HL Deb 20 April 1971 vol 317 cc567-94

4.50 p.m.

BARONESS ELLIOT OF HARWOOD

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Baroness Elliot of Harwood.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ST. HELENS in the Chair.]

Clause 1 [Rights of recipient of unsolicited goods]:

THE DEPUTY CHAIRMAN OF COMMITTEES

Before calling the first Amendment, I should remind your Lordships that if this is carried I am unable to call the second Amendment.

LORD REDESDALE moved Amendment No.1: Page 1, line 17, leave out paragraph (a).

The noble Lord said: I will not weary your Lordships with a lot of arguments regarding the deletion of this paragraph, but I should like to run over some of the points I covered in Second Reading. As in Second Reading, I should declare an interest in that I am connected with a mail order company. In Second Reading I tried to put over the problem of ascertaining whether goods that had been sent out to somebody had actually been unsolicited. The two aspects which I sought to cover were, first, the hoax order and, secondly, the fraudulent order.

Let us take the hoax order first. A mail order company can receive an order which appears to be perfectly genuine: it has a signature; it has an address, and it appears to be like any other order in which somebody is genuinely interested in receiving the goods concerned. However, as we know, it has happened, un- fortunately quite often, that because somebody thinks it is funny he fills in on an order form somebody else's name —usually that of somebody prominent or of somebody against whom he has a grudge. The mail order company fulfils this order in good faith and this person, without knowing of the order, receives the goods. Such a person is naturally somewhat annoyed and feels that the company has sent out unsolicited goods. With Clause 1(2) (a) as it stands, he naturally feels that, because the goods are unsolicited, all he has to do is to sit tight and forget about them. I can, of course, understand that the person who has received the goods is irritated and considers them unsolicited, which they are. But the company who sent them out did so in good faith. That is the first aspect.

The second aspect is really more serious. This is the question of the fraudulent order. It is so very easy for two people to get together, the first to fill in the second's name so that he receives the goods. Again with Clause 1(2) (a) as it stands, all they have to do is to sit tight and the goods are theirs. This provision makes it legal for them illegally to receive the goods. The noble Lord, Lord Donaldson of Kingsbridge, made an intervention in the Second Reading debate on a very reasonable point, regarding the fact that one could make, say, three demands and then go and collect the goods. If the article concerned is something like the magazine Which? one would not bother about collecting it. If it were something expensive, say a refrigerator ordered from a store, the procedure suggested is reasonable. But if the article is in the intermediary range it is uneconomic for the firm to collect it and therefore it goes by default. The major mail order companies send out many millions of items, and if a large number of them were in fact sent as a result of hoax or fraudulent orders the companies would not be in an economic position to collect them. The points I am trying to make cover items sent out in good faith by reputable companies.

When it comes to truly unsolicited goods, as referred to by the noble Lord, Lord Platt, then of course the company must take this risk. But it is a little unfair at this stage for a company to have to bear the cost if they sent out the goods in good faith. I am mindful of the remarks of the noble and learned Lord the Lord Chancellor in putting forward a particularly controversial Amendment, and I accept the feelings of other noble Lords, especially those of the noble Baroness. I would not wish to put forward an Amendment which was so controversial that it would delay the passage of the Bill and jeopardise it. Therefore, I will not press this Amendment, but I should be grateful if the Committee would consider the points I have raised. I beg to move.

BARONESS ELLIOT OF HARWOOD

I am very interested in the speech of the noble Lord, Lord Redesdale, and the fact that he does not propose to press this Amendment to a Division. But I must repeat some of the arguments about which the sponsors of this Bill feel very strongly in regard to the Amendment he has moved, which would in effect delete Clause 1(2) (a) from the Bill. The results would be as follows. A person who received unsolicited goods would then in any event be obliged to give notice to the firm which sent them in order to divest himself of the responsibility he has regarding the goods; namely, the duty of not destroying them or throwing them away. In other words, the Amendment would result in there being imposed on the person who received unsolicited goods, irrespective of how he came to get them, an obligation to write and tell the firm which sent them, in order that he may avail himself of the benefits of Clause 1(1).

I can see no reason why this obligation should be put upon him. I do not consider that this Amendment is justified. Clause 1(2) (a) is intended to cover those cases where the recipient does nothing about the unsolicited goods. No matter how much publicity attends this Bill and the matters it deals with, there will always be exceptions among the public who have never heard of it and have no idea what to do about unsolicited goods. There will be an even greater number of people, perhaps, who will have heard of this Bill but will not know precisely what it requires, or will not fully understand the detailed provisions. Even some noble Lords may have a little difficulty in understanding the detailed requirements of what is now Clause 1 (2) (b) and Clause 1 (3). There will always be a large section of the public who, whether they understand their legal right or not, will in fact do nothing about unsolicited goods if they receive them. Many people simply do not write letters, and of those who do many have busy lives to lead and cannot always find the time and energy to sit down and write. And who can blame them? Why should anybody who has received a book, a record or something else, which he has not asked for and does not want, be expected to go the trouble of doing any-thing at all! After all, it takes a bit of effort to sit down and compose a letter, and to take a copy of it if you want to be on the safe side, not to mention the cost of postage et cetera. Thus, the purpose of Clause 1(2) (a) is to deal with the cases where the recipient of unsolicited goods does nothing. When this happens the firm is given six months to catch up with him. This is quite a reasonable period. In the Inertia Selling Bill, which passed in another place in the last Parliament, the period was four months, and we have increased it in order to make it easier for the people who have sent out the goods.

The Promoters of this Bill are not prepared to give way on the fundamental principle that a person who receives unsolicited goods should not be required to undertake either a responsibility as regards the care of the goods or a responsibility as regards taking some action such as writing a letter in order to get the goods out of the way. I am hacked up in this by the fact that the Crowther Report recently published has a whole paragraph about rights and obligations to protect the consumer against this kind of selling. The Crowther Report states very firmly that the Committee are of opinion that we should not expect people to have to write letters and draw attention to the fact that they have received unsolicited goods. We suggest it is reasonable to leave the Bill as it is. It provides a fair balance between the various situations that can arise—the cases of hoax orders and cases of mistaken delivery, either of the right goods to the wrong person or of wrong goods to the right person; and it also deals with cases of deliberately sending unsolicited goods. I am sorry, but I cannot accept the Amendment moved by the noble Lord, Lord Redesdale.

4.59 p.m.

LORD DONALDSON OF KINGS-BRIDGE

I should like to make a couple of brief points in support of the noble Baroness, Lady Elliot of Harwood. I think that we should look, as the mail order firms should look, at what the trouble is. Doubtless we should all agree that if a firm is sending "unsolicited goods" in the bare terms of that description, the goods should be treated as a free sample. One has not a right to send goods to people in the hope that they will buy them. I believe that is now the American rule; and we should get through this provision very easily were it not for the three exceptions we have been discussing. The first is mistake, the second is hoax, and the third is fraud.

As regards mistake, I do not think any noble Lord would wish to put any burden on somebody by whom a mistake is made. But we have agreed in this Bill to go a very long way. We have said that the person who suffers this error may be left with the goods for six months, and if during that time the person who makes the mistake wants to retrieve it he can send a bill at the end of the first month, a reminder at the end of the second month, a bill in red at the end of the third month, ditto fourth, ditto fifth and in the sixth month he can come and collect the goods. If they are not worth very much he will not bother, and most of these things are not worth very much.

One of the objects of this Bill is to prevent the wretched recipient from becoming liable at common law for something which the noble and learned Lord suggested is not correct. If it is not correct, that is good; but if it is correct, then if I am sent a gramophone record and I stop my child from breaking it for six months, then I think it is a necessary precaution that in the seventh month he can break it. This is a most important defence for the innocent man, sitting at home reading the newspaper, who suddenly finds himself liable for all sorts of things because a mail order firm is trying to make money out of him. I do not mind the mail order firm trying to make money out of him, or anybody else, but if it makes a mistake I do not think that the man at the receiving end should have any obligation at all.

Hoaxes seem to be covered in the same way. Of course the computer does not notice if 1,100 copies of Land of Hope and Glory are sent to No. 10, Downing Street. This cannot be helped. But I suppose at some stage or other there would be some indication or some documentation to the effect that a lot of things were going to the same address. In any case the period of six months is an absolutely adequate defence. I am not allowed to do anything until six months have elapsed; but at the end of six months, if you have not collected the article I can dispose of it. That covers the hoax.

A slightly more difficult problem is that of fraud. My noble friend Lady Elliot asks me to fill in a coupon for her because she wants a cookery book that she does not want to pay for. This is reasonable enough. I say, "Of course; anything you ask, I will do", and I send in the coupon. The cookery book goes to her. Presumably she has an attic containing little piles of books marked "Not to be opened before October 1" and "Not to be opened before November1 "; and all the way round this attic there are various goods that her friends have been sending her and which she cannot make use of for six months. Is that not a ridiculous situation? If people were to send refrigerators as unsolicited goods there would be some point in protecting the seller, but generally the goods are quite insignificant. The whole thing seems to be a ridiculous fuss about nothing, and I hope very much that the noble Baroness will not yield.

THE LORD CHANCELLOR

I do not know whether I may say just a word. As I have said, my attitude on all these questions is one of benevolent neutrality, and I will try to be as neutral and as benevolent as I can. I think my noble friend who proposed this Amendment, which up to a point ought to be discussed with his two alternatives (because they are alternatives), ought to stick to this one because I do not think the other two are really "starters". The prospect of deciding what was an unreasonable refusal to do anything about the matter is one before which the courts would legitimately tremble, and I certainly should not encourage it. Nor do I see any advantage in extending six months to twelve months. This is just playing with the problem which is really raised by the first Amendment, to which both speeches have related.

LORD REDESDALE

Will the noble Lord allow me to say that the question of extending the period of six months is not my Amendment.

THE LORD CHANCELLOR

I am so sorry; I apologise to my noble friend. I say the same thing about the Amendment, but not in relation to my noble friend. I am a little more sympathetic to my noble friend than perhaps the two other speakers have been. However, I think he must face the fact fairly and squarely that another place would almost certainly not accept the Amendment if we were to pass it, and that would virtually bid "goodbye" to the Bill. I think we must be realistic about that.

Secondly, I do not altogether go along with the noble Lord, Lord Donaldson, in saying that if a man makes a mistake and there is delivered to my house something that does not belong to me, I am really entitled to do nothing about it. It happens to most of us sometimes, I think. Certainly it has happened to me from time to time, and I am prepared to go to quite considerable trouble to see that the goods are re-delivered if there has been a genuine mistake, or that they are delivered to the right quarter if I can see what the mistake is. I think any honest man would do the same.

Equally, I am not unsympathetic to the hoax case or to the fraud case. The short answer to the fraud case is that the present law would deal with it. What my noble friend laughingly suggested as a possible arrangement between himself and Lady Elliot is certainly a conspiracy to defraud, and if it succeeded there would be damages. This would be so whether or not the Bill is passed and whether or not the Amendment is passed. That is the short answer to that problem. However, I remind my noble friend who proposed the Amendment that there is such a thing as recorded delivery and that there is such a thing as a reply paid postcard. On the whole, those who make their living by selling goods on credit in one form or another have to take the rough with the smooth. Part of the rough is that they are from time to time defrauded by their debtors. The county courts do their best to catch up with the debtors, not always very successfully; but I am afraid that mail order businesses must, up to a point, recognise that the nature of their business is such that there are occupational hazards from which they may suffer from time to time. I am not unsympathetic to my noble friend but I think he must make up his mind that if we try to press this Amendment it will be "goodbye" to the Bill.

LORD PLATT

I hope that this Amendment will not be carried, for the reasons perfectly well stated by other noble Lords and which I need not repeat. I hesitate to suggest in any way that the noble and learned Lord the Lord Chancellor may be mistaken in one of his points, but may I ask him one thing? When he talks about a mistake he says, "I do not accept that there is no obligation on me in the case of a genuine mistake to see that the goods are rightly delivered". I agree with him, but surely that is a moral obligation and not a legal one?

THE LORD CHANCELLOR

If I may say so, I was speaking only about morality; I was not suggesting that there was a legal obligation. If I gave that impression I should like to correct it at once. I was talking about what an honest man will do, and not what an honest man could be compelled to do if he did not feel quite so honest at the time.

LORD PLATT

I accept that the noble and learned Lord was only discussing a moral obligation; but the whole point is that here we are discussing a legal obligation. If I had suggested an Amendment making it a legal obligation to go round next door and deliver the letters, then I think the Amendment would be resisted. I do not think that argument would commend itself to the Committee.

VISCOUNT HANWORTH

I have a certain amount of sympathy with this Amendment, but, as so often, I think one must realise that one can seldom legislate against an abuse without also bringing about a side effect. In my opinion, here it is far more important to protect the consumer than to cause some small embarrassment to those who are employing certain trading methods which in the future they may well find they have to modify to some extent in order to overcome these slight difficulties.

Unsolicited goods have been a tremendous bane to consumers when this sort of thing has occurred. So many consumers do not in fact know their legal rights. They do not write letters easily, and, if they do get round to writing a letter, they do not know how to do it in proper legal phraseology. They certainly do not all keep copies normally, so it may be difficult to prove that they have in fact written; and, of course, as has already been pointed out, there is the difficulty of the damage to the goods. I will just quote an example of a letter we received in the Consumers' Association, which I think will remind your Lordships of the sort of thing that was going in April, 1970.

A gentleman from Scotland had some dealings with an organisation called the International Art Club, an outfit which is part of a leisure arts organisation and which advertises very widely in colour supplements and such like. This gentleman had been a subscriber to the club—for some reason it always seems to be referred to as a "club". Then in July, 1969, he wrote cancelling all further supplies, in accordance with the arrangement. They ignored his cancellation; they went on sending the goods—in this case pictures. Then in April, 1970, he received a communication entitled "Notice Before Proceedings", telling him that unless he paid what they claimed from him his account would be submitted to their solicitors for review and directions. The recipient wrote again, but still he could not get any sense out of them. All he had was a further threatening letter, this time in May, 1970, saying: "You owe us money. You do not pay. You do not answer. Appropriate action will be taken after seven days after this notice." And in the end he paid what they asked. He was intimidated, by the threats of action he had received, into paying, even though he did not owe anything. That is the sort of thing that has occurred, and there are several other examples I could quote. It seems to me that it would be the greatest mistake to weaken this Bill in any way at all.

5.23 p.m.

LORD BEAUMONT OF WHITLEY

Since the noble and learned Lord the Lord Chancellor has widened the debate a little to consider Amendment No. 3 with No. 1, I hope your Lordships will forgive me if I do the same. May I say before I start that I have the opposite of an interest to declare? I normally find myself reacting violently on the side of any consumer protection Bill and against any attempt to weaken it; but in this particular case I think that Amendment No. 3 is really the minimum reasonable Amendment to put forward. We are talking about cases—and they are the overwhelming majority of cases, I believe, in unsolicited goods—where companies send out goods in good faith and, because of mistakes or fraud, or hoax (the three possibilities we have heard about) the goods get to the wrong people. Unless you say that mail order is in itself bad, it seems to me that you must bear in mind also the perfectly ordinary rights of businesses engaged in mail order.

It seems to me that we have in this Bill to find the right path, one that will do no wrong to the customer and also do no wrong to the trading companies, most of whom, I need hardly remind your Lordships, are highly reputable companies, and presumably economically beneficial. I believe that if we do not pass Amendment No. 3, or if Amendment No. 3 is not accepted, we shall be opening the gates to fraud on a large scale. That there is not very much fraud at the moment, I entirely agree with the noble Lord, Lord Donaldson of Kingsbridge. But the fact remains that if we say these goods can become, after six months, the property of the person to whom they are sent, and if all the person has to do is to stay absolutely mum and say nothing, we shall be opening a door whereby people could mount fairly large-scale frauds for intermediate value goods. And the large-scale efforts of some companies—and there is nothing wrong with their being large-scale—mean that such a fraud would be very difficult to detect. Of course it would be punishable under the criminal law, but it would be very difficult to detect, and I think we ought to have some safeguard.

As I understand Amendment No. 3, put forward by the noble Lord, Lord Redesdale, it has been slightly misunderstood by the Committee. If that is so, I have no doubt that the noble Lord, Lord Redesdale, will consider amending the wording before Report stage. What, as I understand it, he is trying to put forward is that if at some stage the company concerned write to the person whom they have been billing without getting any answer, and say to him. "Did you or did you not order this?", then the person will be obliged to reply. At any rate, even if not obliged to reply he should not have the right, if he does not reply, to keep the goods after that time. Here I think what the noble and learned Lord said about reply paid envelopes is absolutely right, and it seems to me that most of these firms will use exactly that form. That, surely, is what is meant by "…unreasonably refuses to inform the sender "—refuses to send back a reply-paid envelope which asks if he has ordered it. It may be that the Amendment as worded would not do this. If so, an Amendment in a slightly different form could be put forward on Report stage. But it does not seem to me very much to ask that companies who are legitimately, and I believe in a worthwhile effort, trading in the mail order area should be able to ask, before they have goods appropriated at the end of six months, that customers should reply to a straight question asking whether or not they have received these goods and whether or not they had ordered them.

LORD PLATT

May I ask the noble Lord the Deputy Chairman of Committees whether we are discussing Amendment No. 3?—because if so, there is something I should like to say about it.

THE DEPUTY CHAIRMAN OF COMMITTEES

Amendment No. 3 seems to have crept into the discussion on Amendment No. 1, but at the appropriate moment Amendment No. 3 will be put from the Chair.

LORD REDESDALE

I am most grateful for all the comments that have been made on this discussion on my first Amendment, and I am also particularly grateful to the noble Lord, Lord Beaumont of Whitley, for his remarks primarily concerned with Amendment No. 3. May I say that my remarks are primarily concerned at this moment with Amendment No. 1. I take the arguments that have been put forward, I think most reasonably, by all noble Lords and Baronesses who have spoken, but I felt that the argument had rather crept round to talking about unsolicited goods sent out deliberately. My points were entirely concerned with fraudulent and hoax orders, and the problem of trying to determine whether the goods had been ordered. In spite of their being repeatedly billed (this is the very important point Lord Donaldson made), the recipients were not under any obligation to say that they had never ordered the goods in the first place.

I appreciate the noble Baroness's comment that she does not want to impose unreasonable burdens on people who receive unsolicited goods; I accept the feeling in her remark. But I am sure that, reasonably, she will also feel that people who send out goods ought to have some protection, and if in terms they then contact the customer and ask whether the goods have been ordered, they ought reasonably to receive a reply. However, that comes under Amendment No. 3. Coming back to Amendment No. 1, I accept the point. I especially took the Lord Chancellor's remarks about interfering with this Bill in such a way that it would not go through another place, and I am mindful of his warning. However, his point that there are such things as prepaid cards was one that I covered in Second Reading, and I will raise that again in Amendment No. 3. I accept the arguments put forward and therefore I will not press this Amendment.

Amendment, by leave, withdrawn.

5.22 p.m.

LORD JACQUES moved Amendment No. 2: Page 1, line 17, leave out ("six") and insert ("twelve").

The noble Lord said: While there is a good deal of evidence of pressure selling, and of giving gifts of one commodity if another one is ordered, there is very little evidence of goods that are unsolicited being sent to consumers. It is possible that the worst offenders are the charities, with their Christmas cards and similar merchandise. We have to be very careful that this Bill does not give greater opportunities for mischief than the mischief it prevents. I accept the general principle that if a consumer receives unsolicited goods he should, after a lapse of time, be in a position either to use or to dispose of those goods without giving notice to anybody. But in framing legislation to this end we must be very careful that we protect the innocent trader against fraud, hoax and mistake. I am concerned not merely with mail order but with all traders.

Take the question of fraud. As has already been said, it is quite easy for two people to agree that one shall represent himself to be the other and persuade a trader to deliver goods to the other on credit. The trader, if he takes the normal course, will first send his account and then, after a lapse of time, will normally send a reminder. After a further lapse of time he will then send a letter, and if there is still no response he will probably send a representative to visit the consumer—though in these days he will very likely find nobody at home. In due course, the trader will pass the account to his solicitor but the legal process does not commence then. It is almost universal practice for the solicitor first of all to write to the debtor and give him an opportunity to pay. So before the legal process is commenced, the six months have gone.

It is quite true that this is conspiracy, but it is very difficult to prove it because of the difficulty of identification. Thus an innocent trader, with every good reason to believe that he has a claim for payment, finds that he has no claim which can be enforced in law. Exactly the same could apply to a hoax order or to a mistake. In protecting the consumer the least we can do is to protect the innocent trader in a reasonable way. I consider that six months is completely unreasonable, particularly as there have been changes in the last ten or fifteen years in the length of credit trading. Outside of hire-purchase, the normal term of credit used to be six months, but in the last ten or fifteen years, because of the wording of statutory orders, the term is almost universally nine months, and I would plead that we should make it twelve months. This is a slight Amendment which is likely to be accepted by the other place, and it would give the innocent trader the kind of protection which previous speakers have said he requires in certain circumstances. I commend this Amendment to the House.

LORD DONALDSON OF KINGS-BRIDGE

My Lords, I hope the noble Baroness will not accede to this extension of a way out for the trader which has already been extended from four months to six months in the passage of the development of this Bill. If you make a mistake, six months is quite long enough to catch up with it, it seems to me. As the noble and learned Lord has said—and I think he is right—in nine cases out of ten if a mistake is made to an honest man (and let us assume that we are 90 per cent. honest), the trader will get it back anyway. People do behave in a perfectly ordinary way, so a mistake is not the most serious risk that a trader faces. The most serious risk is hoax or fraud. In the case of hoax, if you invite business in this way you must, as the noble and learned Lord has said, take the risk it carries. If you are a supermarket with self-service you have higher losses and lower expenses than if you are a service store.

It seems to me that if we were saying, as we wanted to say originally, that three weeks is enough, the noble Lord would have a case. But we have gone up to four months, and from four months to six months, and I cannot see any reason for going further. If the organisation is such that it cannot get in touch within six months I do not think it will be any more likely to do so in twelve months. I think the noble Baroness should resist this Amendment as a weakening of the Bill and one that might have an ill-effect in its return to another place.

BARONESS ELLIOT OF HARWOOD

I have listened to the discussion on the Amendment moved by the noble Lord, Lord Jacques, with great interest. If I were a trader and I had not managed to find out in six months whether the order was a hoax or was genuine I should be a very inefficient trader. I imagine that most traders receive payment long before that if the orders are genuine, but if they are hoax or unsolicited orders they do not want to give them any more than six months. It seems to me that six months is a generous allocation of time.

In some of the correspondence I received about this Bill people were urging that three weeks, a month or six weeks was sufficient time in order to catch these wrongdoers, and I know from the discussion in another place and in the Committee that a period of four months was originally suggested and finally it was agreed to be six months. I am perfectly certain that the sponsors of the Bill in the other place would never accept an extension to twelve months for these operations to take place. That seems to me much too long, and I cannot see why any good and efficient business should not be able to get their payment, if it is a genuine order, in six months. If it is a hoax order surely a firm must be able to find out in six months, which is quite a long time. I am afraid that the noble Lord must take it that I will not accept this Amendment. I know that the sponsors of the Bill in another place would not accept it either. I think it would be wrong to alter the period of six months to any longer, period at all.

THE LORD CHANCELLOR

I am not quite so neutral about this Amendment as I was about the first one, because I think that ultimately the Committee has to make up its mind whether it accepts the principle of the Bill. I do not believe that twelve months is really compatible, in realistic terms, with the principle of the Bill. What you are really doing is to say that somewhere, in some small house in a line of cottages or houses in a working class district, an article of some value has to be kept for as long as a year undamaged before the occupier can treat it as his own. I can quite see that there are people who say that he ought to send it back at once, or ought never to treat as his own what does not belong to him. But if you are going to accept the principle of the Bill, it seems to me utterly unrealistic to imagine the situation in which people would keep these goods undamaged and unused in a working class house for twelve months without anything happening to them. It may be all right in theory or in law, but it does not seem to me to have any reality.

The only other thing I would say to the noble Lord who proposed the Amendment is that I think he underestimates the efficiency of the county courts. If the facts of a case are that a mail order firm receives an order relating to a real address, can prove delivery to it and a sequence of six bills unanswered and unpaid over the period of two or three months, difficulty in getting into contact with the occupier but ultimately serving him with process, and the occupier comes along and says, "I never ordered the goods", it may be that the county court judge would have wit enough to disbelieve him, especially if he were in fact in bad faith. I do not think that one should always assume that judges are fools.

LORD REDESDALE

I have listened to the argument of Lord Jacques with great sympathy. However, I feel that if notice is in fact obtainable that the goods were not ordered, then it does not really make much difference whether the period is one of six of 12 months. I think six months could be a reasonable time, provided you are able to determine that you have had some response from the recipient of the goods. I cannot support the noble Lord on this partcular point. I have sympathy with the noble Baroness, provided, of course, that you get some response from the recipient of the goods. I am afraid, therefore, I cannot support this Amendment.

LORD JACQUES

I am quite unrepentant, but I think more of my head than to put it up against a stone wall. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.33 p.m.

LORD REDESDALE moved Amendment No. 3: Page 2, line 12, at end insert— (5) Nothing in this section shall apply to any recipient who unreasonably refuses to inform the sender that he has not solicited the goods.

The noble Lord said: I beg to move Amendment No. 3. Some of the points have already been covered by the noble Lord, Lord Beaumont of Whitley, and also by the noble and learned Lord the Lord Chancellor. Despite the remarks of the noble and learned Lord the Lord Chancellor, on this particular point I am rather more adamant in moving the Amendment. I have already covered the points regarding hoax and fraudulent orders, and I will certainly not weary your Lordships again after such a short period of time.

If Clause 1(2)(a) had been deleted, then the recipient would have had to reply. As I tried to say, I wished to be as reasonable as I possibly could; therefore I did not press that particular Amendment. However, I feel that it is not unreasonable after, say, the second or third request to recipients of goods they not having replied, to ask whether they have ordered the goods. If a recipient then replies by the prepaid reply card—which the noble and learned Lord the Lord Chancellor has already covered, and which I covered on Second Reading—then I feel it would not be unreasonable to ask that this be filled in so that, for instance, prepaid reply labels could be sent to the recipient of the goods.

I wish on this point to appear all the way along as reasonable as possible, and I am putting forward this Amendment because I feel that it could be acceptable to another place without holding up or endangering the Bill. Therefore, I should like noble Lords to consider this Amendment very closely. I feel that it is a reasonable Amendment, and that we are not asking for an unreasonable effort on the part of recipients of goods should they not yet have replied. As it stands at the moment, they have no need to reply at all. All I am asking is that at this stage they should reply or, as I have put it, not unreasonably refuse to reply.

I appreciate that I have used the word "unreasonable" many times, and I have a slight worry that perhaps the use of the word "unreasonable" in this Amendment may not meet with the approval of some noble and learned Lords. However, I have seen the word "unreasonable" used a great many times lately in legislation, and therefore I feel that I am not pushing my luck too far in using it on this occasion but that I am acting reasonably. Therefore, I should like to ask your Lordships to consider this point, and to support my Amendment.

LORD DONALDSON OF KINGS-BRIDGE

My first reaction to this Amendment is that it really is, in a sense, creating a crime where the law, as it stands, covers the situation. It seems to me that if you are sent an expensive book and somebody rings you up and says, "Have you had the book, because we think it may have been sent by mistake?" and you refuse to reply, this is clearly fraudulent. I should have thought that the noble and learned Lord really covered this point in his suggestion about the county courts, and that if somebody is resisting the truth the law is usually able to deal with this.

If we are to have something of this kind, I think it would have to be very much more clearly defined. I do not think that one is obliged to reply to a bill for something one has not ordered or knows nothing about, nor do I think that one is obliged to send back a reply paid postcard. I do think one is obliged to answer a telephone, or to answer the door. I think that these are quite different things. I stand absolutely on the right of the private individual to be left alone; and if people want to sell—and I am all in favour of high-pressure selling—they take certain risks with it. There seems to me to be a very small risk involved. I know that the mail order people do not think so; but I believe it to be so, and I should be very sorry to see the Bill weakened in this way. I believe—and the noble and learned Lord will no doubt reassure us—that the law, as it stands now, will go most of the way to cover this point.

LORD BEAUMONT OF WHITLEY

May I ask how the noble Lord defends the theory that there is an obligation to answer the phone, and an obligation to answer the door, but that there is not an obligation to send back a reply paid postcard, particularly when he says that he stands for the right of the person to be left alone? He is left far more alone by a reply paid postcard than by a telephone call, or a personal call.

LORD DONALDSON OF KINGS-BRIDGE

Clearly this is a philosophical point. It seems to me that to answer a telephone means that you are already in communication with somebody, and by opening the door you are already in communication with somebody. But if you receive a paper through the post you are not obliged to read it; and very often I do not.

BARONESS ELLIOT OF HARWOOD

I have listened to the speech of the noble Lord, Lord Redesdale, and I am afraid I am quite unconvinced by his remarks. I do not understand how it is that mail order firms—and the noble Lord is clearly speaking for them—do not know where they send their goods. If they are rash enough to send them anywhere, they must surely have some record of where they go.

LORD REDESDALE

If the noble Baroness will give way, may I say that it is not a question of where they have been sent, but of whether or not they have been ordered by a particular person. That is a totally different situation from the one the noble Baroness is describing.

BARONESS ELLIOT OF HARWOOD

Yes, I quite agree. But the firms must surely know. If somebody orders something from a shop or from any other establishment, there must be some record of the fact that it has been ordered. But I am talking about goods that have not been ordered and I can see no reason why, if they descend on an unsuspecting person, that person should pay any attention at all to them. That seems to be the whole point of the Bill.

LORD REDESDALE

I am sorry to interrupt again. The point is that if a company has an order with a signature on it, it has every reason to believe that those goods have been ordered. That is the argument that I am making. It is not the argument which the noble Baroness is putting forward; it is different.

BARONESS ELLIOT OF HARWOOD

As I understand the Amendment, it would mean that anybody who unreasonably refused to inform a sender would be prosecuted. But I do not see why a sender should expect to have any reply in respect of goods which have not been solicited or ordered. Therefore I cannot see that the Amendment would help in any way at all; it would simply weaken the Bill. I want to make the Bill as strong as possible, to help a person who is pestered by people who send goods which are not wanted. Admittedly it does not happen very often—it happens less since the Bill has been through another place; I hope very much that the Bill will pass through your Lordships' House—and people are getting much more tactful and nervous than they were before. But information was given in Committee in another place about certain firms—and I have the names of one or two firms with me.

The real point is that we want to be quite sure that this Bill will stop this disagreeable and bad practice, which the reputable mail order firms certainly want to stop. The reputable firms will not be at all indisposed by the Bill. The ones who will be caught will be those who are trying to "pull a fast one" on unsuspecting recipients of goods. It would be a great mistake to weaken the Bill in any way, and if the noble Lord chooses to press the Amendment I will oppose it.

LORD PLATT

I should like to support very strongly what has been said, and would remind the Committee of what the noble and learned Lord the Lord Chancellor has recently said to us. The Committee have to make up their minds whether they accept the principle of this Bill. It seems to me that many of the arguments are much more concerned with protecting the mail order business, which I quite agree is a perfectly reputable business in the hands of most of the people who are running such firms, than with trying to stop this pernicious practice of dumping goods on a person and then trying to make him pay for them.

In answer to the noble Lord, Lord Beaumont of Whitley, I would say that there is a considerable difference between not replying to somebody who asks a question on the telephone and not getting out a pen—which some people do not even possess—reading a document which you do not understand, and trying to fill up a postcard which you also do not understand. I am sure that, like me, the noble Lord, Lord Beaumont, must know of quite a large number of old ladies who live alone and who absolutely dread all these forms and the things that they have to do. There is no difficulty at all for us in filling up a reply-paid postcard—though there is nothing in the Bill that says that it has to be a reply-paid postcard—and posting it, but to many people there is quite a lot of difficulty. I hope that we shall not weaken the Bill by passing this Amendment.

THE LORD CHANCELLOR

May I again say a word or two, because I think I ought to utter a caution about some of the remarks that have been made. I am afraid that, in a rather disorderly fashion, I said that I did not think that this Amendment was a "starter". That is still my approach to it, because I do not know how the courts would set about deciding whether a mere omission to answer a letter amounted to a refusal, and, if it did amount to a refusal, on what principles the courts could be expected to decide whether the refusal was reasonable or unreasonable. If noble Lords in this Chamber cannot decide that unanimously, as from the discussion which has taken place they obviously cannot, it seems to me rather difficult to ask a county court judge to do it "by his own certain knowledge and mere motion", as they say at the beginning of a Parliament. Therefore, I do not think that this Amendment is a "starter".

But I should like to utter a word or two of caution about what has fallen from some noble Lords who are opposed to the Amendment. In the first place again I do not agree with the morals of the noble Lord, Lord Donaldson of Kingsbridge. I think they are most immoral. May I tell the Committee—I hope that I shall not embarrass the gentleman, because it affects someone other than myself—that, as your Lordships know, I have the unusual name "Ouintin Hogg", under which I have lived for a great part of my life. Curiously enough, there is somebody, either remotely related to me or not related at all—I am not quite sure which—with exactly the same name, except that he spells his name with an "e" instead of an "i". He patronises many of the same tradesmen, and his wife patronises many of the same tradesmen as my wife. So it is not at all uncommon for me to receive bills for goods which I have never ordered.

This was done without any kind of malpractice on the part of the tradesmen, who simply did not believe that there were two people of the same name. Indeed, I used to get the lady's mail and she used to get mine for many years until I ceased to use the name. It never occurred, I think, either to her or to me, not to put things right. It would have been highly immoral on our part not to tell the tradesmen that they had made a mistake, or not to send on the mail which they had sent to the wrong address. I simply do not understand the noble Lord, Lord Donaldson, who seems to say that there is no obligation of any kind to behave like a decent person.

LORD DONALDSON OF KINGS-BRIDGE

May I reassure the noble and learned Lord that I have a namesake in a very distinguished and learned position, Mr. Justice Donaldson, and he and I have actually exchanged share certificates. What I am against is putting an obligation on somebody. The noble and learned Lord, Lord Devlin, has written a book about it, which was replied to by Mr. Herbert Hart. I am against involving morals in the simplicity of the law. If there is a duty, it should be an absolutely simple one and not a moral one, as I think the noble and learned Lord will agree.

THE LORD CHANCELLOR

I think that I disagree with the noble Lord's jurisprudence almost as much as I disagree with his morals, but it would take me a long time to explain why. So may I merely tell him why I thought it right to interpose that word of warning. The reason was closely related to what I said in answer to the previous Amendment. If, by any chance, a perfectly innocent recipient of bills for goods he has not ordered, and perhaps has not received, chooses' to ignore the correspondence from a firm which thinks he has ordered them and for which it has billed him often enough, especially if a reply-paid form accompanies the bill, asking, "Have you ordered the goods and did you get them?" the chances are that the court will infer that the recipient is telling lies when he goes into court later and says that he never ordered them.

The advice which the noble Lord, Lord Donaldson, gives, although it may be perfectly in accordance with the letter of a theoretical law, will not have very much sympathy in the county court. So I would advise your Lordships not to agree with the noble Lord's morals or jurisprudence, or to take his legal advice. You would be very ill-advised not to reply to letters of that kind. One of the reasons why I think that my noble friend Lord Redesdale is complaining too vigorously about the resistance to the Amendment is because to some extent it is unnecessary.

VISCOUNT HANWORTH

There are two points here. This Amendment undobutedly weakens the Bill. If one postulates some very unscrupulous firm which may grow up, it is perfectly possible to imagine that a recipient of goods will not keep a copy of his reply—it is very likely that he will not do so when, usually, people do not have typewriters—and the firm will simply deny that they have ever received a reply. The position of the person who received the goods would be very materially weakened. I would again emphasise that this is a case of caveat vendor. It is really up to the firm to assess the risks it is running, and to take reasonable ones, but not to complain if it does not know where its goods have gone.

LORD REDESDALE

I am most grateful for the comments which have been made, but, although I have been accused of overstating the case, I tried to put it as reasonably as possible. I fail to understand why it is too much of a burden for somebody, if he has received, say, three requests, to fill in a reply-paid card which could go out with the goods right at the beginning. Surely it is no great problem just to put a tick to say, "I did not order these goods; would you please collect them?" think that is a reasonable request, and I am afraid I wish to press this Amendment.

On Question, Amendment negatived.

Clause 1 agreed to.

Clause 2 agreed to.

Clause 3 [Directory entries]:

5.51 p.m.

LORD MOUNTEVANS moved Amendment No. 4: Leave out Clause 3 and insert the following new clause—

Directory entries

"3.—(1) A person shall not be liable to make any payment, and shall be entitled to recover any payment made by him, by way of charge for including or arranging for the inclusion in a directory of an entry relating to that person or his trade or business, unless—
  1. (a) there has been signed by him or with his authority a note complying with this section of his agreement to the charge, and, before the note was signed, a copy of it was supplied, for retention by him, to him or to a person acting with his authority; or
  2. (b) there has been signed by him or by a person acting with his authority an order for the entry given on his or such person's own order form or letter heading.
(2) A person shall be guilty of an offence punishable on summary conviction with a fine not exceeding £400 if, in a case where a note of agreement to a charge or an order is required by subsection (1) above, he demands payment, or asserts a present or prospective right to payment, of the charge or any part of it, without knowing or having reasonable cause to believe that a note of agreement or order in conformity with subsection (1) above has been duly signed."

The noble Lord said: This Bill deals with unsolicited goods and services, in this clause relating particularly to directory entries. While welcoming this provision to curtail the activities of the publishers of dubious trade directories, I am sure it was never the intention that it should apply to those cases where of their own volition persons place orders with an established and reputable directory. Clause 3(1) as drafted would, however, seem to place the bona fide publisher in the position of being unable to accept an order given to him by an advertiser unless he then sent to that advertiser a note of agreement for him to sign and return. Clearly, this would not only be nonsensical but would involve both publisher and advertiser in additional bother and unnecessary cost.

It is often the practice of advertisers, either themselves or through their advertising agency, to send publishers an order on their own order form or letter heading for an entry or display advertisement in their directories, specifying the particular requirements. Indeed, in many cases the larger advertisers and advertising agencies will recognise only orders given on their own official order forms. In such cases, no note of agreement, as is required under the Bill, would have been signed. The logical process would be for the publisher to acknowledge the order and to proceed to fulfil it. However, under subsections (1) and (2) of Clause 3 of the Bill as they now stand, and in the absence of a signed note of agreement, it would seem that the advertiser may be able to avoid payment in respect of the order he had placed with the publisher, and that the publisher himself would become liable to a fine if he rendered an account in respect of the order which he had received. It seems that the position could be met by a simple amendment to this clause, which would exclude orders placed by an advertiser or his agent given on their own order form or letter heading, without in any way weakening the provisions of the Bill or detracting from its intentions. I beg to move.

BARONESS ELLIOT OF HARWOOD

The Amendment printed on the Marshalled List says, Leave out Clause 3 and insert the following new clause … Then it sets out two subsections, (1) and (2), but omits subsections (3) and (4), which are essential to the Bill and which appear in Clause 3 of the Bill as at present drafted. I would therefore say to the noble Lord that I cannot accept the form in which the Amendment appears on the Marshalled List, because I cannot agree to omit subsections (3) and (4) as well as accepting an amendment to Clause 3, subsections (1) and (2).

On the question of subsections (1) and (2), I agree that there are difficulties in connection with trying to stop those people who produce or pretend to produce directories which are in fact entirely bogus. It is very important that the Bill should definitely deal with such people. As I think I said during the Second Reading debate, the amount of money involved is quite considerable. The hoax directory people are estimated to obtain something in the region of £1 million a year from unsuspecting people, the whole thing being completely bogus from start to finish. Therefore, we want very much to be able to deal with those people. On the other hand, it is perfectly true that there are a number of well-known directories. I can think, for instance, of Kelly's Directory, and there are others of which we all know. In fact I have only to-day received a letter from the publishers of a law list, obviously an extremely reputable firm, who ask that there should be some amendment which would enable these perfectly legitimate and honest-to-God directory publishers not to be burdened with having to do what is suggested in subsections (3) and (4).

I should therefore be quite prepared to look at this clause again to try to find words which would enable those directories which are entirely reputable, and to which many of us subscribe, to be exempted from the stringent methods by which we want to try to catch the hoax directories. But it has been pointed out to me that, in subsection (1)(b) of the Amendment moved by the noble Lord, Lord Mountevans, the words, an order for the entry given on his or such person's own order form or letter heading". may be very difficult to interpret in law. What in fact is" his …own order form"? Could it be a form simply typed? Could it be a piece of paper with a letter heading simply typed on it? It may be entirely bogus under those circumstances. One knows, of course, the letter headings of well-known firms which are registered as companies. Should there be some wording of some kind in paragraph (b) which would define in some way, or make more clear, what the words "own order form or letter heading" really mean, so that if in fact people were using bogus or hoax letter headings one would be able to identify them?

I will look at this clause again and discuss with the noble Lord the possibility of re-drafting those sections of it which enable the perfectly reputable directories to be recognised, and of finding some form of words which would enable us to alter the Bill in order to bring in that for which the noble Lord's Amendment is asking; namely, that the real, honest-to-God directories should not be penalised in the work they do, which is very valuable work for the whole community.

LORD PLATT

I do not quite understand this Amendment. It may be that I am particularly stupid about it, or it may be that other noble Lords do not understand it, either. It seems to me that in paragraph (b) of the Amendment there is no reference at all to the person having to agree to payment; he has only to order the directory entry. Luckily, I am not confronted with this difficult situation of people wanting to put my name in a directory and wanting to charge me for it. But is it not the case that they write to you and that you answer saying, "Put my name in"; then suddenly they charge you ten guineas for it? How does subsection (b) cope with that situation?

THE LORD CHANCELLOR

Perhaps I could be helpful. I do not think that the noble Lord, Lord Platt, is entirely on to the particular evil which my noble friend is concerned to combat. The truth about the directories that my noble friend is attacking is that they do not exist at all—that is the essence of the matter. Somebody asks you to have your name put in the directory. Often they come round to see you because they do not very much like to have an address. The fact is that they get money for the entry in the directory but no directory ever appears. That is why I said on Second Reading that it is in any case illegal. This is really a safeguard, to catch them perhaps in advance.

The Amendment clearly will not do, for the reason that my noble friend has given. Paragraph (a) talks about, "a note complying with this section", and when you look to see what the note complies with you do not find anything. So that is that. I suggest that my noble friend who proposed the Amendment should get in touch with my noble friend who is sponsoring the Bill; and that both should get in touch with the Department of Trade and Industry so that something agreeable could be finalised before Report stage. I think that that is the best way of solving this conundrum.

LORD MOUNTEVANS

I am grateful to my noble and learned friend for his remarks and also for those of my noble friend Lady Elliot. I am quite sure that the appropriate course would be to improve the drafting. In view of this and of the undertaking given by my noble friend Lady Elliot to look into the matter again, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4 [Unsolicited publications]:

BARONESS ELLIOT OF HARWOOD moved Amendment No. 5: Page 3, line 31, after ("illustrates") insert ("human").

The noble Baroness said: Your Lordships will remember that on the Second Reading we had a discussion on Clause 4 and I drew attention to the fact that its drafting was not satisfactory. Undoubtedly there are many difficulties about it. Since the Second Reading debate I have been in touch with various People and they have made suggestions which are incorporated in Amendments Nos. 5 and 6 which stand in my name. My attention was drawn to the fact that in the agricultural industry, and particularly in the dairy industry, it is very important that there should be no interference with artificial insemination and techniques of that kind dealing with animals. It has been suggested that if the word "human" were inserted, this would exclude the animal world.

The question then arises as to how we can limit such prosecutions as there might be in connection with advertising by associations such as marriage guidance councils, family planning associa- tions; with matters such as the supplement published by Which? on contraception; chemists who have bona fide information which they wish to circulate; medical information which is entirely bona fide and which people would want to know. These should be allowed under the Bill. What we want to stop is the undesirable dissemination of pornographic literature through a wide-ranging mailing list. This material is posted indiscriminately and is the real cause of the anxiety.

It has been suggested that the way to do this is to say:

"A prosecution for an offence under this section shall not, in England and Wales, be instituted except by, or with the consent of, the Director of Public Prosecutions".

In other words, it would be impossible for people in any of the organisations I have mentioned to be prosecuted for using a legitimate method of giving information which is really wanted on this subject; and that anybody who tries to make a prosecution—which would be a frivolous prosecution—would be unable to do so, because, clearly, the Director of Public Prosecutions would not allow this to take place.

I hope that the Amendment as redrafted safeguard the legitimate organisations and yet will stop the dissemination of very undesirable advertisements or literature that has been going on in the past. Therefore, I hope that the Committee will accept these two Amendments as being the best method of dealing with this particular difficulty. I beg to move.

On Question, Amendment agreed to.

BARONESS ELLIOT OF HARWOOD

I beg to move Amendment No. 6 formally.

Amendment moved— Page 3, line 35, at end insert— (3) A prosecution for an offence under this section shall not, in England and Wales, be instituted except by, or with the consent of, the Director of Public Prosecutions."—(Baroness Elliot of Harwood.)

On Question, Amendment agreed to.

Clause 4, as amended, agreed to.

Remaining clauses agreed to.

House resumed: Bill reported with the Amendments.