When it comes to the magistrates' courts, it is, theoretically, for the local authority magistrates' court committee to persuade the authority that they must have a new magistrates' court but as the Home Office pays 80 per cent. of the cost, the local authority, in practice, does not mind.
When it comes to the Law Courts in the Strand, and all the county courts throughout the country, it is a matter for me and the Ministry of Public Building and Works, so there is no co-ordinating authority about court accommodation at all. There are over 400 places where county court judges have to sit and I have only about 90 purpose-built county courts. For the rest I am scratching round to find somewhere for the county court judges to sit—in a room in a town hall, or in some village hall, or in the magistrates' court, if it is not being used. One result of this lack of co-ordination is that there are cases where the local authority decide to build a new court building for, say, two quarter sessions courts and magistrates' courts and this provides economies of scale. But they forget altogether the county court, which is the worst off, because that does not come under their jurisdiction. I think it is time we had some co-ordinating authority, and I am gravely disturbed at the present condition of most of our court buildings.
May I take an example which is typical of the unco-ordinated efforts in this field? The maximum number of judges which can be appointed additional judges to the Central Criminal Court is entirely a matter for the City of London. They deal with this under a City of London Various Powers Act. The City pay for the judges and for the Central Criminal Court and how many courts there are is entirely a matter for them. For the last three years I have been in the position that although there are only four regular courts at the Central Criminal Court, another was carved out on the ground floor and the Library and a committee room were turned into courts. There are no more rooms which might be turned into courts.

635
I can appoint commissioners but I cannot appoint any additional judges because the maximum number has been reached, and there was no City of London Various Powers Act under which action could be taken.
When this question was taken up with the City (they are always very generous in these matters) they found a building immediately opposite and quickly produced three temporary courts to which I could appoint commissioners to sit. But that was all I could do, and the state of things at the Central Criminal Court has been getting worse and worse. Men who could not get bail have been staying in prison for three or four months before their trial—men who, when they are tried, may be found to be innocent. When at long last the City of London produced a Various Powers Bill last Session, it got hung up in another place, not over the increase in the number of additional judges but because of something to do with the City walk-ways and, I think, something to do with Epping Forest. This shows the Lord Chancellor's difficulties. The noble Marquess, Lord Aberdeen and Temair, encouraged me to appoint women. I am, my Lords, the first Lord Chancellor to appoint a woman High Court judge. I have recently appointed a county court judge and two stipendary magistrates who are women; so that, I think, is one score on which I cannot be attacked.
I come to what was said by the noble Lord, Lord Goodman. So far as appointments are concerned, there is no doubt at all that the whole standard of the High Court Bench and of the county court Bench has markedly improved since the time when I was called to the Bar; and I know of no lawyer who would think otherwise. If that is so, I suggest (leaving aside for a moment the question of solicitors) that so far as the Bar is concerned it seems that whatever method the Lord Chancellor employs has had a satisfactory result. I agree with the noble Lord, Lord Conesford, and with the noble Lord, Lord Ilford, that if that is so, there is a good deal to be said for leaving the method of appointment as it is. I will come on later to the question of solicitors.
The method of appointment is a simple one. The work is done by the Lord Chancellor himself, and he consults any-
636
one he thinks fit. It is much more important, I think, than anything else the Lord Chancellor does, more important than his office as Speaker of this House, and more important than his Cabinet work. Because however good the law is, if a judge is appointed who ought not to have been made a judge then everything is wrong. If I am asked what my qualifications are, I can only say that I have spent my whole life among barristers. I was a member of the Bar Council for four years before the war and for four years after the war, and subsequently I was twice elected Chairman of the Bar Council. I have visited every Bar in the country, and therefore I really do know the Bar. It has been suggested that a statutory obligation should be put upon the Lord Chancellor to consult some laymen, but I do not know who the laymen would be. If I had 40 applicants for county court judgeships and one had to be appointed, what laymen I have to ask about these 40 men, most of whom I know myself, I do not know.
The question of the appointment of solicitors is a very old one. This Bill is
"… to make provision with respect to the maximum numbers of Lords of Appeal in Ordinary and certain other judges."
I apprehend that the introduction of the appointment of solicitors would be outside the objects of the Bill, but it is a very appropriate point to raise in discussion. My difficulty is that the Bar Council and the Law Society, and nearly everybody I know who has been into this point, is of opinion that the public interest is best served by having a divided profession rather than a fused profession. But this is very much a matter on which people may differ. The noble Lord, Lord Goodman, is a fervent fusionist.
If we are going to retain a divided profession, then we ought to think before we alter the balance between the two halves of the profession. I think that in a small country like this, with a large population, and on the whole a reasonable railway and road transport system, a divided profession gives a better service to the public. Under any system those who do High Court advocacy are a separate body. In America, there is the Trial Lawyers' Association, which is more or less a Bar. The large firms have

637
an advocacy partner. In New Zealand there is a fused profession, which is gradually becoming defused, because although there are firms in which barristers and solicitors are practising together, the advocacy work is done by the advocacy partner. A few years ago somebody applied for a new practising certificate as a barrister only, left his firm and set up on his own to do High Court advocacy only and then only on the instructions of a firm of barristers and solicitors. This has become popular with small firms, because one of the first things that happens on fusing the profession is that whenever the small firms find High Court litigation which they cannot do, it has to be sent on to large firms and their clients do not come back. The small firms all went to this High Court barrister. A member of the New Zealand Bar who came to see me a few years ago told me that there were then six barristers only, and as they were in court every day, and the advocacy part was only occasional for large firms, the latter were no match for the former, and it was only a question of time before the barristers only got an exclusive right of audience. Here we see a fused system become defused, not on any theoretical ground, but simply because under any system those who do High Court advocacy are a separate body, because High Court advocacy is a different function.
Medicine is a fused profession. There is nothing to stop any doctor with the requisite qualifications from being a general practitioner in the morning and a consultant and surgeon in the afternoon, though that would not work because surgeons are a separate profession who have to see in the mornings those whom they operated on the night before. In 90 per cent., or whatever it may be, of the cases who go to see doctors, they are looked after by the doctors all right. Only occasionally does the doctor say that they have to see a specialist or surgeon. In the same way, in 97 per cent. of cases solicitors are perfectly capable of dealing with their clients' problems, and only in 3 per cent., or whatever it is, do they have to say that this means High Court litigation and that the client ought to see a barrister or, for instance, that the client's tax position is much more complicated than any tax matter he has
638
met before and that he ought to get an opinion of a counsel who is a specialist on taxation.
One of the last cases I was in was a long case that took a great judge six weeks to try. My opponent in the Court of Appeal talked for three weeks before I had a chance of saying anything at all. Every night I had to study the cases he had cited during the day. How can one be a solicitor at the same time, answering correspondence, seeing other clients and making diary entries? The thing is impossible. That is why we have. High Court advocates who spend their lives in the High Court. It has been the practice in England to appoint judges from those who have spent their lives doing this, and every High Court judge knows exactly what is going on behind an action. If he sees a barrister turn round and whisper to his solicitor he has a pretty good idea what he is saying.
Solicitors have never had this responsibility. It might be said that if they have not had this responsibility because the Bar has a monopoly of High Court work, why not, while keeping a divided profession, let solicitors appear in High Court cases? I think that this is completely impossible and untenable, for this reason. There are all sorts of things of which solicitors have the monopoly which barristers are strictly forbidden to do. They are not allowed to deal with clients directly, or to make any financial arrangements with clients. They are not allowed to do conveyancing. There are some very fine conveyancers in the Chancery Division who are conveyancers to the court, but they are not allowed to do any conveyancing for clients. This is the solicitors' monopoly. They are not allowed to go on the boards of client companies. Some solicitors do very well indeed by being directors of large companies.
What do barristers get in return for this? They get two things only: judges are appointed from the Bar and they get a monopoly of High Court advocacy. If these were taken away, who on earth would be a barrister? There would be no possible object in being a barrister—you have only to be a solicitor and you could do everything. This would be fusion. People like the noble Lord, Lord Goodman, might be in favour of fusion. To say that we should keep a divided

639
profession and let solicitors share the only two privileges the barristers have is equivalent to a fused profession.
It is an interesting subject, one on which no doubt different views may be held, but unless and until it is decided that we should be better off with a fused profession, any Lord Chancellor concerned with the question of appointments ought to hesitate before he makes some radical departure from the existing balance between the two halves of the profession.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

CONSUMER PROTECTION BILL [H.L.]
4.30 p.m.
THE MINISTER OF STATE, BOARD OF TRADE (LORD BROWN): My Lords, I beg to move that this Report be now received. I wonder whether, in moving this Motion, I might have your Lordships' permission to draw attention to an omission on my part on the Committee stage. In the course of the discussion on recommitment of the new clause relating to improvements proposed to be inserted after Clause 30 I gave the impression that the court in a criminal case has power to order an acquitted defendant to pay the costs of the prosecution. The noble Lord, Lord Cawley, questioned this. I am advised that he was quite right, and the court has no such power.
Moved, That the Report be now received.—(Lord Brown.)
BARONESS BURTON OF COVENTRY: My Lords, I wonder whether I may make a few remarks concerning the timetable of this Bill. As the House will recall, the Second Reading took place on November 14. Two weeks later, on November 28, other noble Lords were good enough to support the protest that I made concerning the way in which matters had been arranged, resulting in the proposed Committee stage due to commence that day coming on so late that day that it had to be postponed. We then had three Committee days, November 30, December 4 and December 5. I think it would not be unfair comment to say that the outcome of these three days was less than satisfactory.
640
On December 14 the Government moved for recommitment of the Bill on the Monday following, December 18, instead of taking the Report stage on that date. The noble Lord, Lord Brown, had been good enough to write to those Members particularly interested in this Bill on December 12 explaining, among other details—and I quote:
"We will ask to delay the consideration of Clause 11 with its special difficulties until after Christmas."
This might be the moment to explain, for the benefit of those noble Lords who have not been involved personally in these discussions, that Clause 11 is the main clause of the Bill. Again I think it would not be unfair comment to say that this clause as originally drafted was unsatisfactory, as admitted by the Government during the Committee stage on December 4, when they stated their intention to redraft Clause 11. We then come to the first day of Recommitment, on December 18, and from there move on to the second and final day, January 22, last week. This was six weeks, all but one day, from the Minister's letter of December 12, and seven weeks from the statement made in Committee on December 4.
At the commencement of business on January 22 I asked if it was the intention of the Government to make a statement on Clause 11, to which the Minister replied that he would do so on the then next Amendment. To me it seemed discourteous to the House, and particularly to those noble Lords who had given a great deal of time to this problem, that we should be expected to discuss that day, seven weeks after we had been told that the clause would be redrafted, a Bill without this vital part. The Minister (it appears in col. 22 of Hansard for that day) apologised for the fact that the redraft was not ready. At col. 28—and I trust that I paraphrase him fairly—he did not consider that Clause 11 would be available to us even on Report, and he hoped we should agree that the Bill should be passed without the drafting of the ideas he had put forward, leaving those items to be dealt with in another place.
The noble Lord, Lord Drumalbyn, at cols. 31 and 32, said:
"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

641
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. I cannot for the life of me see why the same process should not apply in reverse."
That is quite true, and I should not dream of dissenting. But it is not the point at issue here, and it is not what I was putting forward that day. The noble Lords, Lord Drumalbyn and Lord Brown, spoke of the length of time the Bill had been in this House, and advanced this as a reason for not waiting for Clause 11. I think that what I have said earlier to-day shows where any responsibility for this lies, and it is not with your Lordships.
To-day we are being asked to pass a Bill without having before us the main clause. There is no question of our thinking that what we send from this House to another place should be perfect and in no need of amendment. But surely we should at least be able to see what we are sending, and to amend it ourselves in the first place. I think all this is discourteous to your Lordships' House. I think it shows a contempt for the work that we do, and I suggest that we should not have been asked to take the Report stage until the redrafted Clause 11, the main clause of this Bill, was available to us for consideration.
LORD AIREDALE: My Lords, I should like to support every word of what the noble Baroness, Lady Burton of Coventry, has said. I can understand that a situation may arise in which during the course of a Bill through one of the Houses of Parliament somebody suddenly discovers some lacuna, and when, because the next stage of the Bill is arranged for the following week, the Government may say: "We will, of course, look at this, and we shall have to do some redrafting. We have only discovered this now, and it cannot be done before next week". But we are not discussing that case at all. As the noble Baroness has said, this matter has been under discussion between, I understand, the Board of Trade and interested bodies for seven weeks; and still Her Majesty's Government have not been able to redraft an important clause of their own Bill. I think there are differences of opinion as to how important the clause is. I believe the noble Lord, Lord Hawke, thinks that Clause 11 is a bad clause, and that any
642
redrafted Clause 11 is going to be a bad clause; and it may be that that is so.
What I would say is that, if there is any danger of there being an unsatisfactory new version of Clause 11, let us see it in this House of Parliament before the Bill is passed by this House: because surely the general rule must be that this House is failing in its duty if it passes a piece of legislation which it knows to be in an unsatisfactory state. Are we to be told that it will be quite all right because it will be put right in the House of Commons; that the Bill will then be reintroduced into this House, and we shall be able to see the redrafted Clause 11? If that is going to be said, are we quite sure that we shall not be told, when the Bill comes back to us: "It is getting rather late in the Session, and there is not very much Parliamentary time. Do you want to endanger this Bill altogether? Are you going to risk a disagreement with another place?". This is going to make it very embarrassing for us if we find that genuinely we wish to amend a redrafted, important clause which we had never seen on the fiat occasion when the Bill was before us.
I think this is an important constitutional point. I venture to suggest that the noble Baroness is quite right when she says that the House is being treated with discourtesy. Why did not the Board of Trade use the Parliamentary timetable as something with which to goad the interested bodies whom they were consulting? Why did not the Board of Trade say to those people: "Come along; you must give us your views in time to put the redrafted clause in front of the House of Lords, because this we have to do." I think this is a most unsatisfactory state of affairs, and a reason why we should not receive this Report to-day.
4.40 p.m.
BARONESS ELLIOT OF HARWOOD: My Lords, may I say that I think my office must have been an interested party, since a discussion has been going on between the Consumer Council legal side and the Board of Trade, and I have seen a draft of Clause 11 which we in the Consumer Council put forward ages ago. No doubt it was not satisfactory, but it was put forward long before Christmas. Therefore, I think we must have been—and I am grateful that this should be so—treated as an interested party.

643
With regard to what has been said by the noble Baroness, Lady Burton of Coventry, I think that she has put the whole timetable very clearly. It seems odd to me. I am not very experienced in these matters, but I do not understand why, after seven weeks or eight weeks, during which interested parties have been consulted and discussions have been going on, we should still not have any redraft, and we should discuss here to-day, on Report, Amendments to Clause 11, which apparently is going to be taken out of the Bill anyway, because evidently it it is not a clause the Government want. Otherwise, the noble Lord, Lord Brown, would be backing it. As I understand it, he has not been doing so, and a completely new clause is going to be put up in another place.
This procedure is rather mysterious, and I simply do not understand it. I should have thought that there had been plenty of time to bring forward a new clause. If this clause is not the one which the noble Lord and the Board of Trade want, why is there not a blank, so that we do not waste time discussing it at all, but simply wait until a new clause comes up? My own feeling is that we should have been able to have a clause which we could discuss, which would be recognisable and which another place was going to discuss; but that is something we simply do not know about at all.
LORD STRABOLGI: My Lords, I should like to say, with great respect to my noble friend Lady Burton of Coventry, and the noble Lord, Lord Airedale, that I am afraid I cannot agree with them. I must apologise to my noble friend because I did not hear all of her speech, but I know very well what she thinks about this matter—indeed, she referred to it on the Committee stage. But we cannot have it both ways. All the way through our proceedings on this Bill, on the Second Reading and all the way through the Committee stage, we have urged the Government to consult with the interests concerned themselves before clauses are drafted. Here we have an offer by my noble friend the Minister to consult with the interests concerned and to get the clause right. These consultations take time, a very long time,
644
and rather longer than I think the noble Baroness, Lady Elliot of Harwood, gives credit for.
BARONESS ELLIOT OF HARWOOD: Eight weeks seems a long time.
LORD STRABOLGI: There are a great many interests concerned and to be consulted, and I think it is important that this clause should be drafted in the correct way. We have had many examples of clauses drafted somewhat naïvely and without experience and without consultation with the interests concerned. One example concerned the food labelling regulations, which were in a most chaotic state, and indeed are still by no means satisfactory. That, of course, relates to another Department. Here we have the Board of Trade, who I think have been most co-operative throughout, making an offer and I think we must give them a chance to get this clause right. It can then be submitted to the other place, and afterwards this House will have another chance to consider it when the Bill returns here.
LORD DRUMALBYN: My Lords, I find myself in agreement with the noble Lord, Lord Strabolgi, rather than with the other noble Lords who have spoken, for this reason. One does not normally from one Front Bench come to the aid of a Member on another Front Bench, but I think that the noble Lord, Lord Brown, has been conducting this matter with the utmost frankness, and I think that in this case he is a victim of his own frankness. It would have been perfectly easy for him to let this clause go as it was. And, mark you, the clause is workable; there is no doubt in it as it now stands. He could have done that without telling your Lordships that he was intending to amend it in another place, and no one would have complained at all.
LORD AIREDALE: My Lords, it would not have been honest.
LORD DRUMALBYN: I have said that I think the noble Lord has been extremely frank in the way he has dealt with this matter, and I do not think he should necessarily be pilloried because he has been frank. We had before us a clause that is perfectly workable. It is perfectly easy for the noble Baroness—she has

645
Amendments down to this clause—to put her points. The Government, I am certain, will take into account the points she has made, and those points may influence the further drafting of the Bill.
If—I say "if"—an Amendment is made in the other place the Bill will return here. If it now goes to the Commons there is a great deal more chance of its coming back to us in time for us to have a proper discussion of it, than if it is held up until further consideration of the Bill takes place. On the other hand, the noble Lord, Lord Brown, has made it quite clear that it is by no means certain it will prove feasible to amend the clause as it now stands, to redraft it altogether; and I, for my part do not think there would be any great tragedy in that. I think we ought to proceed with business and agree to this Motion. I hope the noble Lord will be allowed to have his say, and I hope your Lordships will accept what he has to say because I think he deserves some credit in this matter.
LORD BROWN: My Lords, I am extremely grateful to the noble Lord, Lord Drumalbyn, for what he has said, because I was feeling a little ill done by as a result of the remarks made. I make this short statement because, whether it is due to words I have used, or to those who heard them, there is certainly confusion about this matter. First, Clause 11 is not the main clause of the Bill, though opinions will differ on this. It is a very important Bill, notwithstanding this clause. Secondly, the clause, as Lord Drumalbyn said, could quite well stand as it is now in its amended form. It would certainly render some additional protection to the consumer as it is, and it is enforceable as it stands. Thirdly, the alterations to which I referred at the last Committee stage are not necessarily alterations that it will be possible to make. They have to be worked out. I cannot commit the Government and have not done so, to making further alterations, and there may not be a complete redrafting of the entire clause; there may be an addition to the clause as it stands.
Fourthly, we have not had eight weeks to consider a redraft, because previous discussions about Clause 11, and consultations with interested parties, did not throw up in any form whatever a feasible
646
idea for carrying out the original intentions of the Bill. Nor, with respect to this House, has such an idea arisen here which would have made the protection originally envisaged in such a way that it would be enforceable at law. The officials who have been handling this matter have spent weeks trying to devise a method of drafting this clause which would render it enforceable at law, and up to five days before the last Committee stage no feasible idea had arisen. So the idea which I disclosed to the House—very unwisely, I think now—had been under consideration for perhaps as little as four days, and there had certainly been no time for consultation about this particular idea. Fifthly, we have not therefore yet consulted at all on this particular idea, and it will take time to do so. We must go to some of those whom we previously consulted to see whether or not it is feasible.
That is as clear a statement as I can make of the situation, and I can only add this. With the best will in the world we in the Board of Trade, or the Government, cannot produce ideas at will to make the intentions of some noble Lords in this House workable. It is not always possible to solve every problem presented to us. And if, indeed, the ideas which might turn out to be workable come rather late in the day, instead of earlier. I cannot accept that as condemnation. Rather I think I should be congratulated for going on thinking about this until the end of the day to see whether we could produce something; and if something can be made workable by some very skilled drafting and is produced at a late hour, I think it is hard for me to be accused of all I have been accused of simply because I went on trying.
On Question, Motion agreed to.
Clause 3:
False trade description.
3.—(1) A false trade description is a trade description which is false to a material degree.
4.50 p.m.
LORD AIREDALE LORD AIREDALE moved, in subsection (1), to leave out "A false trade description is" and insert "In this Act a false trade description means". The noble Lord said: My Lords, I am sorry

647
to weary your Lordships with this Amendment yet again, because I moved it at the last stage in almost exactly the same form as it is now. The reason I am moving it is that subsection (1) of Clause 3 really is rather unsatisfactory, because, as I think all will agree by now, this short subsection is simply a misstatement of fact. It is an untrue statement and any intelligent school child reading that subsection could say: "That is simply a misstatement of fact; it is untrue".
I seek to amend that subsection by inserting the word "means" instead of the word "is". On the last occasion those of us who are in favour of this Amendment were absolutely on the point of dividing your Lordships upon it when, at the very last second in the debate, a noble Lord who is well known as an expert in merchandise marks matters made a speech of five lines, which I will quote:
"The first part of this subsection has been in the Merchandise Marks Act since 1887 and appears to be all right, and I do not think we ought to tamper with it."—[OFFICIAL REPORT, 18/12/67, col, 1305.]
I entirely agree that what has been all right since 1887 ought not to be tampered with, but when one looks at the Act of 1887 to see what ought not to be tampered with one sees that the wording is this:
"The expression 'false trade description' means a trade description which is false in a material respect."
That is almost exactly what I seek to insert in this Bill by means of this Amendment. I hope Her Majesty's Government will at last accept this Amendment and will not cling to subsection (1) as it is worded at present, consisting of one and a half lines which any school child could see is an untrue statement as it stands. I beg to move.
Amendment moved—
Page 3, line 9, leave out ("A false trade description is ") and insert ('In this Act a false trade description means").—(Lord Airedale.)
LORD DRUMALBYN: My Lords, I should like to put a point to the noble Lord, Lord Brown. We have regarded it as a great improvement that "false" should mean "false to a material degree" for the purposes of this Bill. We think this is a point of great substance. If the noble Lord will look at the con-
648
struction of this sentence he will see that virtually it amounts to (x = x - y) and we are afraid that the "y" may be nothing at all in that case. I do not think this is likely to mislead many of Her Majesty's judges as to what is meant, but at the same time I think it is much more correct to say that "a false trade description means a trade description which is false to a material degree". I would also invite the attention of the noble Lord to the Labelling of Food Regulations 1967 (No. 1864) (Food and Drugs) in view of what the noble Lord said about definitions. If he will look at pages 3, 4 and 5 he will find that almost every one of the interpretations, if it does not say "includes" says "means". For example, "'flour confectionery' means any solid or semisolid product …" Since we are giving an artificial interpretation to a particular phrase and not a natural definition, I should have thought "means" was obviously correct. I hope that at last the noble Lord will be able to accept this Amendment.
LORD BROWN: My Lords, as has been pointed out already, this Amendment has been debated twice, once in Committee and again on recommitment. I recited at great length at the last stage the reasons why I did not see my way to accept the Amendment, and I do not propose to go over the whole ground again. There is a clear difference of opinion in regard to this matter. Clause 3(1) is commonly interpreted as "for the purposes of this Bill". This is always in front of these definitions. I can see absolutely nothing wrong with the words:
"A false trade description is a description which is false to a material degree".
The interpretation at the beginning is commonplace. I think the noble Lord is quite wrong. The subsection does not make a statement of fact; it lays down a rule of law, namely, that in this Bill a false trade description is a trade description which is false to a material degree. I am afraid if he cannot see my point of view, and I certainly cannot see his, we must agree to differ, but I hope the noble Lord will withdraw the Amendment.
LORD AIREDALE: My Lords, I think that last sentence is a fair summary—we must agree to differ.
5.0 p.m.
On Question, Whether the said Amendment (No. 1) shall be agreed to?
THE LORD CHANCELLOR: My Lords, there being an equality of votes, in accordance with Standing Order No. 49 (which provides that no proposal to amend a Bill in the form in which it is before the House shall be agreed to unless there is a majority in favour of such Amendment), I declare the Amendment disagreed to.
Clause 6 [Offer to supply]:
5.5 p.m.
LORD BROWN: My Lords, when we were considering Clause 6 in Committee, the noble, Lord Cawley, pointed out that it spoke of a person being deemed to offer goods for supply, whereas Clause 1 spoke of a person offering to supply goods. This Amendment, which is identical with the suggestion for improvement of the clause made by the noble Lord during our earlier debate, removes this inconsistency. I beg to move.
Amendment moved—
Page 4, line 28, leave out ("them for supply") and insert ("to supply them").—(Lord Brown.)
Their Lordships divided: Contents, 38; Not-Contents, 38.

CONTENTS

Airedale, L. [Teller.]

Denham, L.

Morrison, L.

Alport, L.

Drumalbyn, L.

Mowbray and Stourton, L.

Ampthill, L.

Effingham, E.

Moynihan, L. [Teller.]

Auckland, L.

Foot, L.

Ogmore, L.

Bannerman of Kildonan, L.

Fortescue, E.

St. Aldwyn, E.

Barrington, V.

Greenway, L.

Stamp, L.

Beaumont of Whitley, L.

Gridley, L.

Strange of Knokin, Bs.

Boston, L.

Grimston of Wes

Strathcarron, L.

Bridgeman, V.

Howard of Gloss

Teynham, L.

Byers, L.

Ilford, L.

Thurlow, L.

Clwyd, L.

Kinnoull, E.

Wade, L.

Colville of Culross, V.

Meston, L.

Ypres, E.

Craigmyle, L.

Mills, V.

NOT-CONTENTS

Addison, V.

Delacourt-Smith, L.

McLeavy, L.

Attlee, E.

Donaldson of Kingsbridge, L.

Maelor, L.

Beswick, L.

Douglas of Barloch, L.

Phillips, Bs. [Teller.]

Birdwood, L.

Faringdon, L.

Popplewell, L.

Bowles, L. [Teller.]

Fiske, L.

Raglan, L.

Brockway, L.

Gaitskell, Bs.

Rhodes, L.

Brown, L.

Gardiner, L. (L. Chancellor.)

St. Davids, V.

Burden, L.

Henderson, L.

Shackleton, L. (L. Privy Seal.)

Burton of Coventry, Bs.

Heycock, L.

Silkin, L.

Carron, L.

Kilbracken, L.

Strabolgi, L.

Champion, L.

Latham, L.

Summerskill, Bs.

Chorley, L.

Leatherland, L.

Taylor of Mansfield, L.

Collison, L.

Lindgren, L.

Resolved in the negative, and Amendment disagreed to accordingly.

LORD CAWLEY: My Lords, I am grateful to the noble Lord, Lord Brown, for this Amendment. I think it is interesting that in the former Bill in the last Parliament this error went all the way through this House to another place and nobody noticed it here, including myself. I would thank the noble Lord again.
On Question, Amendment agreed to.
Clause 9:
Information, etc, to be given in advertisements
9.—(1) Where it appears to the Board of Trade necessary or expedient in the interest of persons to whom any goods ate to be supplied that any description of advertisements of the goods should contain or refer to any information (whether or not amounting to or including a trade description) relating to the goods the Board may, subject to the provisions of this Act, by order impose requirements as to the inclusion of that information, or of an indication of the means by which it may be obtained, in such description of advertisements of the goods as may be specified in the order.
LORD DRUMALBYNmoved, in subsection (1), to leave out the second "of" and insert "offering to supply". The noble Lord said: My Lords, this Amendment also looks like a purely verbal one,

651
but it is not. The purpose of the Amendment is to restrict the power of the Board of Trade to make orders requiring information to be given in advertisements which offer to supply goods; that is to say, those which invite readers to purchase goods by writing to the advertiser direct and ordering. First, may I say a word about the background of this clause? I have searched the Molony Committee Report in vain for a recommendation that the Board of Trade should be given such a power as is given in Clause 9. It is true that Molony thought that more information should be given in advertisements, but, so far as I can see, the Report did not recommend that powers should be sought to require it to be given.
Secondly, in Committee, your Lordships tried to elicit from the Government what justification there was for requiring such a power as is contained in Clause 9 and how the Board of Trade proposed to use it, and the noble Lord, Lord Brown, said:
"It might for instance be a good thing for shoppers to have their attention drawn in advertisements to the fact that particular equipment may be needed with the goods, such as plumbing with a washing machine."—[OFFICIAL REPORT, 30/11/67, col. 325.]
It would certainly be reasonable if the advertiser intended the reader of the advertisement to place an order for a washing machine by post or telephone in response to the advertisement; he should warn the buyer that the expenditure might not be limited to the cost of the washing machine. But if the advertisement was merely intended to encourage the reader to think of buying a washing machine, or in particular buying the washing machine actually advertised, such a warning would not be necessary, because the reader would naturally go to the dealer and inquire, and compare the merits of different machines and the prices, the installation costs, credit terms, all the rest of it.
One cannot legislate for extreme cases. I remember a lady in the Outer Hebrides instructing my mother many years ago to buy her a washing machine. My mother then inquired whether there was any electricity in this part of the Outer Hebrides, and of course there was not. One cannot legislate for that sort of thing.
652
The noble Lord went on to say:
"We cannot agree that the power should relate only to safety. There is, for example, mail order selling."
And he said, in regard to goods bought as a result of mail order selling:
"You may have to make clear that if they are bought, the cost does not stop at the price of the goods: there may be substantial installation charges to be met."
I am inclined to concede that, but only for the reason that the prospective customer in mail order selling is being invited to order goods without having had a chance to inspect them or to ask questions about them; that is, without having had a chance to behave like a normal, sensible shopper. The purpose of this Amendment is to cover all such cases: the bargain spaces in Saturday popular newspapers, mail order catalogues, advertisements containing coupons for ordering the goods, which coupons the readers are invited to fill up and return to the advertiser and so on. I would suggest to your Lordships that so far the noble Lord has not attempted to make out a case for anything more than this; yet the clause as drafted applies to any kind of advertisement for any kind of goods.
I recognise that the Government have already amended the clause, and we are grateful for that. They have amended it so as to make it necessary for an order to prescribe the description of advertisement to which the order applies. But it still remains true that the order can cover any kind of advertisement. We are still being asked here to give the Government an absolutely blank cheque. The provision about consultation is only a safeguard if the Government will accept the advice tendered when they consult, and this, in the most recent example, the case of food labelling, they have signally declined to do.
I have tried in vain to find out whether the expression "information relating to the goods" which is involved here covers terms of sale. I hope that the noble Lord will be able to answer this question at least, because what we are trying to do is to find out what the Government envisage they want these powers for. I suggested at an earlier stage that they might want them to cover terms of sale. We learn from a Written Answer by the Minister of Technology in another place last Thursday that the President of the

653
Board of Trade is studying the suggestion contained in the Report of the National Board for Prices and Incomes on television and radio rental and relay charges—
"about the desirability of requiring suppliers to include in advertisements information about charges payable over a period of years."—[OFFICIAL REPORT, Commons, 25/1/68 col. 187.]
As I have had to study this subject myself, I know how difficult it is to lay down requirements about information that will not tend to confuse rather than enlighten readers, because of the infinite variety of credit terms, terms of one sort or another, that are offered. And I would say that one cannot hope to require all the information that would be needed by all readers with their wide variety of wants. All one can do is to try to ensure that such information as is given is not presented in a way that is liable to mislead; and this clause is not needed for that purpose. Perhaps the noble Lord can tell us at any rate whether the clause as drafted would enable the Board of Trade to require the kind of information the Prices and Incomes Board has suggested might be desirable, and whether information about rental terms varying over a period of years is "information relating to the goods", or whether it is merely information relating to the sale of the goods. I wonder, also, whether it covers hire-purchase terms. Does it cover price?
The main point I would drive home here is that, while ordinary advertisements may induce people to decide to try something relatively inexpensive, sensible folk will not be persuaded by an advertisement to buy or hire some costly piece of equipment without making further inquiries; and therefore there is no need to give the Government power to make orders requiring information to be included in advertisements, except in those circumstances where they are being invited to buy on trust some fairly expensive piece of equipment. For that reason, I am moving this Amendment to restrict the power to those advertisements which offer to supply goods and invite people to order them without inspection and further inquiry. This is the purpose of the Amendment, and it is the purpose of this Amendment that I commend to the noble Lord. I beg to move.
Amendment moved—
Page 5, line 31, leave out second ("of") and insert ("offering to supply").—(Lord Drumalbyn.)
5.16 p.m.
LORD BROWN: My Lords, I may have misled the noble Lord in the previous discussion on this matter by emphasising one part of my argument against a similar Amendment which he put down, and possibly dealing with the other part of it from innuendo. The point is, I am advised, that as drafted this Amendment would restrict the scope of the clause in a considerably more drastic manner than the noble Lord himself understands at the moment. If, as an hypothesis, I had been able to accept the arguments that the noble Lord has just presented, which on balance I do not, I should still have been unable to accept this Amendment for the following reasons.
The expression "offer to supply" has a well-recognised legal meaning. It is an expression used to signify a firm offer to enter into a contract, the mere acceptance of which offer makes the contract binding. I understand that few advertisements would amount to offers to supply within this interpretation, for if they did it would mean that any person could accept the offer contained in an advertisement and take the advertiser to court if he failed to supply the goods. But this is not the position. On the contrary, most advertisements would merely be regarded as, at most, invitations to treat.
There is a serious risk that if we were to accept the Amendment the courts would interpret "offering to supply" in the strict sense, and the power of the Board of Trade to require advertisements to contain information would be restricted to the small minority of cases where an advertisement actually amounted to an offer to supply within the strict legal meaning of the phrase.
We have on earlier occasions discussed at great length our reasons for seeking the powers proposed in Clause 9, and whatever views some of your Lordships may have on that proposal, I think you must all agree that the restriction on its use which this Amendment would impose would be inconsistent with the designed purpose of the clause. It is for this reason that the Amendment is not acceptable to the Government, and in view of the possible new light that I have thrown

655
on the meaning of the words proposed, I hope that the noble Lord will see fit to withdraw his Amendment.
LORD DRUMALBYN: My Lords, of course, in the end I am bound to withdraw my Amendment, in view of the noble Lord's explanation. But the purpose of the Amendment has not yet, unfortunately, been served, because we have got no nearer towards seeing for what reason the noble Lord wants the powers of Clause 9. This was the purpose of moving the Amendment, and I had hoped that he would at least be able to answer my question as to whether it covers the matters referred to by the Minister of Technology in another place about rentals; also, whether it covers price, and whether it covers credit and hire-purchase. I think all these are relevant questions. If my Amendment were in suitable terms to effect its meaning—
LORD BROWN: My Lords, before the noble Lord proceeds further, may I just say that I am sorry I omitted to answer these questions. If the clause were left as it is, I think there is little doubt that it would be able to deal with the issues which the noble Lord raised. But it is clear that if it were amended as proposed there would be great danger that it would not be able to deal with it.
LORD DRUMALBYN: My Lords, if it can deal with those things, then it can deal with almost anything. This has been the complaint about the clause, that it is exceedingly wide. I feel certain that the Government will be pressed very hard in another place to say what they mean by this and will be asked to try to restrict the powers to what they really envisage they require. They cannot want everything. While I ask leave to withdraw the Amendment, I do so feeling considerable regret that, in the course of our long discussions, the Government have not been able to make clear the purposes for which they want the clause. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.22 p.m.
LORD BROWN: My Lords, when we last discussed this clause the noble Viscount, Lord Colville of Culross, pointed out that the private individual advertising his private possessions for sale
656
could not reasonably be expected to know whether there was a Clause 9 order in force applying to that kind of advertisement. On reflection, I think it is a little anomalous that the offence in this clause is not expressly confined to people acting in the course of trade or business. This Amendment would put matters right by limiting the offence of publishing an advertisement which fails to comply with an order to cases where the offending advertisement is of goods which are to be supplied in the course of any trade or business. I hope that this will seem reasonable to your Lordships and that you will accept the Amendment. I beg to move.
Amendment moved—
Page 5, line 43, after ("advertisement") insert ("of any goods to be supplied in the course of any trade or business").—(Lord Brown.)
LORD DRUMALBYN: My Lords, on behalf of my noble friend Lord Colville of Culross, I should like to thank the noble Lord for this Amendment. May I add one comment? This Amendment will have one interesting effect. There is a practice which is all too current, I regret to say, by which traders masquerade as people not in trade or business and offer, through the classified advertisements, to sell goods. They just give a box number or something of the kind, with the clear implication that they are not in trade or business and are offering goods merely as one individual to another. It is interesting to see that traders of that description will now be within the scope of the Bill, whereas the private individual simply using the classified advertisements to offer his goods will not. Am I right?
LORD BROWN: My Lords, that is a rather different point. I think, on reflection, that the noble Lord is right. If it is quite clear that an advertisement is inserted by somebody who is doing so in the course of trade or business, then he will be liable to be prosecuted if his advertisement is not in accordance with the law, and that the private person will not.
LORD HAWKE: My Lords, the insertion of this Amendment by the noble Lord, Lord Brown, points to the difficulties of this sort of clause. He has had to exempt any private person who

657
is advertising. One thinks of the hosts of people who are small traders advertising in local newspapers and that sort of thing. They probably do not belong to a trade association, nor have they time to read all the literature. When they go along to the local newspaper office to advertise something or other, who is to advise them whether the Board of Trade has decreed that advertisements regarding a particular type of goods must contain some particular form of information? Is it the local newspaper which will be expected to keep up to date with all the requirements of the Board of Trade, or what will be the position? Otherwise an immense burden of clerical work will be thrown upon everybody in the country by these silly sort of provisions.
LORD DRUMALBYN: Is the noble Lord going to answer that point?
LORD BROWN: My Lords, I shall do so with the permission of the House, since I shall be speaking for the second time on Report stage. My reply to the noble Lord, Lord Hawke, would be this. If a person is seriously engaged in a trade or business, I do not think that it is throwing an undue burden on him to expect him to be familiar with the laws of the land governing trades or businesses. This is the general condition as applied to the country in legislation. If we were to get into a bother because we felt that a certain number of traders would find it difficult to know the law, we should be bothering over every piece of legislation we pass through the House. With respect, I do not think that this is a valid objection.
On Question, Amendment agreed to.
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—

(a) a recommended price; or

(b) the price at which the goods or goods of the same description were previously offered by him;

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.
5.27 p.m.
BARONESS BURTON OF COVENTRY BARONESS BURTON OF COVENTRY moved, in subsection (1), to leave out paragraph (a). The noble Baroness said: My Lords, at column 19 of the OFFICIAL REPORT on January 22 I informed the noble Lord that I had not put down this Amendment for discussion on Committee stage as I was waiting for the amended Clause 11 on the Marshalled List. I ant now asking for the deletion of line 30, that is to say for the deletion of the words "a recommended price". If line 30 remains in the Bill, I suggest that, by implication, it might give official approval to the continued use of recommended prices. As I pointed out last week, the end of resale price maintenance has meant that more and more deceptive advertising has resulted from reference to recommended prices. I suggest that in the case of a minority of dishonest traders we have now reached a situation where recommended prices are almost being churned out for use. If the Minister does not believe me, or feels that I am exaggerating, then he has only to go and look for himself, or indeed to ask some of the many noble Lords who came up to me last week after the debate, from all sides of the House, to say that they themselves had noticed this particular habit.
Obviously, I am not the only person who is concerned about this, but I feel particularly involved since my Government—and I put the term "my" quotes, even if they are not very pleased with me at the moment—seem determined to let this happen. I believe that the practice will continue and will increase. On balance—and I would emphasise the phrase "on balance"—I believe that the shopper will be the loser. The Government do not accept this and at column 23 on January 22 the Minister said:
"Although there are undoubtedly a gnat 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."
With respect, such an argument does not seem to me to be worth a great deal. Why should we allow "phoney" recommended prices to continue and tie legislation to them simply because other traders are honest? This is something I find

659
very difficult to understand. What are we tying our legislation to? What validity have such recommended prices?
Last week in columns 20 and 21, I gave your Lordships two examples. It may be remembered that there was the quilt with a recommended price of 7 guineas and a retail value—retail, not wholesale—of £2 10s. Then we had the two-day sale notice containing the same quilt valued at 7 guineas. This time it came in a package, and the package comprised the quilt at 7 guineas, one pair of blankets, all colours, double size £5 10s., one pair of flannelette sheets, double size, £4 10s., two large foam filled pillows, Fomaprene, £2 12s. That gives a total of 19 guineas, which I take to be the recommended price; it was the price on the notice. But these were available for £5 to anybody who went to this sale.
I want to ask whether the Minister is really suggesting that we tie our legislation to things like this. There was a recommended price of 7 guineas and the retail value was 50s.; a recommended price of 19 guineas and the customer could have it for £5. I want to ask whether this is really what is being put to us to-day? As noble Lords may remember—and I quote once more from the relevant advertisement—we had the "genuine English executive framed briefcase made to sell at 4½ guineas", and in minute type elsewhere it said, "only 39s. 11d." Of course, there was no mention that the briefcase was plastic. Is this what we are supposed to link our legislation with? Such examples could be added to from all over the country.
I do not know whether the Minister saw the article in to-day's Sun which was about the ½ lb. packet of Typhoo tea. Prominent on the front of the packet is the price of 1s. 9d., but apparently it is difficult to buy this tea at 1s. 9d., because everywhere it seems to be cheaper than that. The article says:
"Firms like Tesco and Sainsbury are selling it at 1s. 6d. currently. And Woolworths—'making only a minute profit' said a spokesman—are charging 1s. 4½."
The reporter who wrote this article went to see the Typhoo Tea people. He asked the managing director about this price of 1s. 9d. on the packet, and the managing
660
director said, "The 1s. 9d. denotes the quality of the blend, and identifies it for the customer, rather than the price". This seems to me most extraordinary. There is my quilt at a price of 7 guineas, which apparently is not the price; it is just to denote the quality to the customer who can then have it for 50s. I really suggest that this does not make sense.
I see that my noble friend Lord Donaldson of Kingsbridge has come into the Chamber. In an adjacent article he was mentioned as the next Chairman of the Consumer Council. He "has some excellent ideas", says the article, and I am sure he has. It says
"After all, he did save £1 10s. the other day on a 10-guinea razor because he refused to recognise the 'recommended' price."
It seems to me that with recommended prices such as these there really cannot be any possible reason for tying any legislation to them. What are they worth?
Of course, I recognise that it might not be easy to frame adequate legislation, but that is why we are here. I suggest that it is not the job of Parliament to sanction dishonest practices by a minority of traders. Furthermore, I think that the majority of traders, the reputable traders, do not relish the prospect of their reputations being tarnished by rogues. What has been worrying me during the course of these debates, when, admittedly, some difficult Amendments have been put forward, is that it appears that much of the Board of Trade thinking, as put forward to us in these discussions, is based on a tendency to presume that anything in the Bill which might present a difficult problem to the prosecution should be deleted or certainly not added.
What I should like to ask my noble friend Lord Brown is this. Quite apart from what I am asking for, which is the deletion of line 30, does he not realise that the clause as at present drafted does not cover the case where a manufacturer with a retail outlet recommends a price which there is no intention of ever applying, and that for cases such as this lines 30 and 33 together in this clause are quite meaningless? As this becomes more and more apparent to these dishonest traders, so we are going to get more and more of these quite worthless recommended prices. I think it must be seen, in view of what was said earlier, how great are

661
the difficulties with which we are faced in discussing Amendments to legislation proposed but unseen. So I should like to make a final plea to my noble friend. As we do not have the redrafted Clause 11 before us, does he not consider that this Amendment at least merits his attention with the many others which he is now considering? I beg to move.
Amendment moved—
Page 6, leave out line 30.—(Baroness Burton of Coventry.)
LORD LEATHERLAND: My Lords, my noble friend Lady Burton of Coventry and I have, I think, walked hand in hand along the consumer protection lane for many years. I remember that when I was assistant editor of one of our daily papers, I was responsible for organising what the paper called a Fair Shopping Bureau, and vie had many consultations with my noble friend on that occasion. We found that there was a great need for some agency that would take up the complaints of people who had been swindled by dishonest shopkeepers.
I find some difficulty, however, in trying somehow to reach a middle way between what my noble friend says and what the clause says. If we do not have this particular line in, which will enable people to be punished if they falsely state that their price is less than the recommended price, then we are not going to take any cognisance whatever of a recommended price. But how are we then to put an end to this racket which labels so many goods "3d. off", "5d. off", and so on, because it is obvious that when a packet is labelled "3d. off" the recommended price must be what you pay—2s. perhaps—plus 3d. Without some provision such as is in the clause at the moment, I do not see how we are going to get rid of that difficulty.
My noble friend has mentioned getting for £5 goods alleged to be worth 19 guineas. I should think any housewife who had any sense at all would know that there was something wrong there. But women are very funny creatures, and if you tell them that they are getting for 39s. 11d. a hat which is supposed to be worth £5, they will convince themselves that they have undertaken a piece of very good shopping. Nevertheless, I do not see how we can delete this line,
662
although we know that many of the recommended prices are "phoney," if we are to tackle some of the grave evils which there are in the shopping world to-day.
But I do not know that the line as it stands in the Bill is beyond criticism, because when we talk of a recommended price, by whom it is recommended? Is it a price recommended by the manufacturer, is it a price recommended by the wholesale warehouseman, or is it a price that the retail shopkeeper has himself recommended by sitting down in front of his fire and thinking of a number? While I do not want to support the Amendment of my noble friend, it seems to me that something must be done to clarify this clause, and this provision of this clause, in some way before it will be really satisfactory.
LORD DRUMALBYN: My Lords, when I said that I thought the clause in its present state was workable, I am afraid I had overlooked the fact that at each stage I have put down an Amendment to try to do something about "recommended price". The noble Baroness, Lady Burton of Coventry, has done it this time, and the reason why I did not do it on this occasion was because the noble Lord said that the whole clause was going to be remodelled.
We are in a real dilemma here, because if we leave in the phrase "recommended price", then we have protection against people claiming that they are selling at less than the recommended price, if they are not in fact doing so. On the other hand, if we take it out, then people can say anything they like about recommended prices. They can put in any kind of recommended price at all. With great respect to the noble Baroness, I think that what she is after is quite right, but I do not think her Amendment would achieve it. It may be that the right course would be to stop recommended prices altogether, but that is hardly a function for this Bill. We have to decide what to do in relation to them so long as the recommended prices ale agreed. I think I am right in saying that "a recommended price" is a term of art which arises out of the Resale Prices Act 1964—I think it is Section 2 —and at an earlier stage I put down

663
an Amendment more or less to incorporate the definition from there. I think something has to be done, and I hope that the noble Lord will be able to tell us what to do about it.
LORD INGLEWOOD: My Lords, may I reinforce the plea of the noble Lord, Lord Leatherland, that somewhere, at least, there should be some definition of the phrase, "recommended price"? I must apologise that I have not been listening to all the debates during the course of this Bill, but I am much interested to see that those who have been studying this Bill throughout all its stages are no less confused than I am as to the meaning of this phrase. Even though it may be defined in another Statute, I think that, since this Bill is surely not intended to be a lawyers' Bill but one which every shopkeeper and every shopper is expected to understand, it would be greatly improved if it could be made clear, as the noble Lord, Lord Leatherland, has pointed out. Is it intended to be a manufacturer's recommendation, or is it intended to be a retailer's recommendation? And if it is neither of those things, what is it intended to be?
5.44 p.m.
LORD BROWN: My Lords, even a lawyer in my position would be taxed by some of the questions which have been put, and for an amateur in this matter this is indeed quite a trying experience on this particular clause. First, I think we had better get quite clear one or two things which have not been discussed yet, except perhaps by the noble Lord, Lord Drumalbyn. It is clear that we are confronted by two quite separate and distinct problems in discussing this Amendment. The first is the problem of the man who deliberately overstates the amount by which his price is lower than the recommended price, or who compares his price with a recommended price which does not in fact exist. That is one sort of offence. The second problem is that of the "phoney" recommended price, to which the noble Baroness has drawn attention.
It is with the first problem that the Bill as it is now drafted sets out to deal. Nothing in our reconsiderations has shaken my belief that the present provisions deal with the first problem, and
664
it is right that we should so deal with it. We have been told that "phoney" recommended prices have been quoted to a disturbing degree, and I agree with the noble Baroness and with other noble Lords who have spoken that this is a most distressing social problem. At the same time, we must recognise that many recommended prices are still perfectly genuine. The noble Baroness referred to them as being in the minority. I do not know—we have not done a census of all the recommended prices—but I think it might be rash to jump to the assumption that the genuine recommended prices are in a minority.
BARONESS BURTON OF COVENTRY: My Lords, I am sorry, but I must interrupt the noble Lord because he has got it completely wrong. I was very careful to emphasise that it is the minority which are dishonest.
LORD BROWN: I am sorry; I misunderstood the noble Baroness. If that is admitted, then, it would be dangerous to eliminate recommended prices if it is agreed that the majority are quite genuine. Even if the recommended price itself is a "phoney" one, an overstatement of the amount by which it is being undersold will in the great majority of cases be an offence which enforcing authorities can prove without undue difficulty. So that even in the case of the "phoney" ones there may be an opportunity of enforcing a better code of conduct than at present exists.
The fact that there is a second and, I suggest, quite separate problem is no reason why we should not deal with the first one, as the Bill already proposes. This is one of the primary reasons why we do not want to accept this Amendment: that it would allow a practice to continue which would become an offence if the Amendment is rejected; and to that extent we are making some inroad into what all the noble Lords who have spoken admit is a social ill. The argument that some noble Lords have put forward would almost add up to the idea that half-a-loaf is not better than no bread at all. We are not going to improve the position by making the use of recommended prices in a dishonest manner free from attack by the law at all. That is not going to help anybody.

665
Now may I move on to the second point? My noble friend Lord Leatherland and the noble Lord, Lord Inglewood, both want what I should like to have—a definition of a recommended price. We in the Board of Trade have not given up trying to tackle this matter. I am not going to commit myself again to rethinking on this and then be asked to delay the Bill until we have done our rethinking. I do not think we are going to reach a solution on this point. All sorts of ideas have been put forward and discussed, and we do not see our way through it; but we have not yet stopped thinking. If a definition of a recommended price can be produced which will enable us to separate the "phoney ones from the real ones, then we shall have gone a long way forward to protect the public from the sort of abuse to which the noble Baroness has drawn our attention. But it is one thing to wish for this sort of protection for the public; it is another thing to produce a law which is enforceable and which can be applied with reasonable consistency in the courts.
The noble Baroness has also commented to the effect that the Board of Trade seem to be highly reluctant to produce clauses that would stand any risk of not being able to avoid confusion in the courts. We are prepared to leave a great deal of hard work to the courts by way of interpretation, but what we are not prepared to do is to produce clauses in this Bill which are clearly unenforceable at law, because I think noble Lords will agree that the worst thing we in this House can possibly do is to add to the volume of unenforceable law that already exists. This does nothing but bring the law into contempt; and it also inhibits voluntary societies, who have done noble work on this whole question of protecting the consumer, from carrying on with their work as they have done in the past. So we should make the situation worse, not better. I hope that, in view of what I have said on this, noble Lords will agree that this is not a suitable Amendment, and I hope the noble Baroness will withdraw it.
BARONESS BURTON OF COVENTRY: In view of what the noble Lord has said, and hoping that he will be able to deal with the second part of the problem,
666
I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 18 [Time limit for prosecutions]:
LORD AIREDALE: My Lords, I reminded the Committee earlier that Sir Ernest Gowers had defined the word "either" as meaning, "one or other of two". In subsection (4) of Clause 18 "either" is made to serve the purpose of being one of three, so this word is being used for a purpose which it is not equipped to carry out. Furthermore, I think the inclusion or omission of the word "either" in this subsection makes not an iota of difference to the meaning of the subsection. It is quite superfluous in any event, and I beg to move to leave it out.
Amendment moved—
Page 10, line 26, leave out ("either").— (Lord Airedale.)
LORD STRABOLGI: My Lords, I hope that the Government will accept this Amendment. The wording in the Bill at present is an appalling piece of English and I think that what the noble Lord, Lord Airedale says, merits consideration.
LORD BROWN: My Lords, I am glad to be able to accept the noble Lord's Amendment and to express my pleasure that his determined efforts to improve the drafting of the Bill have once again been crowned with success.
On Question, Amendment agreed to.
5.52 p.m.
LORD DRUMALBYN LORD DRUMALBYN moved to add to the clause:
"(4A) Subject to the following provisions of this section, where proceedings are brought against a person for an offence to which sub-section (4) of this section applies, he shall not be convicted unless either—

(a) within twenty-eight days of the commission of the offence a summons (or in Scotland a complaint) for the offence was served on him; or

(b) within the said twenty-eight days a notice of the intending proceedings, accompanied by a summary of the facts upon which the charges are to be founded, was served on or sent by registered post or recorded delivery to him.

(4B) The requirements of subsection (4A) of this section shall in every case be deemed to have been complied with unless and until the contrary is proved.

667
(4C) Failure to comply with the requirements of subsection (4A) of this section shall not be a bar to the conviction of the person charged if the court is satisfied that the person charged by his own conduct contributed to that failure."
The noble Lord said: My Lords, in the absence of my noble friend Lord Colville of Culross, I beg leave to move the Amendment which stands in his name. I should like to give his apologies that he had to leave. The purpose of the Amendment is to follow up the point made at an earlier stage of the Bill to enable notice to be given to the defendant, or to what one might call the intending defendant. I think this Amendment makes good sense. As the noble Lord will remember, it arose out of a discussion we had on what should be done in cases of an offence arising out of oral statements. The point was made that the trouble with oral statements—we were then discussing the time limit for prosecution—is that before long nobody remembers the evidence, least of all the supplier, who, perhaps, will be supplying 100 or 200 customers in a day. The customer is the only person who can remember the evidence. It is extremely important that the supplier, the person who is to be the defendant, should be given the earliest possible notice of the intention to prosecute.
My noble friend Lord Colville of Culross drew my attention to something which the noble Lord, Lord Silkin, said earlier this afternoon on the Administration of Justice Bill in connection with the length of time it often takes to get cases on for trial. He said that much of the evidence is oral, and it really does tax the memory of the parties and the witnesses to recall what happened months or years ago. One way of making certain that the defendant will have time to get his case together is to see that he gets his earliest possible notice of the intending prosecution. This Amendment suggests either that notice should be given (and this is really in the case of a private prosecutor) within 28 days of the commission of the offence, which should give enough time for the person bringing the private prosecution to make arrangements to prosecute; or, that within 28 days, a notice of intending proceedings should be sent. The reason for that, of course, is that it would not be possible to serve a
668
summons in that time because the enforcement authorities have to give 28 days' notice to the Board of Trade. I think this covers both the cases that could arise. It seems to me that in the case of an oral misrepresentation some such provision as this would be of great help.
Amendment moved—
Page 10, line 35, at end insert the new subsection.—(Lord Drumalbyn.)
LORD CAWLEY: My Lords, this Amendment shows the serious dilemma that any prosecutor will be in where oral statements are concerned. The law as to passing off (which I mentioned before) is quite clear. If you put in a trap order—that is, if you go round and deliberately ask for something by its trade name in a shop and you are handed something else—you must tell the shopkeeper as soon as possible about the order so that he will have a chance of defending himself. I know of one case about ten years ago which Mr. Justice Harman threw out straight away because the intending plaintiff waited for 28 days, or about a month, before telling the shopkeeper. The judge said that it was unfair to the shopkeeper, because he could not be expected to keep in mind the event on some day a month before; he could not even be expected to identify the assistant who served the intending plaintiff. I think it is possible that 28 days is far too long a time; but I realise also that it is too short a time if it has to be decided whether it really was a trade description or not, because obviously the question of analysing the goods comes in. It illustrates the dilemma in an acute form. I would otherwise support this Amendment.
LORD BROWN: My Lords, we are again in a dilemma as the noble Lord, Lord Cawley, has said. I have given careful consideration to the possibility of providing that a person who is to be charged with an oral offence should receive early warning of the fact. If you think about certain types of transactions you at once are biased towards acceptance of this sort of Amendment; but if you think of other sorts, then you are biased against this Amendment. I will attempt to show that this is so in a few moments. The fundamental difficulty is that the Bill covers such a wide range of offences that may be committed by means of an oral statement, and in many

669
cases the commission of the offence may not be discovered until a considerable time has elapsed. There would certainly be many offences which would not or even could not come to light within the time limit of 28 days proposed in the Amendment. I do not think that the analogy which was drawn in the previous discussion with the Road Traffic Act is at all apposite. There is a crucial difference. I will not follow that line again. Nobody raised it on this occasion.
What I am deeply concerned about is this. One thinks of consumer durables; for example, motor cars. The purchaser is assured by the eager seller that this motor car will certainly, when it is run in, average above 30 miles per gallon in petrol consumption. This is a very important selling point. It may take reasonably a couple of months to run it in. The purchaser then has no redress at all on this. And so it goes for all sorts of consumer durables where one takes time to find out that the machines are not consistent with the oral descriptions given by the seller. I admit the difficulty in which one puts the seller.
LORD DRUMALBYN: My Lords, I think the noble Lord meant that the purchaser had no redress under this Bill. He might have redress under the Misrepresentation Act or in some other way.
LORD BROWN: My Lords, that is true. I was talking about this Bill and the feasibility of the authorities prosecuting under this Bill. I am aware of the other Acts under which a complainant can prosecute. But the noble Lord will agree with me that it is not always an easy matter under those Acts for the person who feels he has been deceived to proceed with his own prosecution in this way. One is faced with these two different types of transaction, in one of which it would be utterly reasonable to restrict the time within which prosecution should be brought; and the other case where it would be utterly unreasonable to restrict the time for it would virtually make these offences outside the law.
On these grounds I ask noble Lords not to accept this Amendment, because I think it would weaken the Bill in dealing with the more serious type of offence which very often is concerned with a much more expensive type of purchase and is, possibly, more open
670
to the sort of deception which the clause will catch than the smaller type of transaction which is often of lesser value and about which these sort of oral mis-descriptions do not quite so often apply.
LORD LEATHERLAND: My Lords, may I ask my noble friend whether this clause refers to oral descriptions or not? The three paragraphs seem to exclude oral descriptions.
LORD BROWN, My Lords, as I understand it, the entire Amendment is concerned with the limitation of the time during which prosecutions can be brought for oral misdescriptions.
LORD DRUMALBYN: My Lords, I am obliged to the noble Lord for the way in which he has dealt with this matter. As he said, it is a difficult question. I think it illustrates how very difficult the administration of the law in regard to oral misdescriptions is going to be. From what he said, it looks as if it is more likely to bite in the cases of oral misdescriptions where the value of the goods is higher and the number of transactions lower than in the other case, and this is probably as it ought to be. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 23 [Defence of mistake, accident, etc.]:
LORD DRUMALBYN: My Lords, Amendment No. 9, in the name of my noble friend Lord Colville of Culross is a paving Amendment for his Amendment No. 10. Here we are dealing the case where the allegation is that the commission of the offence was due to the act or default of another person. Amendment No. 10 goes on to say:
"… the person charged shall not, without leave of the court, be entitled to rely on that defence unless, within a period ending seven clear days before the return day of the summons, or, in Scotland, the date fixed for the diet, he has served on the prosecutor a notice in writing specifying the name and address of that other person or any other information in his possession which might be of material assistance in identifying that other person."
This is my noble friend's second effort on this matter. I do not think I need go into the merits of it, except to point o that the noble Viscount has qualified the

671
position where, unless the name and address was given to the prosecutor where this offence was evoked within seven days before the return of the summons, it would not be possible to rely on the defence. Here my noble friend has introduced, in the first place, the idea of leave of the court, and in the second place he has also introduced the qualification at the end that one reason for not being able to give a name and address is that it is not known. He has introduced the qualification:
"or any other information in his possession which might be of material assistance in identifying that other person."
In other words, as I see it, if someone wanted to make use of the third party defence in this way, he would have to give notice, and would have to give such information as was at his disposal. Previously my noble friend was criticised for not having put in an application clause, so to speak, for Scotland. He has now done it neatly in a few words, so that point is also covered. I hope that at this second attempt the noble Lord, Lord Brown, will feel able to accept the Amendment. I beg to move Amendment No. 9.
Amendment moved—
Page 13, line 2, after ("shall") insert ("subject to subsection (2A) of this section").(Lord Drumalbyn.)
LORD BROWN: My Lords, I am sorry that the noble Viscount, Lord Colville of Culross, is not here to hear my congratulations on the co-operative spirit he has shown in dealing with this difficult problem, and the skill with which he has set out to meet the various criticisms which I made of the Amendment put down to this clause when it was last discussed. I will not weary your Lordships by reciting all the technical difficulties which we saw in the previous Amendment. It is enough to say that, with one exception which I shall mention in a moment, it seems to us that the noble Viscount has met them all. He is quite right to drop the third party procedure, as such. What he would now provide is simply an obligation to give notice to the prosecution of the name and address of the alleged real offender:
"or any other information in his possession which might be of material assistance "
672
to the prosecution in identifying the alleged real offender.
When we discussed this matter on a previous occasion I expressed my fear that this obligation to give notice might operate to the prejudice of an ignorant or careless defendant. The noble Viscount has met this criticism by vesting the final discretion in the court which will thus be able to ensure that no one will be prejudiced through his own ignorance or carelessness. The noble Viscount has, to quote his own words, produced something which is not only right but a real improvement.
I am advised, however, that the time limit proposed in this Amendment, although a vast improvement on the limit proposed in the last Amendment, is still not quite right. I do not wish to sound mealy-mouthed about this, but there are one or two little technical foibles about the drafting of the words
"within a period ending seven clear days before the return day of the summons, or, in Scotland, the day fixed for the diet"
which my advisers think ought to be examined, particularly with the Scottish authorities. I should have liked to accept the Amendment as it stands, but I think that would be a little unwise on this minor point of detail. So if the noble Lord will agree to withdraw the Amendment, I will give an assurance that, subject to adjustments—or, indeed, without adjustments, but subject to examination on detailed points—an Amendment will be put down in another place.
LORD DRUMALBYN: My Lords, I am grateful to the noble Lord, Lord Brown. I should have thought it would be possible for him to accept the Amendment now and make any possible minor adjustments in another place. I hope he will be able to do that.
LORD BROWN: May I rise again, my Lords, to answer that one point? I had hoped to be able to do that myself. I explored this problem with those responsible for the drafting this morning. It was my wish to do that. I am advised that it would be easier from their point of view if I were to accept the principle in this way, which is more customary, rather than to accept an Amendment and the Government later to put down their

673
Amendment to it. To preserve the position, the Government make the Amendment and then put it down as a Government Amendment. I am sorry that I am not sufficiently familiar with the procedure in this House to know whether this is usual or not, but I was advised that it is more often the manner adopted and I acceded to that request. I hope that the noble Lord will accept my explanation.
LORD AIREDALE: My Lords, does it not give the proper credit due to this House as a revising Chamber that Amendments which are inspired and originate in this House should be seen by the great big world outside to be Lords Amendments?
LORD DRUMALBYN: My Lords, I hope that the noble Lord will be able to have the necessary consultation between now and Third Reading, if the Third Reading is on the day we now expect it to be. It does not seem to me that to straighten this out would involve a great deal of consultation or a great deal of difficulty.
LORD BROWN: My Lords, if noble Lords will excuse me rising for a third time—I know that it is quite wrong—I am emotionally with the point made by the noble Lord, Lord Airedale, and by the noble Lard, Lord Drumalbyn. I think that I am going to change my mind and accept the Amendment, and leave it to the Government to move their Amendment at a later stage.
LORD DRUMALBYN: My Lords, I am very grateful to the noble Lord, and I am sure that your Lordships' House is grateful to him.
On Question, Amendment agreed to.
LORD DRUMALBYN: My Lords, I beg to move Amendment No. 10.
Amendment moved.
Page 13, line 10, at end insert—
("(2A) If in any case the defence provided by the last foregoing subsection involves the allegation that the commission of the offence was due to the act or default of another person, the person charged shall not, without leave of the court, be entitled to rely on that defence unless, within a period ending seven clear days before the return day of the summons, or, in Scotland, the day fixed for the diet, he has served on the prosecutor a notice in writing specifying the name and address of that other person or any other
674
information in his possession which might be of material assistance in identifying that other person.")—[Lord Drumalbyn.]
On Question, Amendment agreed to.
Clause 32 [Trade marks containing trade descriptions]:
6.8 p.m.
LORD CAWLEY LORD CAWLEY moved, in paragraph (d), to leave out "or a successor in title of, the proprietor on the day this Act is passed", and to insert:
"the proprietor on the day this Act is passed or a successor in title to a business of that proprietor in which the trade mark was used."
The noble Lord said: My Lords, this is rather an abstruse point. I must apologise to the noble Lord, Lord Brown, for not bringing it up in Committee. Unfortunately, I forgot about it at that time. I am in full accord with the objects of this clause, but I think there are certain words in paragraph (d) which are ambiguous.
Paragraph (d) at present reads:
"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."
I believe that the words "successor in title" are ambiguous. I shall try to illustrate this by saying that if a man owns a departmental store in which there is a cutlery department and he is using, let us say, the word "Everkeen" for his cutlery on the day this Bill becomes law, it might be said that was a false description if in fact his knives did not remain keen indefinitely. Some time after this Bill is passed he sells his whole departmental store, including the trade marks, to a third party. There is no doubt whatever that the third party is the successor in title. But the owner may not sell the whole business. He may sell his cutlery department together with the trade marks. The question then arises whether the purchaser of the cutlery department is protected.
There is a third possibility: that the owner does not sell any of his business and merely sells the registered trade marks apart from the goodwill. Since the Trade Marks Act 1938 it has been possible to sell the trade marks apart from the business. I think that one of the striking examples over recent years was when the liquidator of the business

675
offered for sale the trade marks of Bechstein through the "Personal" column of The Times newspaper. Do we want to find in the "personal" columns an advertisement for trade marks 1, 2, 3, 4, 5, and 6 of "Everkeen", with the remark: "The use of this mark is protected from prosecution under the Consumer Protection Act"? Or do we want this protection to adhere only to somebody who buys the whole of the business of the proprietor at the time the Act becomes law? My Amendment would cover the first two situations—the person who buys the whole business or who buys the cutlery part of the business in which the mark is used. It would not cover people who bought trade marks in gross, because I think it is hardly intended that they should be covered by this exemption. I beg to move.
Amendment moved—
Page 18, line 37, leave out from "as" to the end of line 38 and insert the said new words.—(Lord Cawley.)
LORD BROWN: My Lords, the noble Lord was good enough to give me advance warning of his intention to put down this Amendment and to explain his purpose in doing so. May I say first of all that his Amendment would give Clause 32(d) a meaning different from that which the Government intend it to have. When we speak of "a successor in title" we mean a successor in title to the trade mark, with or without the goodwill or any part of the goodwill of any business. So, if there is any ambiguity in Clause 32(d), we should not wish to resolve it in the way proposed by the noble Lord. I do not think he would mind that. What he is concerned with, as I understood him originally, is to resolve the ambiguity, though since he spoke this afternoon I am not quite so certain that this is all his concern.
Next, I submit that in the context of Clause 32, the words "successor in title of the proprietor" are not ambiguous. The only thing mentioned in Clause 32 as the subject matter of ownership or title is a trade mark. When, therefore, we come to the reference to the words "successor in title" in Clause 32(d), the natural meaning must be "successor in title to the trade mark". Next, I should point out that Clause 32(d) is identical with Section 1(4)(c) of the Merchandise
676
Marks Act 1953 and that that provision has caused no difficulty over the past 14 years.
What is more important, however, is that Clause 32 is intended very largely, though not entirely, to continue the exemption given by the 1953 Act. If we alter the wording of Clause 32(d) we shall run the risk of altering the law, with the result that people who benefited under the 1953 Act will not benefit when the present Bill becomes law. This might produce considerable confusion. I hope that I have said enough to convince the noble Lord that this Amendment is not necessary to clear up ambiguity and that it is not perhaps so favourable as he thinks it is in so far as it changes the intention of the clause.
LORD CAWLEY: My Lords, I am grateful to the noble Lord for what he has said. I was not in the House in 1953 to tamper with that Bill, but I see that if there is a difference in wording between the two it might be thought that the law had been altered. I see that there might be an ambiguity, and I desire to withdraw my Amendment.
Amendment, by leave, withdrawn.
6.15 p.m.
LORD BROWN LORD BROWN moved, after Clause 34, to insert the following new clause:
Market research experiments
".—(1) In this section market research experiment" means any activities conducted for the purpose of ascertaining the opinion of persons (in this section referred to as "participants") of—

(a) any goods; or

(b) anything in or with which the goods are supplied; or

(c) the appearance or any other characteristic of the goods or of any such thing; or

(d) the name or description under which the goods are supplied.

(2) This section applies to any market research experiment with respect to which the following conditions are satisfied, that is to say—

(a) that any participant to whom any goods are supplied in the course of the experiment is informed, at or before the time at which they are supplied to him, that they are supplied for such a purpose as is mentioned in subsection (1) of this section, and

(b) that no consideration in money or money's worth is given by a participant for the goods or any goods supplied to him for comparison.

(3) Neither section 1 nor section 8 of this Act shall apply in relation to goods supplied or offered or offered to be supplied, whether

677
to a participant or any other person, in the course of a market research experiment to which this section applies."
The noble Lord said: My Lords, during the Committee stage the noble Lord, Lord Auckland, referred to the difficulties which this Bill as drafted would create for people engaged in certain forms of market research. My noble friend Lord Winterbottom agreed that there was substance in this criticism and promised that the Government would table an Amendment to provide an exemption for market research activities if this were possible. We think that this Amendment would achieve what is wanted. We have prepared it in the light of full consultation with professional bodies in this field, for whose valuable help we are extremely grateful—though I should add that the actual words used in the Amendment were of course not discussed with those bodies before being placed before your Lordships. From these discussions it became clear that what was needed was an exemption from two clauses of the Bill, Clauses 1 and 8. To deal with Clause 8 first, the sort of case we had in mind was where compliance with the requirements of a marking order would frustrate the effectiveness of a market research experiment. For instance, a test to discover how far people notice differences between two similar products of slightly different composition would be nullified if the testers had to be told what the differences were because a marking order was in force requiring all packets of that class of products to be labelled with a list of their ingredients.
The need for goods to be positively misdescribed for the purposes of these tests is less obvious. But we are assured that there may be occasions when it would be desirable for the products to be presented in a manner which might involve the application of a false trade description. For instance, a manufacturer who wants to assess the effect of a new ingredient in his product may invite volunteers to try out samples of the old and the new formula, both presented under the old label; and the old label may be a false trade description when applied to the new formula.
Once we had identified the clauses of the Bill from which exemption was needed, the chief problem was to define the sort of activity to which the exemp-
678
tion should apply. In particular it was important not to draw up so broad a provision as to create a serious loophole in our provisions relating to false trade descriptions. We think that the two conditions laid down in subsection (2) of this Amendment will effectively limit the proposed exemption to the area which we wish to cover. These conditions are, first, that a person taking part in a market research experiment should know that he is doing so and should not be an unwitting guinea-pig; and secondly, that a participant should not pay for the goods which he is testing. These are common characteristics of all the operations with which we are here concerned. They will ensure that the exemption does not extend to the broader activity of test marketing a new product.
Subsection (1) contains the definition of a market research experiment for the purpose of this exemption. This was not at all easy to draft. I will not weary your Lordships with a lecture on the great variety in the nature and purpose of these experiments—indeed I do not claim to be qualified to do so—but we think that our definition is comprehensive. It would, for instance, cover experiments to test consumer reaction to the product or its packaging or any particular feature of either, including any accompanying words or illustrations. We think that this would be a reasonable and workable provision and I hope that your Lordships will accept it. I beg to move.
Amendment moved—
After Clause 34 insert the said new clause.—(Lord Brown.)
LORD AIREDALE LORD AIREDALE moved, as an Amendment to the Amendment, in subsection (3), line 2, to leave out "whether to a participant or any other person" and insert "to a participant". The noble Lord said: My Lords, I move this Amendment because it seems that there is a mischief which this Bill ought to prevent and which it is not going to prevent without the application of this Amendment to this new clause. I think I can best make myself intelligible by describing the mischief before referring to the clause and the Amendment. This arises from an article in the magazine Which for June, 1964. I am going to invent a fictitious name for a soap, but

679
otherwise I will quote verbatim certain words out of the short article. It says:
"There are three different types of Super White. The standard one most widely available is a soap powder called Super White. Then there is a non-soap synthetic detergent product known as Super White in Barrow-in-Furness and Colchester. The third product, which is a blend of soap and non-soap, is on sale in the Isle of Wight. It comes in the same packs as the standard soap powder and is also called Super White."
The comment made by the writer of the article is:
"It is, of course, a splendid thing that manufacturers should try out new products on a small scale first, but it really does seem naughty for a manufacturer to sell three different products under the same name."
I suspect, having heard what the Minister said just now, that I shall be told that what I have here been describing is something that he describes as the test marketing of a new product which in some way is not covered by his new clause which I seek to amend. But I am bound to say that I do not understand this. It seems to me that if in subsection (3), which I seek to amend, you allow the exemption, so to speak, to apply whether the goods are supplied to the participant or to any other person, in that event a manufacturer, by running a continuous series of what he would call market research experiments, to use the wording of the side note to the new clause, could for ever evade Clause 1 of this Bill, because whenever it was sought to prosecute him, he would say: "I am exempt from this, because I am conducting a market research experiment.
LORD BROWN: My Lords, perhaps the noble Lord will allow me to ask him a question which I think might help. Is he not overlooking subsection (2)(b) in the new clause, where it says that nobody must pay for these goods. If they pay for them they fall outside the ambit of this clause.
LORD AIREDALE: I must think about that, my Lords. But it seemed to me that that did not happen, because although the participant, to use the word of the clause, must not be charged in money or money's worth for the goods—he must be given the goods free—other people will be charged for the goods; and subsection (3) says that Section 1 shall not apply when the goods are supplied "whether to a participant or to any other person". So it seems to me that the people who have
680
to pay for the goods—that is to say, 99·9 per cent. of the population—are going to be the victims of trade misdescriptions which are not going to be caught because of a market research experiment in which very few people are taking part, and so far as I can see, this would be widely used to evade the main provisions of the Bill. I hope I may be wrong. Nevertheless, I beg to move.
Amendment to Amendment moved—
Subsection (3), line 2, leave out ("whether to a participant or any other person") and insert ("to a participant").—(Lord Airedale.)
LORD LEATHERLAND: My Lords, I think this is a sensible Amendment. I suppose the leading case with which this new clause is concerned is that where housewives are invited to examine two yellow packages in the hope of describing which is Stork and which is butter. Quite obviously, if the manufacturer had to put on the labels, "This is Stork", or "This is butter", it would neutralise the whole object of the test that was taking place. So this seems to me to be a sensible Amendment.
However, I am wondering whether perhaps, as drafted, the clause does not go wider than my noble friend intends. I presume that it does not apply to political market research, which seems to me to be a very active industry in these days, practised not only by newspapers and public opinion polls, but by people like Mr. David Frost on the television. It is constantly taking place. It seems to me that under the clause as now drafted political market research experimenters might be caught. Each Party is trying to sell its policy; and so far as my Party is concerned the phraseology of the clause, namely, "the goods", would apply quite strictly to the policy of my own Party. Unless we are to have an assurance that this clause will certainly not apply to what is known as political market research, we shall have all sorts of people in grave danger—leader writers, editors, TV commentators and so on—who will hardly know where to tread. I hope that we may have an assurance that political market research is not a matter envisaged to be covered by this clause.
LORD DRUMALBYN: My Lords, I am not clear about this. I should have thought that if we were to make an

681
amendment to this clause all the words after "goods supplied", namely,
"or offered to be supplied, whether to a participant or any other person"
should be taken out. It seems to me that in this case either you are in a market research experiment or you are not; either you are a participant or you are not. As I see it, the only possible use of the words, "offered to be supplied", is to make you a participant. Goods are offered to you, and if you accept them they are supplied and you become a participant. I cannot see any other point in the words, and I am wondering whether they are really necessary. I am not sure that this is a necessary part of the market experiment. You form your experiment; you get your participants and supply them with the goods without cost, and that is that. I am not sure where the words "offered to be supplied" come in.
LORD BROWN: My Lords, there is a very good reason for drafting this clause in the way that we have drafted it, rather than in the way that the noble Lord, Lord Airedale, proposes. In the course of a market research experiment, as this expression is defined in the clause, it is not only when the goods are handed over to the "participants" whose opinions are sought that they are "supplied". The experiment will often be handled by a market research firm on behalf of a manufacturer. The goods involved may be delivered to the market research firm by the manufacturer who is commissioning the experiment, or they may be made up or packed to a particular specification by some other company specialising in such work, who will deliver them to the market research firm either direct or through the manufacturer who has commissioned the experiment. The goods may thus pass through several hands after they have been made-up in a form which contravenes Clauses 1 or 8 and before they are supplied to the eventual "participants". Every time they thus change hands they will be "supplied" within the meaning of that term in the Bill, and on every such intermediate "supplying" an offence would arise if the noble Lord's Amendment were adopted.
It is, therefore, necessary to exclude from the scope of Clauses 1 and 8
682
every supply of the goods by one person to another in the course of the experiment. This is what the clause would achieve as at present drafted. But if we accepted the noble Lord's Amendment, we should have the anomalous position of some parts of a market research experiment being subject to the Bill and other parts being exempted. I make the point that this clause has been drafted in close collaboration with those interested in market research. I could not argue the cogency of the drafting here and now, but a great deal of thought has gone into it. The answer to the question put by my noble friend Lord Leather-land is that I do not think political policies could possibly be construed as "goods". Therefore, this clause is not an inhibition to political research.
I should like to emphasise to the noble Lord, Lord Airedale, with respect, that the case he has quoted from Which is a case which is not within the ambit of market research as defined in this clause. That was test marketing. A case where goods were being sold for money is clearly excluded from this clause, and the case the noble Lord has quoted has little relevance to the wording of this clause, with great respect, because of the operation of Clause 2(b), which clearly says that the participants must not have paid money and for the goods in the case which the noble Lord quoted they have done so. I hope that the noble Lord will see fit to withdraw his Amendment.
LORD DRUMALBYN: My Lords, before the noble Lord sits down, may I ask one question? He has spoken about an intermediary through whom the goods pass, and this all seems to be part of the market experiment. If they are not participants, what are they?
LORD BROWN: My Lords, I am advised that they may not be construed as participants in the way framed here, and it is necessary to exclude them by other means if we are to avoid getting into trouble with them.
LORD AUCKLAND: My Lords. I am grateful to the noble Lord for having put down this new clause in answer to the matter of market research which I brought up at an earlier stage of the Bill. I am not sufficiently au fait with market

683
research myself to be able to comment on some of the more technical points which have been made, but I certainly think it is not the intention of anybody to promote market research for unreasonably hard selling, and that is obviously what one wants to avoid. What this clause will do is to enable those who are indulging in bona fide market research, with bona fide people, to carry on at a time when marketing new products is essential to the economy of this country. I am certainly very grateful to the noble Lord for having put this clause in, although I am certain that it will need further consideration as to tidying up, possibly, some of the more technical provisions.
LORD AIREDALE: My Lords, I am very much obliged to the Minister for his answer on my Amendment. I will, of course, look at the matter again. I think I have made quite clear what my difficulty is. I appreciate, of course, that the participant who under Clause 2(b) must not have been charged anything for the goods, could not have any complaint. One cannot have any complaint about the quality of goods supplied to one free. But my difficulty is that subsection (3) exempts the provision of Clause 1, not only in the case of goods supplied to the participant, but, as it says, "whether to a participant or any other person". It therefore seems to me that, provided there is a participant somewhere, the manufacturer can supply all these goods and sell them to everybody else who is not a participant, and cannot be prosecuted under Clause 1 for doing so, because he can say, "I am conducting a market research experiment". That is my difficulty, but of course I must look at this matter again and seek to withdraw the Amendment now.
Amendment to Amendment, by leave, withdrawn.
On Question, Amendment agreed to.
Clause 37 [Interpretation]:
6.34 p.m.
LORD BROWN: My Lords, when this Bill was in Committee, the noble Lord, Lord Drumalbyn, put down an Amendment designed to draw a distinction between circulars amounting to an invitation
684
to treat and those which amount to an offer. Under his Amendment, the former would have been included in the term "advertisement" while the latter would not. I felt unable to accept that such a distinction should be drawn. If we had made an order to ensure that people who were being invited to buy a certain class of goods by post should be forewarned of certain details—perhaps as to their size or as to their origin—which would have been evident if they had chosen the goods in a shop, it would be quite unsatisfactory if the order bit on one kind of circular invitation but not on another, merely because one amounted to an offer and the other amounted to an offer to treat. However, one of the noble Lord's reasons for putting down his Amendment was that, in general parlance, the term "advertisement" does not include a circular which amounts to an offer. This Amendment is therefore designed to remove any doubt that anyone may have that the definitions in Clause 37 apply for any purpose other than the interpretation of the expressions concerned where used in this Bill. I beg to move.
Amendment moved—
Page 20, line 5, leave out ("with respect to expressions used in this Act") and insert ("for the interpretation in this Act of expressions used therein").—(Lord Brown.)
LORD DRUMALBYN: My Lords, I am much obliged to the noble Lord for having put down this Amendment. I am still not altogether satisfied that it will not be necessary also to distinguish circulars from certain kinds of letters which go out in the same terms to a great many people—wholesalers' lists and such things. After all, it would be a pity to deny the distributive trades the technological improvements, such as copying and so forth, when an offer is going to be made to many regular customers, merely because of some point which has arisen here. I am not certain how far there is substance in this point, because really it is only a question of whether they should be applying a trade description direct in a letter, or whether, because it is an advertisement, Clause 5 is needed to apply the trade description. I do not know whether there is a great deal in this point, but perhaps the noble Lord will have another look and make sure the position is all right. I am obliged to

685
the noble Lord for having made this improvement.
On Question, Amendment agreed to.
LORD BROWN LORD BROWN moved to add to the clause:
"(2) For the purposes of this Act, a trade description or statement published in any newspaper, book or periodical or in any film or sound or television broadcast shall not be deemed to be a trade description applied or statement made in the course of a trade or business unless it is or forms part of an advertisement."
The noble Lord said: My Lords, when we discussed this clause during the Committee stage I referred to the discussion which we had had on Clause 1 about bona fide editorial matter, and said that, on consideration, I accepted that this Bill was not the right vehicle for encouraging newspapers and journalists to be accurate in their description of goods, however commendable in itself such an objective might be. I therefore said that we would do our best to put forward an Amendment 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. That is what this Amendment would do.
The Amendment provides, first, that the publication of a trade description in any of the named media shall not amount to the application of a trade description in the course of a trade or business, so long as it is not an advertisement or part of one. It also provides that any statement so published shall not be treated as a statement made in the course of a trade or business. The effect of this is that the newspaper or other medium will be excluded from the scope of the offences under Clauses 1 and 13, which are the only clauses under which they might otherwise be vulnerable in respect of the publication of bona fide editorial matter.
Although our earlier discussions of this matter were concerned only with the application of trade descriptions to goods, we have thought it logical to extend the exemption to statements made about services. Bona fide editorial matter often deals with services and accommodation; and although a false statement about the matters specified in Clause 13 is an offence only when there is guilty knowledge or recklessness, we recognise that newspaper articles and the like may occasionally include statements which are
686
made "recklessly", in the sense in which that term is defined in Clause 13(2)(b).
Your Lordships will have noted that the Amendment also extends beyond editorial matter in newspapers and magazines. Having accepted the principle of the exclusion, we could not rationally limit it to comment in those media. We accordingly propose that the exemption should also cover publication in books, films, radio and television, broadcasts, in all of which material description of goods and services is presented from time to time.
This Amendment would not, of course, alter the position of anything published that, openly or covertly, amounted to an advertisement, or formed part of one, and I think we ought to emphasise most strongly in our discussion that this is so. For instance, it would not provide any protection for a manufacturer who takes a whole page of a newspaper to describe his products, or a shopkeeper who distributes material extolling or describing his wares in the form of a magazine, or such-like. I know that some of your Lordships would prefer to have an express definition of the word "advertisement" in the Bill. We have considered this point quite seriously but in our opinion it would not be helpful. Whether a particular publication is or is not an advertisement is a question of fact best determined in the light of the circumstances of each particular case. These circumstances may vary so much that little good, and possibly a great deal of harm, would be done by attempting to eliminate doubt by providing a comprehensive definition of "advertisement". I hope that this Amendment will be acceptable to your Lordships. I beg to move.
Amendment moved—
Page 20, line 10, at end insert the said subsection.—(Lord Brown.)
6.43 p.m.
LORD DRUMALBYNhad given Notice of two Amendments to the Amendment, the first being, after "unless" to insert "(i)". The noble Lord said: I should first like to thank the noble Lord, Lord Brown, for the Amendment he has moved. I think he found in this case that he had all your Lordships who spoke on this matter rather against him on the subject of the freedom of journalists, and the House felt that it would be wrong

687
to put journalists at risk of being prosecuted for applying false trade descriptions in the course of carrying out their normal functions of reporting and commenting. It is exceedingly difficult to draw the line in these matters. I think the noble Lord may now have gone just a little too far in the right direction. It is possible to do this.
The problem is quite simply this. The noble Lord has referred to a manufacturer or distributor who takes a whole page in a newspaper to describe his products; that is to say, who reserves this page for advertising purposes, pays for the advertising and uses that space to extol his products in the form of an article. That is clearly an advertisement and it should be so marked. It is advertising which is paid for. However, if I may say so this is not the problem. The problem is what we might call the news item, the Press release, or anything of that kind which is made available to the Press. They are perfectly free, in their own discretion, to publish it or not. They may publish it in full or they may edit it and publish parts of it, or they may extract parts of it and use those parts to write an article. It may be news or it may be features but it is certainly not advertising: it is not space which is paid for. The information is news which is available to the Press, and this is the problem one has to face, and one wonders how to deal with it.
In my opinion, there is no possibility of expecting the editors of the papers to be responsible for checking all the facts in that kind of article. It would not be possible for them to do so. They judge of the interest of the article to their own readers, and if it is of interest to those readers they publish it; but not otherwise. They cannot possibly be made responsible for the contents of the article. Of course it is not only a question of articles. There are all kinds of announcements—births, deaths, marriages, Stock Exchange prices, forthcoming and past events—which a newspaper is perfectly free to print for nothing if the editor thinks the subject matter has news value, or for which the newspaper may make a charge if it is considered that there is not sufficient news value in it. Therefore, if a person wants the announcement to be
688
published in the paper he must pay for it.
Nobody wants journalists to be at risk in this respect. They must be presumed—and they are—to be exercising their judgment in the interests of their readers, but these articles may contain a false trade description, and the question is what do we do if they contain a false trade description or a misleading statement of some kind. The problem is whether it should be possible for a manufacturer or a distributor to say things in such articles which he would not be allowed to say in advertisements. I am not at all convinced that the right way to deal with this would be a statutory provision, but I felt compelled to put down these Amendments to the Amendment in order to ventilate this particular point. I would much rather see it dealt with by a voluntary code of ethics.
There is the Press Council, of course, but it is not involved here. The Press Council deals with the ethics of the editor, and here it is the ethics of the public relations company or of the manufacturer and distributor, and with the utmost deference I would suggest to the noble Lord that the right course is to consult with the Institute of Public Relations, and no doubt also with the Press Council, to try to ensure that this ethical problem is dealt with: because there is a danger that now we are closing the gaps so far as advertisements are concerned, and making it a criminal offence to make misleading statements or apply false trade descriptions, this kind of activity may be driven in the other direction. Statements may go out in the form of public relations and items will be printed in the editorial columns of newspapers which would be criminal offences if they were printed in advertisements.
I thought it right to ventilate this problem because this is something that is happening. It is not on a very large scale at the moment, but in certain kinds of publications it is happening now. One does not want to see it grow as a result of the indulgence which the noble Lord has shown in this Amendment. I agree entirely that it may be right to have shown indulgence in the full measure; it may be right to go as far as the noble Lord has gone, but if it is right then I think further action on a voluntary scale is required, and that is something he might

689
well investigate. I beg to move the first Amendment to the Amendment.
Amendment to Amendment moved—
Line 5, after ("unless") insert ("(i)").—(Lord Drumalbyn.)
LORD STRABOLGI: My Lords, I raised this matter initially in the Committee, and I am grateful to my noble friend Lord Brown for putting down this Amendment, which I think goes most of the way to meet the point that I raised and to preserve journalistic freedom. If I may say so with respect to the noble Lord, Lord Drumalbyn, I do not think he is quite right in what he said. There are really two aspects of this question: first of all, the case where the Press make a false statement as a result of information they have found for themselves or have been given. As I understood my noble friend, they would be at risk there. But there they have always been at risk and there is nothing new in it. The other point—and the one I had particularly in mind—is the matter of the Government requiring information to be given in advertisements. My Amendment in Committee, which I withdrew because it was defective, was to ensure that the Press were not required to include in their editorial matter the kind of extra information that the Government were requiring the advertisers to put into their advertisements.
LORD DRUMALBYN: My Lords, may I interrupt the noble Lord? That was the point that he raised, but he will perhaps remember that before that, on Whether Clause 1 shall stand part, we had the main debate on whether the Bill should apply in general to journalists or not. That was the main point out of which this Amendment has arisen. I am not certain how the noble Lord's particular point is going to be affected by this Amendment.
LORD STRABOLGI: My Lords, I am grateful to the noble Lord, Lord Drumalbyn, and perhaps my noble friend Lord Brown will reply, I think that the Amendment of my noble friend goes a long way to meet that difficulty. It is very difficult to define an advertisement, but in most cases it is perfectly clear where an advertisement is really a space which is available for sale and which has been bought by an advertiser. An editorial comment or description which
690
has been made as a result of information given in hand-outs, and so on, is not an advertisement in the usual sense of the word. I think this clause is a great improvement and preserves the freedom of the Press.
BARONESS ELLIOT OF HARWOOD: My Lords, I want to say one word, if may. I agree with my noble friend Lord Drumalbyn. I think it is a good idea to have a clause of this kind in the Bill. It goes in the right direction, but I think it goes too far. I think it is possibly to wide in its interpretation, and my noble friend's Amendments which we are now discussing, Nos. 16 and 17, make it clear that there is some limitation. I agree with the noble Lord, Lord Strabolgi, that an advertisement paid for and marked as an advertisement is perfectly simple; it may be right or wrong, but it is paid for and it is an advertisement. I am concerned with the comment and written matter which is not an advertisement but is written in the newspapers about a particular article. That is what is called journalistic freedom. It could be written in such a way as to be not quite accurate, and that, I think, might be very misleading to the purchaser. It might include written material gained, perhaps, from the goods or the firms and put out in the form of an editorial which was not absolutely accurate.
We know that in the case of advertising a certain amount of what is technically called "puffery" is allowed, and that is understood. But where the division comes between what is accurate and what is exaggeration amounting to misrepresentation is, of course, a difficult line to draw. I wonder whether, if the journalist is gaining direct benefit from the supplier of the goods about which he is writing, what he writes should not be regarded as advertising for the purposes of the Bill. I do not know whether that kind of description would be covered by Lord Brown's Amendment or Lord Drumalbyn's. If we do not have any limitation I think it might well be that the Amendment the noble Lord, Lord Brown, has put forward would merely encourage advertisers to use pseudo-editorial writing as a medium for unjustified claims, and this they could do with impunity if it was allowed as editorial comment and not included as advertising. I wonder whether the criterion

691
should not be whether or not the publication itself or the journalist gains a direct benefit from what he has written.
I realise it is very difficult to draw the line, but if we allow editorial comment, or news paragraphs, or the sort of daily diaries that appear in many of the newspapers, to be excluded from liability for any false misrepresentation, then we are leaving very wide-open possibilities to people writing things which might mislead the public. I hope that if the Amendment my noble friend Lord Drumalbyn has moved is not the right one the Government will look at this matter and see whether or not some limitation should not be included in their Amendment. While I support the Amendment that the noble Lord, Lord Brown, has put down, I think it goes a little too far.
LORD CAWLEY: My Lords, I support the noble Baroness and my noble friend Lord Drumalbyn. I think I can illustrate it by the fact that I had in front of me recently a newsletter issued by a well-known engineering firm, in which they described a new machine, to which they gave a trade mark. There is no question of false trade description in this case. They sent it to 14 different engineering newspapers. Each newspaper produced a précis of this newsletter, mentioning the trade mark and saying at the bottom "Obtainable from X & Co." They were placed on pages with a whole series of these things down the columns, all results of newsletters or copy sent to the magazines. It was quite obvious that these were advertisements, and I think that those who submit these things to newspapers ought to be responsible for the contents, not the editors.
LORD LEATHERLAND: My Lords, as one who until he retired a few years ago spent over 40 years in and around Fleet Street, I want to utter a word of thanks to the noble Lords, Lord Strabolgi and Lord Drumalbyn, for the efforts they made in the earlier stages of this Bill to secure what I think is a fair measure of freedom for working journalists. I am delighted my noble friend on the Front Bench has decided to put forward this Amendment. The noble Baroness, Lady Elliot of Harwood,
692
said there might be an inclination on the part of some manufacturers and merchants to use editorial comment in order to put over something which was really a disguised advertisement. If there is one particular sentence in the bible of the ordinary newspaper office, it is that you must not allow an advertising "puff" to masquerade under the guise of a news item, and anybody who allows that to be done finds himself carpeted very quickly.
Reference has been made to the distribution of hand-outs to reporters. I will not say that reporters do not welcome hand-outs; they are sometimes of some use in giving them the background to a story. But a reporter who turns in to his news editor a story which virtually rewrites a hand-out would quite quickly find himself in severe trouble. Reporters have a conscientious objection to handouts. What is more, they are usually fairly intelligent people, fairly quick-witted people, let me say, and it is rather difficult for any so-called advertiser to pull the wool over their eyes. You have only to look at the number of reviews of new cars that appear in the newspapers, where the motoring correspondents of newspapers are invited to test new cars which manufacturers are putting on the market, to see that some of the criticisms are quite candid and fearless, and do not hesitate to draw attention to what the correspondents feel are defects in particular cars. They will criticise a car because it swerves too much round corners, because its braking system is not adequate, and on points of that kind.
On the whole, I think that reporters are intelligent people. Certainly, they are most observant people and, on the whole (although I had to check their expenses for twenty or thirty years) they are honest people. But accidents can sometimes happen. It might be that in the haste of the moment, or under the strain of covering two or three stories at the same time, a reporter will lift from a hand-out a passage which is demonstrably false. Should that happen, I think that the responsibility for the intention to deceive is really upon the manufacturer, and not on the reporter. I have listened to the arguments in favour of the suggested Amendment by the noble Lord, Lord Drumalbyn. We are here carefully balancing two evils. In fairness,

693
I think that the Government has come down on the right side with its own Amendment.
One difficulty that might arise under the Amendment of the noble Lord opposite is that he mentions a person having an interest in promoting the sale of goods. Let us assume that one of these motor correspondents—I mention motoring correspondents only because they are the kind of people we can visualise—had £100 worth of shares in British Motor Holdings. Let us assume that he was asked to test a new car from British Motor Holdings. He exposes himself as having had an interest in promoting the sale of goods, as the noble Lord's Amendment says, and he would find himself in a weak position.
I think you have to accept that if a reporter takes to his news editor a story on what is virtually a handout from a manufacturer, the news editor says to him "I do not want a handout; I want what you have seen." As I say, on balance I would come down in favour of the Government's Amendment. I thank the noble Lord, Lord Brown, most sincerely for all the trouble he has gone to in this matter.
7.5 p.m.
LORD BROWN: My Lords, I think we have been a little apolitical about this matter, because I now find myself in the extraordinary situation of having argued in one direction against noble Lords in the past, and now they being in my role and I being to some extent in their role. But I have been converted by the earlier argument, and, I now stick to my new face and suggest that really we do not want to begin "nibbling" at journalists. It is quite true that if we have some "phoney" journalists around we shall not catch them under this Bill. But I think I can reassure—
LORD DRUMALBYN: My Lords, perhaps I may interrupt the noble Lord to say that I hope he is not implying that my argument was intended to be "nibbling" at journalists at all. It certainly was not.
LORD BROWN: My Lords, the noble Lord is quite right. I was tending to speak rather loosely. I am addressing my remarks perhaps to the noble Baroness, Lady Elliot of Harwood. I
694
am not quite sure whether she raised the point, but certainly in the course of this debate there has been discussion about the fact that with the new clause as it stands journalists will get too free a rein. In point of fact, I think we have to go the whole way on this and leave it to other constraints to protect us from the depredations of dishonest journalists.
I want to leave that issue. The noble Lord, Lord Drumalbyn, raised a different point altogether. He raised the issue of Press releases, hand-outs to the Press, and so on, which are in fact advertisements which get into the Press, sometimes in the guise of editorial matter. I think I can reassure the noble Lord on this. One or two noble Lords have already begun to make the argument which I have to make on this matter. The untruthful hand-out to a newspaper will not escape the consequences and, because of this, I am assured that this Amendment is unnecessary. If the contents of a hand-out were such that their publication in the newspaper gave rise to an offence by reason of this Amendment, then the person who issued the hand-out to the newspapers would have committed a separate offence by the act of issuing it. By issuing it he has applied a false trade description. This would be so irrespective of whether or not the hand-out was subsequently published in the newspaper. It follows automatically from the existing provisions of the first few clauses of the Bill, whether we insert this new clause in the form I have proposed or with the noble Lord's Amendment, or even if we leave the new clause out altogether. It is an offence to issue Press releases or handouts or "phoney" editorial matter to an editor if it contains a false trade description. I hope that the main point of the debate arising on these Amendments is satisfied with that explanation.
The other point, regarding the freedom which the new clause gives to journalists, I admit is not satisfied. As I say, we shall have to trust to other constraints, if there are indeed dishonest journalists about. I have noted the remarks of my noble friend Lord Leatherland on this subject. I do not know too much about the Press. I admit to being a little suspicious at times. But I am reassured a little by his remarks on the subject, and I also join with him in pointing to the principal difficulties in interpreting in the courts the

695
Amendment of the noble Lord, Lord Drumalbyn. In view of those comments, I hope that the noble Lord will see fit to withdraw his Amendment to my Amendment.
LORD DRUMALBYN: My Lords, I am most grateful to the noble Lord, and to other noble Lords who have spoken in this little debate within a debate. I must say that I had not taken or spotted the point referred to by the noble Lord, Lord Leatherland, that the reporter may be caught by this because he had some shares. In any case, the noble Lord, Lord Brown, has satisfied us that my Amendment is not really necessary, and that what I wanted to achieve is accomplished anyhow by the Bill. Therefore, I have no hesitation in asking leave to withdraw the Amendment.
Amendment to the Amendment, by leave, withdrawn.
On Question, Amendment agreed to.