CONSUMER PROTECTION BILL [H.L.]

HL Deb 29 January 1968 vol 288 cc639-96

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.

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 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 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.

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, 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 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 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 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 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- 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 DRUMALBYN

moved, 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, 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.

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 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 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 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 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—

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

or 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 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 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 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 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, 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 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 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.

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, 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 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—

1. (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
2. (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. (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 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 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 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 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 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 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 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 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 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 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 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—

1. (a) any goods; or
2. (b) anything in or with which the goods are supplied; or
3. (c) the appearance or any other characteristic of the goods or of any such thing; or
4. (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—

1. (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
2. (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 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- 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 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 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 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 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 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 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 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 the noble Lord for having made this improvement.

On Question, Amendment agreed to.

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 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 DRUMALBYN

had 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 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 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 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 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 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, 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, 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 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 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.