§ 3.49 p.m.
§ BARONESS ELLIOT OF HARWOOD
My Lords, I beg to move that the Bill be now read a second time. This is a Private Member's Bill which has been through another place. It first saw the light in another place in the last Parliament. It was introduced under the Title of the Inertia Selling Bill, but that rather unattractive, though descriptive, Title was changed when the Bill was again introduced in this Parliament in 1970 by the honourable Member for Beckenham, Mr. Philip Goodhart, and the Title to-day is "Unsolicited Goods and Services Bill".
The Bill deals with two problems. The first is that most tiresome custom of sending to people goods which they have not 1459 ordered, in the hope that they will buy them and of course pay for them—in fact, the sending of unsolicited goods. If the recipient does not want the goods, he can return them. But that involves expense and trouble; therefore often he does not return them. Then bills are sent in to him, first in ordinary terms and later on with threats of legal proceedings, court actions and all the rest of the disagreeable things which can happen to people and which of course much alarm the ordinary man and woman and cause them quite unnecessary anxiety. Under Clause I of the Bill, if the goods are unsolicited the recipient can send notice to the sender that he neither wants nor will pay for the goods. If the sender does not collect them within 30 days, the goods become the property of the recipient free, gratis and for nothing.
How widespread this tiresome habit of sending unsolicited goods is can be gathered from the fact that all the main consumer protection associations—the Consumers' Association, the Consumer Council, the Advertising Standards Authority, the National Chamber of Trade, the County Councils Association and the Confederation of British Industry, as well as all political Parties in Parliament—have condemned the practice. Eighteen months ago the Consumers' Association reported that 150 members had received goods unordered. When I was Chairman of the Consumer Council I was often asked about letters and communications offering goods on very favourable terms, which were a nuisance and in no case asked for by the public. Although in the past—and I stress the words "in the past"—some mail order firms have been guilty of using these selling methods, it has now been stopped by the Association of Mail Order Publishers who have condemned the practice of inertia selling. That has been a welcome gesture on their part. We shall hear more about it, I hope, from the noble Baroness, Lady Burton of Coventry, when she comes to address your Lordships.
So Clause I of the Bill puts the whole matter in a nutshell. To recapitulate: if the recipient does not want the goods, all he has to do is to write to the sender saving that they are unsolicited, and require the sender to take them away. If the sender does not do so within 30 days of the sending of that letter, the goods 1460 then become the property of the recipient. The clause also deals with the position of the recipient who does nothing. In that case the goods become his property if they have not been collected within six months of the date on which he receives them. Clause 2 deals with demands and threats by the sender on the recipient asking for payment. Under this clause it will be an offence to put the recipients name on a defaulters' list for not paying for unsolicited goods, as well as for threatening to do so. The penalty in the Bill is not imprisonment, but a fine of up to £400.
It is accepted that the overwhelming majority of mail order firms condemn this business of unsolicited selling. They provide a service which the public enjoy and use frequently. We have no desire to interfere with this. There is, of course, the problem of the hoax order, a problem which has existed for a long time, but it is in the hands of the mail order firms to be vigilant to stop this practice, and I am sure that that is what they desire to do.
The second important matter with which the Bill deals is the bogus directory entry. There is a practice of sending to people notices inviting them to insert their name in a bogus business directory. This is quite a major racket, and Clause 3 of the Bill deals with it. The Advertising Standards Association reckon that possibly £500,000 a year is taken from business firms by the bogus directory people: the Incorporated Society of Advertisers puts the figure at about £1,500,000. What happens is that a letter is sent by one of the companies to a business, with a proof note of a directory entry—I have one here in my hand. The recipient company is asked to check the entry and return it. Some time after this has been done the business receives a demand for six or eight guineas for the entry, possibly with an offer of discount for prompt payment, the bogus directory people hoping thereby to get the money by return.
The names of several firms were mentioned in another place by the honourable Member for Beckenham, and your Lordships can read them in column 1649 of the House of Commons Hansard of December 4, 1970. Suffice it to say that in these bogus directory entries some 100,000 to 200,000 clients are involved.
1461 Men are employed full time and offices are established—all this to mislead the public. Seventy-two firms listed in the Incorporated Society of British Advertisers Vigilant Survey produced absolutely nothing. These bogus directory companies try to extort money for publications which do not exist. Some firms have titles which are meant to give the impression that they have something to do with the Post Office "Yellow Pages" book, and some names sound very realistic, but in fact none of them has any reality. This racket must be stopped, and it can all be stopped by Clause 3 of this Bill. Clause 3 sets out clearly the information which must be given by the directory-producing firm before any payment is claimed. If the information is not given, a substantial fine of up to £400 is payable; and if the information given is false, then fraud will have been committed and the company can be sued.
I now come to Clause 4. This clause was inserted into the Bill on the Report stage in another place. It is not easy to interpret the clause in the context of this Bill. I may say that the Bill is not about pornography or any subject which could be included in that category, but there is no doubt that many Members of Parliament and others have suffered much offence by receiving unsolicited pornographic literature. Members of the public have been offended by such advertising material and have written to their Members of Parliament, and no doubt to some of your Lordships, about this disagreeable and offensive practice. Although acknowledging that this matter is really outside the subject matter of the Bill, the Members in another place voted to include Clause 4 in the Bill. In so far as the advertisement of sexual books is done for profit, this method of unsolicited circulation of reading material in this form could be stopped under this Bill, and clearly the Members in another place, by their vote, wanted it stopped.
But in order that genuine publications on sex should be available, for instance, to people seeking information from marriage guidance councils or, in another field altogether, to farmers, in regard to such things as artificial insemination, I shall move an Amendment in Committee 1462 which will limit any prosecutions under this clause to those which have been approved by the Director of Public Prosecutions. That, I think, should effectively prevent any frivolous prosecutions, while the Bill will deter those who are seeking to exploit indecent literature for their own profit. Clause 5 refers to offences under the Bill committed by a corporation. It lays the blame for such action on the director, manager, secretary or any other person acting for the corporation, and holds them liable for any offence under the Bill. Clause 6 deals with interpretation and is a simple clause.
I ask with confidence for your Lordships' support of this Bill. It fills a gap in our legislation which has for too long been open to abuse. Many Members in another place, or their constituents, have had disagreeable and annoying experiences in being sent totally unsolicited goods, and have incurred trouble in being rid of such goods. It has happened not only to Members of Parliament but to many hundreds of thousands of members of the public. All Parties in the other House supported the Bill, and to-day I confidently ask for the support of your Lordships on all sides of the House for its Second Reading. I beg to move, that this Bill be read a second time.
§ Moved, That the Bill be now read 2a.— (Baroness Elliot of Harwood.)
§ 4.1 p.m.
§ BARONESS PHILLIPS
My Lords, I should like to thank the noble Baroness, Lady Elliot of Harwood, who has taken on the responsibility of piloting the Bill through this House, for explaining it so clearly. As she will recall, the noble Lord, Lord Donaldson of Kingsbridge, was about to introduce a similar Bill under the original title to which she has referred, before June, 1970. Therefore we can certainly take it that the Bill has all-Party support. As the noble Baroness has pointed out, this was certainly so in the other place. We are all the recipients of curious items of correspondence. I constantly receive invitations to buy valuable antiques, or to purchase jewellery. It is always pointed out that I am a person of discernment (and presumably of cash) on the assumption, I think, that those who occupy a place in your Lordships' House must, of necessity, be wealthy. We are also inundated with invitations to hear the case of certain 1463 countries who want to put their particular point of view. To those people who employ public relations firms for this purpose I must say that I consign such invitations at once to the wastepaper basket; so they may as well save the postage which they are paying at this time.
We are also invited to obtain a prize; we are told that we have been selected to have a prize. Again, being the kind of person who was told many years ago that the only things I may get in life I should have to work for, I do not bother to follow this up, either. But there is little doubt that we get one type of unsolicited goods, and I am sorry to say that this comes from charities. I refer to Christmas cards. They are usually painted by somebody and often there is a harrowing story attached to them. I do not support these particular people. I am hoping that this message may get through to these individuals, although it may not be particularly relevant to the Bill.
When we come to unsolicited goods within the definition of the Act which are sent without request having been made by the recipient, or on his or her behalf, then the noble Baroness is referring to cases which were submitted in some number, as she said, to the Consumer Council. This I recall from my own organisation. I am glad that she made the point that the numbers have decreased since the Mail Order Publishing Association took the matter in their own hands and prepared a code of practice. I am happy to commend them on this sensible action. I sought the help and advice of my friends in the Citizens Advice Bureaux, who told me that there was still a trickle of cases of unsolicited goods and there was, with the usual computer-style business that we have now, the procession of demands for payment. Those of your Lordships who have received this type of matter know exactly how to deal with it. But there are elderly people who are concerned and bothered about this problem, and do not know quite how to deal with it. These are probably the people that we have in mind when thinking of legislation of this kind.
In relation to Clause 4 I know of some of the members of my own organisation who have been concerned about these books, called sex instruction books, not 1464 only because they have been sent to their household (and it is a little difficult to explain to your husband that you have not sought to have these books sent!) but because when they are sent to your teenage children the situation becomes even more complicated. If there is a way of dealing with this problem I hope we can include it in the Bill. As I see it, the recipients of unsolicited goods are already in a very sound position in civil law. I hope that I have not given incorrect instructions to some of my members when I have told them that they do not need to do anything about the goods. So I have some reservations about the period of time referred to in Clause 2(2)(a). I have no doubt that during the passage of the Bill we shall be debating this question more fully. I am preserving an open mind on it until I have heard from those of your Lordships who have been more actively concerned with the other side of the issuing of mail order goods.
The other point I am a little confused about (perhaps the noble Baroness can explain it to me) is that there does not appear to be a duty of enforcement imposed upon anybody. In a Bill of this kind perhaps this is not considered absolutely essential. It may be well said that the cases which gave rise to this legislation are now disappearing. But I do not think that we test the quality of legislation on the number of cases that are brought to court. Surely we test the validity of our legislation on the number of crimes that are not committed. Although we are happy to see the tailing off of this kind of situation, this small Bill will be the means of preventing some other fears being imposed upon those people who are not easily able to deal with the matter. My Lords, I wish this Bill a speedy passage through your Lordships' House.
§ 4.7 p.m.
THE LORD BISHOP OF ROCHESTER
My Lords, I should like briefly to support and give a general welcome to this Bill. I do so with even more trepidation than usual, for who am I to interrupt so formidable and distinguished a trio of noble Baronesses? I believe that the Bill will go a long way towards reducing, or possibly removing, the undoubted sense of grievance felt by many ordinary people at this growing 1465 practice of sending things which people have not asked for, and which they do not wish to retain. I welcome the Bill because I believe that such practices are an invasion of the privacy of the ordinary citizen and, where they involve children and young people, often subject those who are immature to temptations and influences that can also be sometimes disruptive of a healthy family life.
I should like to support the noble Baroness, Lady Phillips, in her important (even if irrelevant) remarks about the well-intentioned but over-zealous promoters of charitable bodies who send not only their well-wishers but also others, unsolicited Christmas greetings cards and Christmas stamps. Some of your Lordships may regard this as a fairly harmless form of blackmail. This it may be for those who have no hesitation in putting such packages straight into their wastepaper-basket. But as the noble Baroness, Lady Phillips, has suggested already, there are some conscientious people, and many of them not very well off, who are embarrassed by such treatment and ought not to be subjected to it. I hope that the Bill will remove this aggravation.
The noble Baroness who introduced the Bill referred to Clause 4, which was added in another place, which undoubtedly deals with a matter that has recently caused grave offence to a number of people, including parents and teachers. Those of us who sit on these Benches are among those who have received protests about this matter. It is of interest that all the speakers in another place were clearly of the view that the precise wording of this clause as we have received it in this House could be improved upon. I therefore welcome the assurance we have been given that an Amendment will be moved at the Committee stage in your Lordships' House. Mr. Goodhart, the Member of Parliament for Beckenham, in my diocese, made what I thought were cogent criticisms of this present wording of a clause that was in fact passed by 39 votes to 7 shortly after midnight. My Lords, I am sure that if we can improve the wording of Clause 4, we shall make a good and useful Bill even better.
§ 4.11 p.m.
§ BARONESS BURTON OF COVENTRY
My Lords, I am grateful to the noble 1466 Baroness, Lady Elliot of Harwood, as I am sure we all are, for bringing this Bill before us to-day. Before I proceed with my remarks on the Bill I want to take her to task for something, because I think the noble Baroness is fair. There is great danger, if I may say this to the House—and I hope to prove it later (I do not know how wise it is to make a statement and then seek to prove it, but she startled me into these remarks and the other two speakers have added to my being startled)—because people can get ideas into their heads, and these are constantly built on and enlarged when the whole basis from which they started is incorrect. This is what I am venturing to submit is happening in this particular case.
The noble Baroness, referring to the sending of unsolicited goods and the demanding of payment for them, said—and I took down her words—that this was a most tiresome habit. My Lords, it is not a most tiresome habit; it does not occur. And before your Lordships seek to shout me down (if noble Lords ever do shout down in your Lordships' House), may I say that I will prove it later? But I am stating it now because, the noble Baroness went on to say—and again I took this down—that many, many hundreds, and indeed thousands, of people have had this experience. My Lords, they have not. I am sorry to differ from her, but they just have not had the experience of unsolicited goods being sent and payment demanded; and I will prove this later.
We then moved on to my noble friend Lady Phillips—and I am afraid they are all to blame for this outburst now, before I get down to my considered remarks. Lady Phillips spoke about invitations, correspondence, "you have gained a prize", et cetera, and I know she would agree with me that these may or may not be tiresome. These are correspondence; they are not unsolicited goods: and we are discussing unsolicited goods. She referred, I think, to the Citizens' Advice Bureaux with a trickle of goods. Well, it must be a trickle because I have had a lot of consultations with the Citizens' Advice Bureaux and I have asked them to let me know of any cases they have, and they have not done so. And, with temerity, I must refer to the right reverend Prelate the Bishop, because the 1467 Bishop also spoke about "this growing practice"; and I hope that when I sit clown they will all think they were wrong.
With regard to Clause 4, the noble Baroness and I agreed before this debate that we were not well up on pornography. I know nothing about it, and presumably your Lordships do not, either. But what I thought was extraordinary in the Commons' debate was that everybody who spoke about this clause praised the good intentions behind it; said how nice it would be if they could devise a clause to enshrine it in a Bill. But they thought how difficult it would be; and anyway, if they could, it would be quite wrong to put it in this Bill. They then put it in by 39 votes to 7. So whatever the noble Baroness proposes to do on that clause will have my strong support. I thank your Lordships for putting up with me on all this, but I really was startled into it.
This Bill, as we know, is:to make provision for the greater protection of persons receiving unsolicited goods, and to amend the law with respect to charges for entries in directories.To-day I hope to devote most of my remarks to the area of unsolicited goods, and so perhaps I may say straight away that I welcome any amendment of the law which will deal with the abuse in respect to charges for entries in bogus trade directories. Indeed, as I told the noble Baroness the other day prior to this debate, I support this Bill, but I still hope that it will be possible to make some changes in Committee, while appreciating her great anxiety that the Bill shall become law this Session—I quite understand that.
Before dealing with the area of unsolicited goods, I have a personal interest to declare. In October last the Association of Mail Order Publishers set up the Mail Order Publishers' Authority, of which I am Chairman. The Association comprises the leading firms in the field of selling books and gramophone records by post. The duty of the Authority is to enforce a code of practice which has been agreed by members of the Association. Difficult and tiresome though I may be at times, or perhaps because of it, I feel that perhaps it is not necessary for me to present my consumer credentials to this House. I hope, though 1468 tiresome, that these would be admitted. I say that because if I had not been convinced that the code of practice was both equitable and capable of enforcement, I should not have accepted the position of Chairman of the Authority.
The Inertia Selling Bill which lapsed because of the General Election, and which therefore did not reach your Lordships' House, produced the following comment in Which? in July, 1970:The Inertia Selling Bill aimed at providing that anyone who gets unsolicited goods should be able to dispose of them in any way he wants to, provided he gives reasonable notice. We were delighted.I subscribe to that statement; so does the Authority on behalf of the Association of Mail Order Publishers. So, I am sure, does the noble Baroness, Lady Elliot, herself, who is an Honorary Vice President of the Consumers' Association. I would ask her to note in particular the words:provided he gives reasonable notice"—which is, of course, Clause 1(2)(b) of this present Bill.
My Lords, this House is a reasonable House and a fair one. The noble Baroness would never support a proposition which she believed to be unfair; and I hope the same applies to me. This Bill deals with unsolicited goods and services, and the code of practice to which I have referred specifically states:Suppliers shall under no circumstances send merchandise to any addressee without first having received a request for the supply of such merchandise.My job is to see that this code is adhered to, and I intend to do so. But, in view of that remark, I think it is only fair to my members to say that it is being adhered to without any efforts on my part. In view of what the three previous speakers have said, I do not know if the House is aware that our experience in the Authority is that the sending of unsolicited goods is virtually unknown in the mail order world. It is certainly not carried on by those firms subscribing to this code.
In June, 1969 Which? published a survey on unsolicited goods which had been conducted by some members of the Consumers' Association. At the time I gave considerable attention to this, obviously, as being a consumer problem in which I 1469 was interested, but not in the more specialised category that I am in to-day. It seemed to me then—and I find my views substantiated since—that this survey, based on allegations which were never investigated, revealed no evidence of cases which involved the deliberate sending of unsolicited goods as a device for obtaining money. To do such a thing would bring great disrepute on a mail order firm, and it would also represent a futile commercial policy. The Consumers' Association drew then, and has drawn since, mistaken conclusions from this limited exercise.
During recent months I have noticed with great interest the commercial trend of Which? and on Sunday, March 7, last, I saw from their advertisement in the magazine Supplement of the Sunday Times that they had entered the mail order field; and again in the Guardian on March 16, and several times since. I am hoping that this venture or development will produce factual assessments and not emotive ones. Which? has a faithful and vocal following to whom the magazine is almost a Bible. This fact makes all the more responsible what is stated by a magazine which renders great service and to which I have subscribed from the beginning.
My Lords, I am saying all this because it was substantiated by the then Parliamentary Secretary to the Board of Trade on March 19, 1969, when she said that her Department had received, in 1966, 1967 and 1968, seven, six and nine complaints respectively about unsolicited postal delivery of books. She did not think this provided sufficient evidence of abuse to justify legislation. I do not know whether with great trepidation. I dare say that I hope the noble and learned Lord the Lord Chancellor will be of the same opinion. But at least there is no harm in trying, and this was the opinion of the Parliamentary Secretary—
§ VISCOUNT HANWORTH
My Lords, if I may interrupt the noble Baroness, Lady Burton of Coventry, may I ask her, first, whether she is referring only to books? If she is not, I cannot think that we have both read the same article in Which? of June, 1970.
§ BARONESS BURTON OF COVENTRY
My Lords, I have the article here and I will pass it along to the noble Viscount if he wants it.
§ BARONESS BURTON OF COVENTRY
My Lords, we both have it, so there is no necessity for me to pass it along. I have left the subject of Which?, but I will come back to it later if the noble Lord would like me to. I was referring to the statement from the Board of Trade. The Board of Trade made this statement, and I said that it referred to the unsolicited postal delivery of books. I am sorry if I did not speak loudly enough, but I was going on to say that the then Parliamentary Secretary to the Board of Trade will be well known to my noble friend on the Front Bench.
Hoping that I am not tempting providence, I should like to inform the House that we have no complaints concerning unsolicited goods in the office of the Authority. I hope that it is not an invitation to many after this debate, but at the moment we have none. Not to rely on ourselves alone, we have made detailed inquiries of the Mirror Group, the News of the World and the Daily Express," Action Line "—and for the information of the noble Viscount, Lord Hanworth, I may say that these were for any form of unsolicited goods whatsoever. The Mirror Group, after searching their records, found one complaint concerning gramophone records. The News of the World found none, but said that hoaxes came to light. The Daily Express was still looking and commented that this obviously could not be a major scandal. I am most grateful to the newspapers concerned, both for their trouble and for permission to quote them. I submit to the House that their evidence, plus that of the Authority, plus that of the Board of Trade, must be regarded as conclusive. The sending of unsolicited goods is not a problem in this country. It was not in 1969, and it is not to-day.
My Lords, of course confusions in the general sense can arise. Obviously it is possible for goods to be despatched when in fact a cancellation order has been sent by the customer. I do not propose to weary the House with a step-by-step survey of the mail order business, but mechanical and electronic procedures, plus the normal vagaries of the postal service, may result in goods being despatched after the customer has written. 1471 I would only say that such confusion is not confined to the mail order industry.
The noble Baroness referred to hoaxes. There is no known method of detecting any but the most obvious hoax orders. Perhaps your Lordships, as individuals, would just consider this for a moment. How do you detect any but the most obvious? The coupon appears to be filled in correctly, and the merchandise is supplied in good faith; obviously and eventually the recipient receives the bill—any business would send the bill following despatch of goods. The recipient is not to blame; but neither, equally, is the firm. I submit to the House that complaints about bills for goods innocently supplied are irrelevant, since bills are bound to follow automatically unless the recipient informs the firm that something is wrong.
I have had wrong merchandise from department stores before now, and I have certainly had wrong bills. I should think everyone in this House must have had a similar experience. No doubt we have all dealt with the situation in the same way. We informed the sender, probably more than once when the same bill kept arriving, and eventually the matter was put right. I can go back two or three years, when there seemed to be a positive jinx on my orders and I experienced, from three West End stores of considerable repute to which I subscribe, two cases of wrong bills and one of wrong merchandise. As I am sure your Lordships would endorse, the fact that I had paid the bills and had the receipts made not the slightest difference: the bills kept arriving. It was extremely annoying and frustrating, but, my Lords, it was obviously incompetence; it was not a sin.
If we take gas, or electricity, or the telephone services, the onus of showing that there has been an overcharge or a wrong charge falls on the householder. If the bill is correct, we nay it; if we think there has been a mistake we inform the supplier. I am sorry to labour this point, but it seems to be necessary. Unless we do inform the supplier, he cannot know that there has been a mistake. It is a nuisance to have to do this, but it has fallen to my lot several times, and I am sure it must have fallen to the lot of many of your Lordships. But really and truly 1472 it is not looked upon as an imposition upon a harassed recipient, and it can hardly be described as an attack upon our liberty.
I think that this Bill has serious defects which must be looked at in Committee. I know that this is not the occasion for a Committee speech, so, speaking generally, I would suggest to the House that in the framing of this Bill insufficient attention has been paid to the true situation. I think that facts have been submerged by emotion. When I prepared these notes I did not know that we were to have the highest legal authority in the land to reply to this debate, and I hope he will not mind my layman's efforts, because I am going to leave in my speech what I would have said otherwise.
My Lords, if I had been asked to consider whether or not legislation was desirable in regard to unsolicited goods, I think I would have tried to satisfy myself on four criteria. One, has the essential evil accurately been identified? In this case the knowing and unscrupulous despatch of goods that have not been ordered, followed by demands for payment. Second, was the problem numerically significant? Third, did the problem present a serious abuse? Fourth, would such a Bill, on becoming law, open the door to abuses more serious than those it would be able to cure? I will come back later to No. 4. The answers to Nos. 1, 2 and 3 are in the negative.
I hope I have convinced the House that inertia selling, in the strict sense, is very little practised in the United Kingdom. What is worth pointing out, however, is that one of the very few cases that could accurately be described as inertia selling in the American sense is the supply of office stationery. There must be some very few people concerned with consumer affairs who have not also heard of the carbon paper racket. Perhaps I should just add here that knowledge that the goods were unsolicited by the recipient is an essential element in inertia selling as defined and practised in the United States of America.
However, to return to my office stationery and carbon paper rackets, I should like to stress to the House that it seems to me that these would be excluded from the scope of this Bill by the words in Clause 1(2), which read:… that the recipient has no reasonable cause to believe that they were sent with 1473 a view to their being acquired for the purposes of a trade or business….Clearly, office stationery is intended to be acquired for the purposes of a trade or business. Perhaps the noble Baroness and the noble and learned Lord the Lord Chancellor will be able to look at that point again.
I will now return to the main problem that I put before your Lordships. It was made evident by the three speakers who spoke first that inertia selling is an emotive issue. Some people would transfer this emotiveness to the mail order business. I hope they will not succeed. It would be most unfair. Truly, there is very little inertia selling in this country. In the Second Reading debate in another place on December 4 last, the Minister, referring to complaints against the sale of goods or gramophone records by mail order, said:I have never thought it likely that deliberate inertia selling techniques were being used although, as the honourable Member for Rugby hinted, there will be the odd occasion where a fraud or a hoaxer engages in those techniques. Investigation of the main body of complaints last year convinced officials, who talked freely to many of the firms concerned and inspected their operations, that there was no deliberate attempt to engage in inertia selling."—[OFFICIAL REPORT, Commons, 4/12/70, col. 1681.]The Minister went on to say that he thought the trouble had arisen from a combination of three factors: namely, hoax orders, confusion over reply cards, and an unexpectedly large increase in orders.
The noble Baroness mentioned the Advertising Standards Authority. I believe the Advertising Standards Authority—of which I think the noble Lord, Lord Drumalbyn, was Chairman at the time—reached the same conclusion. I am submitting that in view of these findings by the Department it is obvious that these errors, tiresome though they may be, are due to human error rather than deliberate action. So far as I am concerned, and my Association is concerned, we hope to minimise these errors. Human error can never be eliminated, not even in the field of perfection required by manned space flight. The Minister then stated that complaints to the Department had virtually ceased and paid tribute to the mail order publishing firms for the efforts they had made.
1474 I have regarded my task to-day as being completely objective and factual, apart from my opening remarks to which I was provoked. I hope I have convinced the House that inertia selling in the strict sense is very little practised in this country. I hope I have convinced the House, citing in addition the findings and conclusions of two Ministers in another place, that human error rather than deliberate action caused such complaints as were made. I hope very much, personally, I have convinced the House that when a customer receives a wrong account or wrong merchandise he or she normally writes to say so. If this is accepted, and in equity it must be, because it is a statement of fact, then I ask your Lordships to agree, in the context of this Bill, that anyone receiving wrong accounts or wrong merchandise—merchandise they have not ordered—shall, similarly, be asked to write and say so. Otherwise, how is the innocent supplier—any more than the innocent retail firm—to be made aware of the error? Indeed, as Which? stated, the recipient of unsolicited goods should be able to dispose of them in any way he wants to, provided he gives reasonable notice. That is why I hope there will be agreement that Clause 1(2)(a) shall be deleted. As it stands, it opens the door to widespread fraud, and if the noble Baroness or the noble and learned Lord, the Lord Chancellor, in view of what I have said, could have a look at this suggestion, it would be much appreciated, and benefit both the Bill anti the customer. Also it would be fair.
Quite honestly, I do not think it is putting a grievous burden on anyone to ask him to send a note when unordered goods have been delivered in error—as does Clause 1(2)(b), which I should be glad to support and which the noble Baroness mentioned at the beginning; although she did not say Clause 1(2)(b), she did speak about giving reasonable notice. Then, if the goods are not collected within the period named the matter is closed and the goods become the property of the recipient. That seems to me just. But you cannot permit people to keep goods which were sent in error and to which they have no right. I repeat, to do so would be to open wide the doors to fraud, at which I hinted 1475 earlier in my fourth criteria point, and on which, obviously, I would prefer not to elaborate.
To conclude, I should like to draw attention to some general trends on Report and Third Reading in another place. I realise, of course, that these can only be general, but I think they are too important to pass unnoticed. I hope that emotive phrases, to the effect that the purveyors of unsolicited goods will no longer feel that the advantages merit the risks attached, will be ignored, or rejected in this House; also a further statement that this has become an increasing nuisance over a large number of years. I can only repeat that to send unsolicited goods would put firms out of business, while the second statement is just not true. One form of reasoning was beyond me altogether. Apparently losses suffered by mail order firms through hoax orders, and aggravated by this Bill, must be accepted because supermarket and retail shop organisations have losses through theft. That strikes me as the most peculiar argument for Clause 1(2)(a) that I have yet come across.
The Minister stated at column 1927:In trying to discourage the sender of unsolicited goods, we may well be making things more difficult for the genuine mail order firm, and we want to make sure that does not happen. Hoaxing must not be exaggerated, but it is nevertheless a real problem. There are practical jokes hoax orders, and there are fraudulent hoax orders where someone orders goods for himself, using another address, or pretends that he has not made the order. Anything that encouraged that practice would be unfair on the mail order houses, and I do not believe that anything in the Bill encourages it.With respect to the Minister, Clause 1(2)(a) does encourage hoax orders. I hope that the proof I have offered to-day will persuade the noble Baroness and this House, the noble and learned Lord, the Lord Chancellor, the Minister and another place to delete that subsection. That done, I wish the Bill speedy progress and success.
§ 4.38 p.m.
§ LORD DERWENT
My Lords, I hope that the noble Baroness, Lady Burton of Coventry, will forgive me if I do not follow her, because I have neither the knowledge nor the facts either to refute her arguments or to support them. In general, may I say that I think I support 1476 this Bill. In fact, I support it all except Clause 4, and it is that clause I wish to speak about. I think it is a disastrous clause. My noble friend of course is in the great difficulty that if we were to do away with this clause and send the Bill back to the other place without it, she might lose the Bill. That, I believe, is her view. That would be a pity, because I think this Bill needs passing. But even the honourable Member in the other place who moved the insertion of the clause said that it was not at all what he would like; that it was not a satisfactory clause. He went on to hint that the best thing to do was to pass it and send it up to your Lordships, who undoubtedly would put the matter right.
I do not believe that it can be put right. My noble friend says that she will move an Amendment in Committee, which I shall be very interested to see, making it clear that there can be no frivolous prosecutions because no prosecution will be able to be brought without the permission of the Director of Public Prosecutions. I wonder whether that is good enough. It is an odd clause anyhow; as my noble friend said, it ought not to be in the Bill at all. The wording is so odd to start with. You must not send unsolicited—I am paraphrasing—any publication which describes or illustrates sexual techniques. I know what people want to stop, and I agree with them. But what on earth does it mean? What are, exactly, "sexual techniques"?
What is worrying me particularly is the position of perfectly reputable firms who make birth control goods—what in my young day were normally referred to as "rubber goods" but I think that phrase is not much used nowadays. It is a long time ago now, more than forty years, when my son was born. I then received from one of these most reputable firms of manufacturers a letter which said:We congratulate you on the birth of your son. Was it by design or accident? If by design, we apologise for writing. If by accident, we will send you our catalogue if you would like it.And they explained what the catalogue was about. For all they knew, it might have been my fifteenth child. I might have been completely ignorant of anything, and in those circumstances their catalogue would have been very welcome.
1477 Is there anything frightful in writing a letter of that kind? I imagine that they were really talking about sexual techniques; I suppose that it could come under that heading. Are they to be prosecuted and fined because they are carrying on their business in a perfectly respectable way? Really, this is an extraordinary clause. Even with the proviso that a prosecution can be brought only on instructions from the Director of Public Prosecutions, and therefore no frivolous prosecutions will be brought, the law will still apparently say that if anything comes, frivolous or otherwise, describing sexual techniques—not pornography, or anything of that kind—then a prosecution can be brought. We ought to be careful about passing this clause unless it is properly amended. For that reason, I hope we shall hear a good deal about it from my noble and learned friend who sits on the Woolsack, because at the moment I think the clause means nothing; but if it does mean anything it is extremely dangerous for perfectly reputable traders.
§ 4.43 p.m.
§ LORD JACQUES
My Lords, as one who has spent a lifetime in the consumer Co-operative Movement, I welcome any legislation designed to protect the consumer. Therefore I welcome this Bill, but, like my noble friend Lady Burton of Coventry, I have some doubts whether it is necessary. I would ask for one point to be considered between now and the Committee stage. So far as unsolicited goods are concerned, the core of the Bill is Clause 1(2)(a) and (b). Paragraph (b) says that the recipient can give 30 days' notice, and if, within this 30 days, the goods are not collected, then he can assume that the goods belong to him. If it involves giving notice I see no harm in that at all, but, as my noble friend Lady Burton pointed out, paragraph (a) is a different matter. The recipient has merely to sit upon the goods for six months and then assume that they belong to him.
I suggest that this provision requires further consideration, if you are going to give adequate protection to the innocent trader. I will give two examples. It is possible that a retailer could deliver goods to a customer in error. For example, instead of the goods being delivered to No. 87, they may be delivered to No. 78. The customer who 1478 should have received the goods may, like many ladies, reserve the right to change her mind—that often happens in some spheres of department store trading after customers have made a purchase. She finds that she does not get delivery and she does nothing about it; consequently the poor trader does not know that the mistake has been made. At one time the common period for credit outside of hire purchase was six months, but in the last decade it has been changed and it is now nine months. I suggest that it is dangerous to allow the recipient to sit upon the goods for six months and to assume ownership of them at the end of that period. There could be an error by an innocent retailer who did not have the opportunity of finding out that error until the six months had elapsed.
There is also the question of fraudulent practices. It is possible for two persons to arrange that one of them represents himself to be the other and persuades a retailer to deliver goods to the other on the basis of nine months' credit. The goods are duly delivered and kept. The recipient would argue that they were delivered to him unsolicited with a view to his keeping them. The trader would prove that they had been ordered by somebody, but he would not be able to prove dishonesty because of the difficulty of identification. I suggest, therefore, that this clause has dangers for innocent traders, and at the very least the period of six months ought to be extended, especially in view of the fact that the period of credit is now nine months. I would plead that between now and the Committee stage the noble Baroness, Lady Elliot of Harwood, would consider making this 12 months, so as to protect the innocent trader who may have delivered in error, or upon whom there may have been a fraud. By extending the period we can give him some protection.
§ 4.47 p.m.
§ LORD PLATT
My Lords, although I agree with the intentions behind this Bill, I share with the noble Baroness, Lady Burton of Coventry, a certain amount of doubt as to its necessity. Though it is somewhat boring to decribe personal experiences I should like to describe the only two occasions when I have certainly received unsolicited goods not by accident, because they have a bearing on 1479 some of the clauses in the Bill. Both instances were before the war, and probably in the 1930s. It may be, of course, that the practice has completely died out since then.
We in the medical profession are vulnerable to this kind of thing, and we receive every day enormous numbers of advertisements for drugs and medical appliances of various kinds; but those are not unsolicited goods under the meaning of this Bill. At one time I received a rather beautiful tongue depresser, an instrument to depress the tongue in order to look at the throat. It incorporated a very nice electric light. I began to use this and I found it useful. In due course I received a series of letters and bills, to none of which I paid the slightest attention until the senders finally asked me to return the goods. I then wrote to them, saying that I could not do so because they were in daily use, and I heard no more.
The other occasion was when I received a nice parcel of linen handkerchiefs from Northern Ireland. I mention this particularly because the last words in this Bill are that it does not extend to Northern Ireland. I did the same in this case, and after many letters and applications for payment the senders finally asked me to return the goods. Again I said I could not do so because they were in use, and they were very nice. I did not pay anything on either occasion.
I did not rise simply to bore the House with my personal experiences, but I wonder, if this Bill is to go forward at all, whether much would be lost if it stopped at the end of Clause 1(1). Omitting the first words,In the circumstances specified in the following subsection "—the Bill could then read,A person who receives unsolicited goods may dispose of them as if they were an unconditional gift to him, and any right of the sender shall be extinguished.What is wrong with ending the Bill with those words? Perhaps a small amendment could be put in covering cases which the noble Lord, Lord Jacques, has mentioned, where there may be a genuine mistake and the unsolicited goods were really meant for somebody else.
1480 When we read on the words almost spoil the effect of this clause. Subsection (2) of Clause 1 states—and this I do not understand and I should like clarification—… that the recipient has no reasonable cause to believe that they were sent with a view to their being acquired for the purposes of a trade or business….I do not know whether the profession of medicine is a trade or business, but I should have thought that in this case it comes under that heading. That is why I mentioned the first instance, which was clearly one of something being sent to a professional man for use in his profession. I do not see why that should be made an exception in any way. Then we come to paragraphs (a) and (b), which deal with storing the goods. There is nothing to prevent people from sending a television set or something like that, and the storage might be a considerable problem. Then there is the matter of writing to the firm, presumably at your own expense, which seems to me quite unnecessary. So I ask those responsible for this Bill to consider whether these other clauses are really necessary at all, and whether, practically speaking, Clause 1(1) is all we need.
Clause 2 deals with penalties, and I shall need some clarification as to how the transgressor is discovered and whether the recipient has to take legal proceedings—I presume not. I suppose that this would be a matter for the public prosecutor, if he were informed about the offence. I must, as President of the Family Planning Association, refer to Clause 4 because unquestionably the practice of contraception is a sexual technique. This clause seems to me—as others have said in different words—to prevent the legitimate sending of advice about contraception, which under certain circumstances might be quite legitimately sent. That is all I have to say, but I should like to have answers to the questions which I have raised.
§ 4.53 p.m.
§ VISCOUNT HANWORTH
My Lords, at the outset I think I should declare some sort of interest, though it is only a small one, in so far as I am now a part-time technical adviser to the Consumers' Association. But I knew about this problem long before, while I was working with the Consumer Council. Let me 1481 begin by saying that it is true that inertia selling may not be very prevalent at the present time, since as soon as the idea of a Bill to stop it was mooted it went into a severe decline. It is also true that the Consumer Council themselves did a very great deal in taking up one or two flagrant cases and in getting co-operation from some of the firms concerned, who changed their salesmen and techniques when they realised that they were making life a little too hot for themselves.
With all due respect to the noble Baroness, Lady Burton of Coventry, may I say that I found her speech quite extraordinary because, even assuming that this practice has declined, she used some extraordinary arguments to bolster up her case. First of all, she said that this subject is emotive. Why does she think it is emotive? It may be emotive, but this seems to me to be merely using various adjectives and techniques to try to squash the Bill, without any argument at all. She then said, or implied, that the Which? survey was a bad one. Why did she say that? It was an honestly made survey. The Consumer Council made many surveys, and this practice did exist. Does the noble Baroness really mean to imply that practically all of the cases were simply mistakes, with firms sending out goods and customers getting cross? That is simply not in line with the facts known by those who have had anything at all to do with this subject.
Then she sought to prove a negative. When you have accused somebody of failing to prove a positive and you then say, "I am setting out—and it is perfectly all right—to show you that it does not exist" it is an extraordinary thing to do. One of the most difficult things in the world to do is to prove a negative. You can always find cases to prove a positive, but to say that something does not exist because you have consulted one or two people or organisations seems to me quite extraordinary. Another remark which I feel shows some lack of knowledge of what goes on is that inertia selling is not effective. But it has been employed in lots of other countries with enormous success and flourished. I cannot see that that can be taken as an argument against the Bill. However, the question is whether there 1482 is now sufficiently serious abuse to justify the Bill, and my own feeling is that this is an opportunity. We have got the Bill so far, and if it does not go through almost certainly the frequency of inertia selling will increase again.
The Board of Trade dealt with nine cases in 1969. But, bearing in mind the sort of people to whom this inertia selling is applied, it is quite extraordinary that they had as many cases as that because the average person simply does not know how to write to the Board of Trade. They may occasionally take up something with their M.P., but I should have said that this was the tip of an enormous iceberg under the sea. Again, if we refer to the Which? article, it is rather hard to believe that somebody who could write like this is quite free from any blame at all and merely sent goods to the wrong person. The quotation is as follows:… authorise the next of our Collection Department procedures which I know are not pleasant. They are, however, effective and in the end you will pay".That is part of a letter from the offices of Heron Books. That was a very common occurrence and one could go on quoting instances of that sort. To say that it was only a mistake seems to me indefensible.
There is the question of how much the recipients of these unwanted goods are inconvenienced. In the first place, one has to remember that houses are very small and that many people have large families. Whether the goods are bulky or not you have to protect them so that they are not damaged. You may have to go on doing that indefinitely unless you are prepared to pack them up and pay the postage to send them back. Even under the present Bill you still have to look after them for six months unless you give notice to the sender in writing. If after a month nothing has happened the goods belong to you. But many people who are exploited in this way do not understand how to write the correct sort of letter. In any case, they have to pay the postage. Therefore, I think that there is a difficulty for people who have this inertia selling practised on them, particularly when it is followed up by further correspondence.
I really cannot understand why the trade should be worried and should want a period of more than six months to 1483 elapse before they lose the goods. If they cannot be a little more careful with their goods, then I suggest that they should recover them in a month. I find the suggestion of nine months quite impossible. I cannot understand how the owners of any efficiently run business could possibly be worried. Hoaxing, of course, is another matter; but, my Lords, in the end the way in which a business is run is changed according to the circumstances. Many present practices would have been considered quite wrong a number of years ago, and firms change their method of business quite easily. My suggestion to them is that they change them, and that they hunt up their goods and accept the occasional loss of items through the carelessness of wrong delivery.
§ 5.0 p.m.
§ LORD DONALDSON OF KINGS-BRIDGE
My Lords, my noble friend Lord Hanworth has said very forcibly most of the things that I wanted to say, and I shall not repeat them. But I should like to refer to the development of this Bill. It started in my mind about 18 months ago, when I suggested to my Director of the Consumer Council that we should have a Bill exactly like the Bill which the noble Lord, Lord Platt, suggested. She said, "This really is too simple; there are difficulties about hoax; there are difficulties about mistake. I do not think you can do that." She also said, "I wonder whether it is worth doing at all, because the real problem is not unsolicited goods, but inertia selling. "At the same time, the Consumers' Association were preparing a draft to deal with unsolicited goods, and we got together and tacked on some clauses which attempted to deal with inertia selling. Your Lordships undoubtedly know the difference, but in case you do not I will illustrate it.
Unsolicited goods comprise the parcel which arrives and for which you have not asked. Something sold you by inertia selling is something which is, as it were, extrapolated (as the economists call it) from a previous order. For instance, if you sign a coupon in a newspaper saying that you would like the free gift of a certain kind of book, or a certain kind of gramophone record, the suppliers send it to you and say, "With this free gift 1484 we shall send you a book a month at 7s. 6d. a time unless you tell us not to." This is inertia selling, and there are many varieties of it. This is the real evil at the moment, and it is extremely difficult to deal with. The Board of Trade, who have blessed this Bill in relation to the extension of it, were so hostile to the feasibility of enforcing if that my honourable friend Mr. Arthur Davidson, 18 months ago, in January, 1970, dropped it out of his Bill, and Mr. Goodhart has not put it into his. But this is the history of the matter. This is really an attempt by consumer organisations who, supported by Member of Parliament after Member of Parliament, can quote case after case of fraudulent pressure put on people to buy things and of offensive letters then being sent to them to make them pay for things they never ordered.
My noble friend Lady Burton in a white sheet I find irresistible. I am used to her as an attacker, but as a defender she is very powerful, so I am not going to quarrel with her (that is more than my life would be worth) and pretend that I think the unsolicited goods practice is very common. I have never been sent any unsolicited goods in that form, although I have frequently been sent things which, with less skilled operators, would work into inertia selling. I always take the first sample and refuse anything else, and I have in my library several books which were meant to lead on to further purchases but which in my case did not; but, of course, some people have not the wisdom that we have. I am not going to attack the noble Baroness for her defence; I think it was a little wider than it need have been, but this is legitimate in defending counsel. It is interesting to note that since this agitation started, in January, 1970, practices, as my noble friend Lord Hanworth said, have very much improved. Certainly both the Consumers' Association and the Consumer Council were in touch with firms whose practices we very much objected to and who appear on the list of members of Lady Burton's group. But I am sure that those practices have ceased, so that we shall have not done nothing, even if we stop here.
My Lords, when we come to a consideration of the Bill, I cannot resist pointing out how relevant was the Unstarred Question of my noble and learned 1485 friend Lord Gardiner the other day, because Clause 1 here concerns the Board of Trade; Clause 2 concerns magistrates in their courts, which is the Lord Chancellor's Department; Clause 3 concerns prosecution for a criminal offence, which is the responsibility of the police and the Home Office; and Clause 4 concerns sex, which, within reason, is a matter for the Ministry of Health and, without reason, is a matter for the Home Office. So that, one way or another, we have them all included in this Bill.
The Bill has diminished, as I say, by the taking out of the inertia selling parts, and it has grown in a rather ugly bump by the addition of Clause 4, about which I shall say nothing. Nobody has ever sent me one of these testimonials which I must say I rather resent; but I do not think it is for me to criticise the Bill here. It is desirable to stop the unsolicited spread of pornography, and I think it is likely that the noble Baroness's attempt to get round her problem by referring it to the Director of Public Prosecutions may be satisfactory.
The issue, and the only important issue, my Lords, is Clause 1(2)(a). Is it necessary that a firm which is trying to make money by sending out samples in one form or another should be in a position to put any private individual under any liability whatever? This is the problem. I think it is agreed that by Common Law they are able to put a private individual under the liability of not damaging or keeping safe something which he receives, and at the moment there is no limit to the time he is supposed to do that. Thus this Bill, by imposing a limit of six months, takes nothing away from the sender, and slightly limits the receiver's liability. I personally feel that Clause 1(2)(b), as Lord Jacques says, is perfectly satisfactory. To me, Clause 1(2)(a) is about right. I agree with Lord Hanworth that six months is a ridiculous time. Originally we had it in the Bill as one month, but we were gradually broken down by the pathetic squeals of these computerised organisations which cannot get a bill out for certain under six months. Very well—this is the world we live in, and I accept six months. But the idea that this limit should be removed altogether, and that a liability should be placed on people to reply when they are 1486 sent things they do not want, is not acceptable to me.
So, my Lords, I think we must support the noble Baroness, Lady Elliot, with this Bill. We must close our ears to the moving and dramatic appeals of my noble friend Lady Burton, and to the less dramatic but no less cogent appeals of my noble friend Lord Jacques. We must remember that there are not only innocent traders; there are also innocent customers—and in my opinion they are a good deal more innocent than the traders at the fringe. It is impossible to tell: there are, of course, crooks who will take advantage of this sort of thing, but there are crooked traders, too, and my view is that the one does more harm than the other. We shall all be intrigued to know what the noble and learned Lord will make of this extremely complicated legal problem, and I await his verdict with fascination.
§ 5.9 p.m.
§ LORD REDESDALE
My Lords, I must first declare an interest in that I am connected with a mail order company. I should like to go on to say that I shall be brief, because, coming in as tenth man, at the end of batting, I am sure that everybody has heard so many good speeches that there is little else to be said. Therefore, I shall confine myself really to one part of the Bill. However, listening to Lord Derwent, I, as the father of seven, wondered what would happen by the time I had had seven letters. The senders would probably have given up by that time.
First, one must obviously congratulate the noble Baroness, Lady Elliot of Harwood, on bringing this Bill before the House. I should like to take up one or two points with the noble Baroness—not in the pitiful way that Lord Donaldson inferred, but I shall try to put over a logical and reasoned argument. Let me start by putting the problem into perspective. The noble Viscount, Lord Hanworth, and the noble Lord, Lord Donaldson, were both talking about inertia selling. I shall not follow them in that matter because this Bill is concerned with unsolicited goods.
As the noble Baroness has said, there are very few complaints on this subject at the moment. "Action Line", in the 1487 Daily Express, and other complaints columns, are always flooded with complaints when something is seriously wrong; so if there is little of that at the moment one can say the situation is fairly dead. I am not denying what has happened in the past in fields other than that of bookselling. It is interesting that the noble Lord, Lord Platt, should mention two genuine cases of unsolicited goods. Of course, doctors have been subjected much more to this sort of thing than have other sectors of the public or the professions; but those were genuinely unsolicited goods.
When one is talking about unsolicited goods one must realise that it is obviously uneconomic for most companies to send out any goods which are of real value because experience tells them they may not get them back; they simply cannot afford to do so. However, the problem so far as reputable mail order companies is concerned lies in the provisions of Section 1(2)(a) which does not cover the question of hoaxes. I am afraid that there are a large number of these hoaxes. At a time of a General Election or some similar period of activity, large numbers of people write into mail order firms and fill in order forms with names like "H. Wilson" and so on, with an address. The noble Baroness said that it is up to the mail order companies to be sufficiently vigilant to spot these hoaxes: but in fact it is very difficult to discover whether an order form properly filled out is a hoax. So the goods are sent off in good faith. Obviously, this is extremely irritating to the persons who receive these hoax orders, but we should bear in mind that it is also very expensive for the company which sends them. Admittedly, they are in business to make money and this is a risk that they must take; but this matter of hoax orders must be examined very carefully, because the Bill gives no protection to the companies at all.
The Bill does not cover the more serious angle, the fraudulent order. Two people get together. One may say to the other, "I will fill in this order form with your name and your address. You will get the goods although you didn't really order them. After six months, you can keep them." Clause 1(2)(a) provides no protection on this matter.
§ LORD DONALDSON OF KINGSBRIDGE
My Lords, surely there is the protection that you send a bill three times, and after the third time you pay a visit? This is ordinary commercial practice.
§ LORD REDESDALE
My Lords, the period is one of only six months. The goods will have been sent out on an order which has been signed, and this order will have been accepted in good faith by a reputable company. I agree that the period is one of six months, but these days people wait a long time before they pay. This is one of the facts of life. I feel that there is no great onus on somebody receiving goods not genuinely ordered to write to the company—a reputable company would refund the postage—and say that they have not been ordered. Pre-paid cards could be supplied and also labels for the return of the goods.
My Lords, I am trying to be as logical and reasonable as possible, and I do not think that this is imposing an unreasonable burden on the persons who receive the goods. The serious aspect of the matter is that we know that fraud has increased. The more you talk about it, the more frauds are likely to be committed. The problem is similar to vandalism. The more publicity given to British Rail having had their trains vandalised, the more it occurs. Therefore, the more you talk about fraud, the more cases of fraud there will be. But we must recognise that there is an area for fraud, and that there is no protection at the moment within the Bill on this subject. I hope not to appear to be over-dramatising the situation, but I believe that this Bill could be a charter for fraud. It legalises a situation where two people can work together to take a company's goods. Therefore, I hope that when the Bill is debated in Committee, these matters may be examined very carefully and given full consideration.
§ 5.16 p.m.
§ THE LORD CHANCELLOR (LORD HAILSHAM OF ST. MARYLEBONE)
My Lords, let me first assure the noble Lord, Lord Donaldson of Kingsbridge, that, departmentally speaking, the Lord Chancellor's Department has no truck with this Bill or with any part of it. It is a Department of Trade and Industry-sponsored 1489 subject, and I am here largely because it was thought that I could help the House. I shall try to do so. Secondly, the status of this Bill is that of a Private Member's Bill. Your Lordships may suspect that a number of the Private Members' Bills which have come before this House in recent weeks have been Law Commission Bills; and it may be suspected that I have rather encouraged private Members to take them up—and if you harboured that suspicion your Lordships would not be wholly wrong.
But this Bill is genuine private enterprise—that is to say, the Government have not initiated it covertly. It was voted on in the House of Commons by a free vote and it will be voted on in this House by an entirely free vote. If this House likes to pass it, then the Government will do their best at all stages to enforce it, to treat it kindly and even to give advice about the wording of Amendments. But it is not a Government Bill and therefore an attitude of benvolent neutrality is that which I have been briefed to adopt. I shall try to be both benevolent and neutral.
My Lords, when you are considering legislation I think it is worth while asking some, at any rate, of the questions asked by the noble Baroness, Lady Burton of Coventry. The first is: what is the extent, if any, of the mischiefs aimed at? Secondly, if the remedy proposed a reasonable one? Thirdly, is the whole exercise worth while? There is one other fact of life that I ought to mention, as delicately as I can; that is, that if this Bill does not get through the other place by May 7 (I believe that that is the date) I think that it will die this Session. This means that if your Lordships were to insert a great number of very controversial Amendments, it would probably kill the Bill—and I have an idea that the noble Baroness, Lady Burton, might not mind that. But at any rate those who want to keep the Bill should try to keep Amendments reasonably uncontroversial to avoid long debates in the other place.
§ BARONESS BURTON OF COVENTRY
My Lords, may I say that I have no desire to kill the Bill; merely to kill Clause 1(2)(a).
§ THE LORD CHANCELLOR
My Lords, that would be a modest result for a splendid speech which managed to 1490 convey, at any rate to my mind, a slightly less enthusiastic impression.
My Lords, the Bill purports to deal with three quite separate mischiefs: the unsolicited goods mischief, the bogus directory mischief and the sexual technique mischief—if I may be forgiven by my noble friend Lord Derwent for employing the term about Clause 4. Are these real mischiefs? I think everyone is agreed, and my noble friend Lady Elliot—whom I should like to congratulate on her speech in introducing the Bill—quite clearly established a prima facie case, that the bogus directory mischief is really quite substantial; and, prima facie, there is a case for dealing with it. I listened all through the debate and no one seems to have challenged that. We have all come across it—or most of us have—and those of us who practise in the criminal courts have come across it quite often. The point is not that it is an objectionable practice to ask traders to put their names in a directory; the real point is that there never is going to be a directory at all.
Up to a point the practice can, of course, be dealt with by the existing law. There is no doubt that the people concerned can be prosecuted for fraud; and as there are nearly always more than one involved, you very often prosecute them for conspiracy to defraud; and that is the end of the matter—if you can catch them. But it is a typical criminal activity and, as my noble friend Lady Elliot said, it exists on a substantial scale. She gave figures that I have no means of confirming or challenging; but I think that everyone who practises in the criminal courts has at some time or other come across the bogus directory fraud. I think that, marginally at any rate, this Bill would make it easier to deal with the problem, because it ensures that the person is committing a summary offence at the time he sends out the circular, demanding money, if it does not contain certain particulars which may be checked. As I say, the fraud can be prosecuted anyhow, under the general law, because it is criminal: there is not a directory, and there is never going to be one, and therefore the thing is an ordinary fraud. But, marginally, I think that probably the provisions of the Bill deal with that.
1491 Now there comes the more complex question of Clause 1, about which again I want to be benevolently neutral. Undoubtedly there is some evidence of some undesirable sales practices in this field. I personally, over a rather long life, have had one or two experiences. The Board of Trade have had more complaints than would be gathered from what was said by the noble Baroness, Lady Burton, covering goods of all kinds, but not a very great number. One does not want to overstate this case: the extent of this mischief is not very great. I think the Board had 60 complaints in 1969, and apparently nearly all of them related to books or gramophone records. I should like to warn the noble Lord, Lord Platt, that he acted a little incautiously in the two cases of his own which he described. I have every sympathy with him; I think it a most objectionable sales practice. But I would venture to say a word about the law on this subject without the complete confidence that I am right.
I do not wholly agree with the noble Lord, Lord Donaldson of Kingsbridge, that you can impose any liability on a person who receives these goods. The question depends, I think, speaking solely of English law, on whether you can create bailment by doing so. If you look up the law on bailment you will see that bailment is essentially a contract. In some cases it is an unusual type of contract in English law, because in the case of gratuitous bailment the consideration does not flow from the recipient. There is no consideration flowing from the recipient; therefore it is an unusual type of contract. It all flows from a very famous decision of Lord Holt, at the very beginning of the 18th century, called Coggs v. Bernard; but I think it must be the case that you cannot impose bailment on anybody without his consenting to it. In other words, it remains from start to finish a consensual arrangement.
If, for instance, to use an absurd example, you drop a packet of goods on my garden by parachute, I am under no obligation that I can see to take care of them in any kind of way at all. I can leave the rain to come down on them and rust them or rot them, and I do not think that anybody can complain of my 1492 conduct in leaving them severely alone. But, of course, in the actual circumstances of sending them by post into a little house, the temptation to use them is almost irresistible; and I am bound to say to the noble Lord, Lord Platt, that if in fact you put them down a patient's throat, that might be construed, if not as an acceptance of the bailment, at least as a conversion of the goods. So, if the noble Lord will take my advice, he will not do that again.
I appreciate, of course, that if this undesirable practice of salesmanship is indulged in, there is a need to clarify the legal position of the ownership of the goods; and I am quite sure that my noble friend Lady Elliot will be sufficiently flexible in Committee to discuss the actual terms of what is proposed.
§ LORD DONALDSON OF KINGSBRIDGE
My Lords, may I clear up one point with the noble and learned Lord? We have all been led to believe—all the people who have been examining this; I suppose on some good legal authority, but I cannot quote it—that if, for example, you receive a gramophone record into your house through the post; you look at it and find that it is something you have not ordered and leave it on your hall table, and your child breaks it, you are liable. If this is not true, I think it rather changes the whole picture.
THE LORD CHANCELLOR: My Lords, in the brief provided for me, the Board of Trade solemnly say that it is true. But I take leave to doubt it. I cannot see how that differs from the case that I tried to describe, of the man who drops the goods by parachute—I always give absurd legal examples, because they bring out the principle more clearly than the likely ones. I was very careful not to say it, because I think the Departmental view is probably nearer to the noble Lord's than mine; but I do not see how you can impose a bailment on someone unless he consents to it. Of course, it is very easy to consent if you have used the goods, but if your child sits on them, or throws them out of the window, I cannot see that you are necessarily liable. I think that on an occasion like that it is a case of caveat vendor. However, my Lords, I must not 1493 give this gratuitous legal advice, because it is almost certainly wrong. But that is my genuine opinion. I think this matter needs clarifying, and I am sure that the attitude of my noble friend will be sufficiently flexible during the Committee stage. I say again that if she wants to consult the various Departments involved in this matter, or any of my right honourable friends in another place, about what would be viable on Committee we will do our best to help, without breaking our neutrality.
The last of the three mischiefs which is aimed at was put in on Committee stage in another place, and relates to this sexual technique business. I must, I think, instruct my noble friend Lord Derwent more throughly on this subject. I will tell him first of all what it is about. I can describe what it is about because I probably know more about this particular mischief than any other man in the country; and I will tell your Lordships why. A year ago I was the Opposition spokesman in another place on home affairs, and at that time there was a firm called the Julian Press. I am told that they have since "gone bust", and I am very happy to hear it. They devised the idea of sending out fairly widespread a circular, and, if you fined it in, you were led to believe that you were going to receive a book which would tell you exactly "how to do it" (if I may put it delicately in that way)—as if you did not already know.
The pamphlet said: "Do you want to make your marriage more happy?" The book was said to be frank, highly descriptive and courageous—all of which are virtues which the right reverend Prelates would endorse. A great many of these leaflets were put out. I receive a great many leaflets—there is some advantage in being the son of a clergyman. The noble Lord, Lord Donaldson of Kings-bridge, said that he never receives leaflets, but I have had a great many, some of which, I am happy to say, I received in my own right.
I was tempted to do something suggested by the noble Lord, Lord Redesdale, and send in a hoax order. I thought of various persons whose names I might fill in. Eventually, I said to myself, "No; I am a Queen's Counsel; I am a Privy Counsellor, a person of dignity and responsibility". So I did not put in an 1494 order. Unfortunately, other people who had received these leaflets thought at once of me. I must have been sent something like 500 of these circulars. Many of them were from people in the constituency for which I was then Member in another place, and they had every reason to send them, saying that they did not like the circulars. Many Conservative Members of another place also wrote to me, as their spokesman, on this question and asked if I could do something about it; and a large number of the public, without regard to their own Members of Parliament, wrote to me because they thought that, as a Christian, I would strongly object.
In the pamphlet itself there was nothing at all obscene; otherwise the people concerned would have been prosecuted for obscenity. It did describe, whether fraudulently or honourably I do not know, a book which if not actually obscene, would have been very enjoyable for those who enjoy obscene literature. But it was seat out in a widespread way. I had one which was sent to a nunnery. All the nuns had one. Another, for example, was sent to a woman who had just been widowed, and in the throes of grief, asking her, "Would you like your marriage to be a happy one?" Even children received it. It was sent without the smallest apparent knowledge of the kind of people who were recipients. I suppose that some label-addressing company had sent out these leaflets. But I can tell your Lordships that people were very angry indeed.
The clause in the Bill, as it has come to us from another place, is a reflection of the almost universal indignation which is felt in that place because of this nuisance. Apart from the Julian Press, two or three other firms were doing the same thing. I regard this as a very objectionable practice, not because it was obscene but because it was an invasion of privacy. It might not have been very highly criminal; it was simply exploiting sexual curiosity for profit. It had nothing whatever to do with selling contraceptive devices, which I do not think is a description of sexual techniques, but is a way of selling goods. It bore no relation at all to the Family Planning Association or any reputable body whatever.
The other place inserted this clause—which admittedly has defects, some of 1495 them known to my noble friend (and it may be slightly out of place)—because the Members objected to this unsolicited method of exploiting sexual curiosity for profit. On a free vote the other place sent us this clause for what seems to me to be a fairly good reason. It is not any attempt to try to suppress family planning in any way. All I can say to my noble friend is that if she consults with the Government to see whether she can improve the wording of this clause, perhaps by an Amendment in Committee, our services are at her disposal. We are benevolently neutral on this Bill.
I hope that I have managed to assist noble Lords in knowing a little more about the Bill and the arguments that ought to weigh their decision. If there are any points on which I can help your Lordships, I will do my best to do so.
§ 5.35 p.m.
§ BARONESS ELLIOT OF HARWOOD
My Lords, we have had a very interesting debate on the Second Reading of this Bill and we are exceedingly grateful for the delightful, brilliant and altogether entertaining speech from our noble and learned friend the Lord Chancellor. The Bill has had a very different reception in your Lordships' House from the one it received in another place. I did not listen to the debate there, but I have read all the papers and it was surprising to find that one or two Members, whom I had not anticipated to be so critical, put forward criticisms of the Bill.
I am most grateful to the noble Baroness, Lady Phillips, for her support of the Bill. On her question about enforcement, I shall certainly consult my friends and I am sure that we can meet her on that point. I am also most grateful to the right reverend Prelate the Bishop of Rochester for his contribution.
I listened with enormous interest to the speech of the noble Baroness, Lady Burton of Coventry. I thought that the mail order firms had really got busy behind the scenes and had organised their speakers in this House. For a moment I thought it was a pity that I had not organised a few myself. But I left it entirely to noble Lords who are interested in the Bill and I did not organise any support from any particular quarter for the Bill.
§ BARONESS BURTON OF COVENTRY
My Lords, I must interrupt the noble Baroness. I had neither organised nor sought to inspire speeches on this Bill at all.
§ BARONESS ELLIOT OF HARWOOD
My Lords, it seems to be clear that the mail order firms have done a certain amount of work by way of support. All the opposition came from those who think that the Bill will interfere with mail order firms. So far as I know, it is not going to interfere with them at all, so long as the code of practice (which the noble Baroness instituted and which clearly has had a tremendous effect) is enforced. The noble Lord, Lord Donaldson of Kingsbridge, and I know something of this and we are grateful to the noble Baroness and her organisation. I am not at all against mail order firms; nor is my honourable friend in another place who instituted the Bill nor, it seems to me in reading through the Reports of another place, is anybody else. We are against those practices against which the noble Baroness's code was directed; and the code has had the effect of improving the mail order business practice.
I am not sure that I entirely agree with what the noble Baroness said—I do not suppose that she expected me to do so. I understood her to imply that there were really few unsolicited goods sent to people, but in the course of my life I have found a great deal of evidence of tiresome and difficult cases of the sending of unsolicited goods which have been harmful to individual people. As noble Lords have said, the practice has decreased and I think that this Bill will certainly give us power to stop it.
I think my noble and learned friend the Lord Chancellor has answered the points put by my noble friend Lord Derwent, and I do not think I need say anything further about that. I do not agree with the noble Lord, Lord Jacques, that six months is too short a time to track down bills or accounts or whatever it may be. It seems to me that any business should be able to deal with matters of that kind in six months. Another noble Lord said that it used to be one month; it is now suggested that it should be six months. I think that 12 months is too long.
My noble and learned friend the Lord Chancellor also answered some of the 1497 questions put by the noble Lord, Lord Platt. I was married to a doctor for some 25 years, and I remember that, although he left the profession quite early in his life, for the remainder of his life he received unsolicited goods from the pharmaceutical industry: in fact, this went on after he died and I used to receive them.
§ LORD PLATT
My Lords, if I may interrupt for one moment, I was not including the kind of things that one gets from the pharmaceutical firms because they do not expect any payment; they are sent as samples.
§ BARONESS ELLIOT OF HARWOOD
I may have misunderstood the noble Lord. I do not think I distinguished between samples and pharmaceutical goods. But I know that they came to our house years and years after their use had become immaterial, so far as my husband was concerned, and I personally never had any use for them.
I should like to thank the noble Lord, Lord Donaldson, and the noble Viscount, Lord Hanworth, for their support of the Bill. I think they have as much experience of this subject as anyone else, and I am glad that they think the Bill is worth while. The noble Lord, Lord Redesdale, referred to mail order companies. I would only say that excellent mail order companies and the code of practice are much to be supported. Anything beyond that or less than that I should be opposed to.
I should like to thank my noble and learned friend the Lord Chancellor for his contribution, which is most helpful. I may say that I shall certainly ask for some advice from the legal department on Clause 4, and I shall he happy again to have my noble and learned friend's help. I think the debate has been most interesting, and I am grateful to all those who have taken part.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.