COMMONS AMENDMENTS (Hansard, 23 May 1968)

LORD WINTER BOTTOM
My Lords, this Amendment elaborates the general rule laid down in paragraph (a) of subsection (3) for the interpretation of indications of the price at which goods have previously been offered. Its chief purpose is to deal with ambigious indications, so that shoppers will be able to know whether any price reduction claimed represents a reduction on the seller's own previous price and is, therefore, one that may be trusted because it is subject to the provisions of subsection (1). The House will recall that when it was earlier discussing this clause my noble friend Lord Brown mentioned the desirability of finding some better means of ensuring that the public would know which kinds of price-claim could be trusted and which must be viewed with caution. The Amendment will help to ensure that.
Ambiguity arises when a claim that prices have been reduced is framed in such a way that it is not clear whether the reduced price is being compared with the price at which the seller has previously offered the goods or with a price which has been or is being charged for such goods by someone else. Either meaning is possible, and one is not more likely than the other. In these circumstances the shopper is encouraged to think that the reduction may well be a genuine one in the sense that the seller has cut his own price, but he cannot be sure that the reference is not to some other—and quite possibly meaningless—comparison. Moreover, if such ambiguity were permitted, it would be impossible to bring a successful prosecution against a dishonest supplier who had in fact 861 previously sold the goods at a lower price than the one with which he was now comparing, because he could always say that the price in question was the other person's, not his own—and we have unfortunately not been able to bring false comparisons with other people's prices within the scope of this clause.
Sub-paragraph (i) of the Amendment would prevent these ambiguous claims by ensuring that if an indication is given of the previous price of any goods it shall be treated as an indication of the seller's own previous price unless he makes it absolutely clear that it is not. He will not be allowed to say or imply that it may be his own former price or that it may be something else. Sub-paragraph (ii) of the Amendment restates the original provision of subsection (3)(a), with one modification. It provides that an indication of the previous price of any goods shall be treated, unless the contrary is expressed, as an indication that they were offered at that price within the preceding six months for a continuous period of not less than twenty-eight days instead of, as originally, for a substantial period. The reason for the change is to avoid possible uncertainties about what period is or is not substantial and to enable traders and enforcing authorities to know precisely for how long goods must have been offered at the previous price before a reduction can be claimed, and for how long thereafter it is allowable to continue to make the claim. I beg to move that this House doth agree with the Commons in the said Amendment.

LORD HAWKE
My Lords, this Amendment, which has been made to what I shall always regard as a remarkably silly clause, will create further anomalies. By including a period of 28 days it will preclude the retailer who has managed to get a line of particular goods, sold them at a certain price and sold them out quickly—perhaps in five days—from buying another line and being able to say that these are at a shilling less than he had sold them last week, because he had not sold the others for 28 days, not having had them in stock for 28 days. I will not go over the arguments against the clause in general. It is what I describe 862 as a "spoilsport clause". It will spoil any form of sales as normally undertaken, and I suspect it is intended to affect the competition among the High Street grocers, whereas the people who will really suffer are the departmental stores.

§ LORD DONALDSON OF KINGSBRIDGE
My Lords, this Amendment seems to me to be a strengthening of a weak clause. I do not want to seem ungrateful by niggling at this clause. Those of your Lordships who have worked so hard to get this Bill through in its improved form will know how much my predecessor at the Consumer Council, the noble Baroness, Lady Elliot of Harwood, has done, and it would be ungrateful if we did not express our pleasure that the Government have got this Bill into its present form. But though we welcome it without reservation, we have on Clause 11(4) one or two points which uncharitable people might think of as reservations. It seems to us to leave open to traders a number of simple variants which could have been covered and which have not been so covered, such as, for example, "The West End price is 25s, and ours is 19s. 11d.", or "The price elsewhere is 25s, and our price is 19s. 11d.". That kind of thing, if false, ought to be caught by the Bill, but as we see the position it is not. Having said that, I must say that we support the Amendment as it strengthens the clause, but in our opinion it does not go as far as it could have gone.

§ BARONESS BURTON OF COVENTRY
My Lords, with regard to Amendment No. 4, which I gather we are discussing —and I must apologise to your Lordships for having come in so late—may say that I find the whole clause unsatisfactory. The Ministers have repeated this statement through this House and through debates elsewhere. I feel that they are allowing the Bill to go forward with a clause about double pricing which every dishonest retailer and every dishonest manufacturer will be able to sidestep. I believe—and I say this very strongly to my noble friend on the Front Bench—that however small this minority may be, I believe that the clause as it stands at present is an invitation to fraud, and I am wondering whether the Board of Trade, or the Minister who presumably will reply on behalf of the Board of 863 Trade, realise the tremendous temptation that is being provided by them to evade this clause.
I wonder whether my noble friends' advisers would not agree that the simple use of the word "elsewhere" would solve the problem for those wishing to defraud. Would I not be correct in saying that all that such retailers will have to do will be to say, "Our price 29s. 11d., elsewhere 39s. 11d."? In such a case I believe that I am correct in assuming that this dishonesty would have complete protection under Clause 11(3)(a)(i). If so—and I am sure the Minister will give me an answer when he comes to reply—this is not a very satisfactory state of affairs, and I am wondering whether the Government really wish to open the door to such fraudulent practices. I hone that my noble friend will give me an answer to that.
While we are on phrases like this, I wonder what the Minister feels about the term "list price". Obviously this can apply equally to the manufacturer's price or the retailer's price. It seems to me, and I shall be glad if I am told I am incorrect, that this could well be another means of defence. I am wondering whether I am right in assuming that the expression "list price", as well as two others that we have discussed a good deal in this Bill—that is "worth" and "value"—are not affected by Clause 11 and these Amendments we are discussing. If I am right in this—I hope I am not—I am wondering what the Board of Trade intends to do about such expressions. If they are not caught by Clause 11 and these Amendments we are discussing at the moment. I am sure my noble friend will know they could be defined and regulated by definition orders under Clause 7, by marking orders under Clause 8 or by information orders under Clause 9. I hope that my noble friend will be able to give me an answer to this.
I do not know whether I might ask for guidance on this point. Our Rules of Order are very lax; people are kind, and I apologise for being late. I will ask my noble friend on the Front Bench whether we are discussing Amendments Nos. 4 and 5 or only No. 4?

§ LORD WINTERBOTTOM
No. 4.

§ BARONESS BURTON OF COVENTRY
I thank my noble friend.

§ LORD DRUMALBYN
My Lords, I should like to thank the noble Lord for having introduced this Amendment. I must say that I do not altogether share the fears of my noble friend Lord Hawke on this subject. It seems to me that the purpose of the clause has now been made fairly clear; that is, unless the contrary is stated any comparison between prices is to be taken as a comparison with a price at which the same seller had been previously selling. And, what is more, again unless there is a contrary indication—you may have any kind of indication you like—that is a price at which he has been selling for a continuous period of 28 days. My own view is that this is about as satisfactory as one could get that provision in this sphere. We shall have to see how it works out.
With regard to what the noble Lord, Lord Donaldson, said, I think it is fairly obvious that if the Board of Trade had been able to discover a formula for dealing with false comparative prices we should have had it before us now. I suppose we are to some extent ourselves to blame for not being able to suggest a formula to the Board of Trade on this matter. But there is, of course, a difference in character between the price at which the same person sold previously and the price at which other people are selling elsewhere, in that at that point in time the shoppers can go round the corner and see the prices elsewhere and they can check for themselves. Of the two evils, quite plainly the Government have dealt with the more serious one, and I hope the House would support them.