§ 3.36 p.m.
§ THE MINISTER WITHOUT PORTFOLIO (LORD DRUMALBYN)
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.—(Lord Drumalbyn.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF LISTOWEL in the Chair.]
§ Clause 1 [Director General of Fair Trading]:
LORD AIREDALE moved Amendment No. 1:
Page 1, line 8, leave out ("Director General of Fair Trading (in this Act referred to as "the Director")") and insert ("Fair Trading Commissioner (in this Act hereinafter referred to as "the Commissioner")").
§ The noble Lord said: A few years ago, we began a movement to help the ordinary citizen in his dealings with large organisations because it was realised that there is no longer any equality of bargaining power between the ordinary citizen on the one hand and the big organisations on the other. The first milestone was the establishment of the Ombudsman or Parliamentary Commissioner. Then we had the Health Service Commissioner, and then we had the Report of the Crowther Committee on Consumer Credit which recommended the establishment of a Consumer Credit Commissioner. These gentlemen were all championing the cause of the ordinary citizen in his dealings with vast organisations. Now, in this Bill we have a "fair trading gentleman"—I will call 1473 him that for the moment, to use a neutral term—who is to operate in his field and do the same kind of work as the other commissioners are doing. I should have thought there was a great deal to be said for calling all these gentlemen by the same name, so that when the word "Commissioner" is mentioned people would realise that they are a body of officials championing the cause of the ordinary citizen, each in his own particular field. That is why I have put down this Amendment to leave out the term "Director General of Fair Trading" and to insert "Fair Trading Commissioner". I do not know whether it is only me who thinks so, but is not there a slightly Gilbertian flavour about the expression, "Director General of Fair Trading"? Is it not perhaps a little grandiose? I was very grateful to the noble Lord, Lord Nathan, who supported me during the Second Reading debate, and I hope that I shall receive further support this afternoon.
§ LORD DONALDSON OF KINGSBRIDGE
I should like to support this Amendment. It seems to me that a "Director General of Fair Trading" would be in rather a weak position if the trading becomes unfair, because there is no suggestion that he would have anything to do with it. I think that the nomenclature is unfortunate, as the whole point of having a "Director General of Fair Trading" is to see that the trading is fair, and I think that "Commissioner" is a far more useful word.
§ LORD DRUMALBYN
There are, of course, any number of names which could have been proposed, and a great many names were looked at when we were devising this new and completely novel office, one which is different from any other office that exists. The noble Lord says that there would be something to be said for calling by the same name everybody who has anything to do with the protection of the consumer. That may be so, but it has to be remembered that the Director General has a number of duties under this Bill. He is dealing with fair trading in many aspects. He is dealing with it in the aspect of mergers, monopolies and restrictive practices, as well as in consumer practices, in the protection of the consumer.
I am not going to enter into any consideration of semantics here, but I can 1474 assure the noble Lord that this question has been extremely carefully considered. After all, "Commissioner" has a number of connotations. We have the Commissioners who sit on the Monopolies Commission. We thought it was probably better to distinguish them from the Director General because their functions are to some extent bound up together. I suppose one might say also that it is a good thing to distinguish the Director General of Fair Trading from the Commissioner of Police. I think one could base a strong case on such semantics. I can only say to the noble Lord that whoever advocated what he is suggesting, I do not think it is worth while, or representative of a crucial point of great concern to the consumer one way or the other, whether he is called the Director General or the Commissioner. "Commissioner" may sound a bit cosier; I am not sure. The Director General is someone who really will have to take action. In choosing the name Director General, we mean to give the intention of action here. I hope that the noble Lord will feel able to withdraw the Amendment.
§ LORD TANLAW
Before the noble Lord sits down, is he able to say that he will be called the "Director General of Fair Trading" and not the "D.G.F.T."? This is a practice among civil servants, and of course it is a shorter term. Can the noble Lord give an undertaking that the Director General will not be called the D.G.F.T.?
§ LORD DRUMALBYN
People are not always known by the names by which they are baptised. It is not for me to say what the Director General will come to be called in due course. I should have thought that we might well refer to him as the "D.G.", as we shall be referring to him a great deal. For my part, I promise not to call him the D.G.F.T.
§ LORD DONALDSON OF KINGSBRIDGE
Before the noble Lord sits down, may I say that I agree with him that this is not a matter of great importance. On the other hand, I think one should never allow loose arguments to pass, and the argument that a man should not be called a commissioner because he might be confused with the Commissioner of Police, and yet he could be called 1475 Director General when he might be confused with the Director General of the Royal Opera House, does not seem to me to be particularly cogent. I do not wish to ask for a better argument, because it is a question of taste, but I must say that that argument does not appeal to me.
§ LORD DRUMALBYN
It was not the argument that I put forward. I said that it was desirable not to confuse the Director General with a Commissioner sitting on the Monopolies Commission. I said it was a good thing to distinguish him clearly from the Commissioner of Police.
§ LORD AIREDALE
I should not wish to divide the Committee on a mere matter of nomenclature.A rose by any other name would smell as sweet.I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 1 agreed to.
§ Schedule 1 [Director General of Fair Trading]:
§ THE PARLIAMENTARY UNDER-SECRETARY OF STATE, DEPARTMENT OF TRADE AND INDUSTRY (THE EARL OF LIMERICK) moved Amendment No. 2:
Page 101, line 34, at end insert—
(". Anything authorised or required by or under this Act or any other enactment to be done by the Director, other than the making of a statutory instrument, may be done by any member of the staff of the Director who is authorised generally or specifically in that behalf in writing by the Director.")
§ The noble Earl said: This Amendment empowers the Director to delegate his functions, in writing, to his staff. The purpose is to remove any possible doubt about the Director's power to delegate the discharge of his statutory duties. At this stage of course I cannot be precise about the extent to which the Director may wish to delegate his functions. Clearly, however, much of his work will be of a character to be handled by his staff—for example, sending out notices seeking information about the existence of monopoly situations under Clause 44. It would be unrealistic to assume that the Director will be able to deal with such matters himself. There may also be occasions when matters of greater moment cannot be dealt with by the Director personally, 1476 for example, when he is on leave or ill. Because it is impossible to anticipate the circumstances in which the Director will find it necessary to delegate, there is only one limit on his power to do so. He may delegate any of his functions, including any of the functions he takes over from the Registrar of Restrictive Trading Agreements, with the single exception of the Registrar's power (under Section 19 of the Restrictive Trade Practices Act 1956) to make regulations about registration, a function which we feel must properly be reserved to the Director himself. I beg to move.
§ LORD DIAMOND
I will only delay the Committee for one moment. I just express my surprise that it is necessary to provide by Statute who is going to run the shop while the Director is ill or is on leave. Presumably, the noble Lord is satisfied that we must have statutory provision for this.
§ THE EARL OF LIMERICK
I used the words "the removal of doubt". That is the situation. I cannot be completely satisfied, that this provision is not necessary, and to remove all doubt it seems advisable to insert it in the Bill.
§ BARONESS PHILLIPS
I must say that I, too, find this rather fascinating. One constantly finds this in Bills nowadays. How else would the Director delegate his powers except "in writing"? We have Parsons' Days when I think we do it all orally. The explanation that is given seems quite like Alice in Wonderland, although I would not question it.
§ On Question, Amendment agreed to.
§ Schedule 1, as amended, agreed to.
§ Clause 2 [General functions of Director]:
§ 3.48 p.m.
LORD DIAMOND moved Amendment No. 3:
Page 2, line 30, leave out ("economic interests") and insert ("interests (whether they are economic interests or interests with respect to health, safety or other matters)").
§ The noble Lord said: I beg to move Amendment No. 3, and it might be for the convenience of the Committee if together with it we discussed the following Amendment, because if the first Amendment is accepted there is no need to consider the second one. The situation, put 1477 in a nutshell, is that, as the Bill is drawn at present, the Director has two duties: an active duty—that is to say, he has to keep under review—on practices affecting consumers' economic interests, and he has what I might call a passive duty—that is to say, a duty to receive evidence—on matters and practices affecting economic interests, health and safety. The main purpose of the Amendment is to include those important aspects within the Director's active interest, activities and responsibility. That is why, if this Amendment were accepted, the second Amendment which deals with paragraph (b) would be unnecessary—indeed, the whole of paragraph (b) would be unnecessary.
I find it difficult to understand why the Bill is drawn in such a way that the Director is shackled in this manner. Nobody can doubt but that health matters and safety matters are important: indeed, they are in the Bill at the moment. They are there in a way which says that the Director cannot take active steps about them. That is the essence of the matter and the part that I have been unable to understand. I should have thought that in setting up this most important, wide-ranging office one should give the Director the necessary delegation for him to decide on his priorities, and not restrict him from the start in this fashion. I should have thought therefore that one would not want to limit him in the way this clause does at the moment. I should have thought that the Government do not want to give the wrong impression, that they do not regard health and safety matters as important—because ads the Bill is drawn at the moment those matters seem to be down-graded. I should like to put to the Government the view that consumer protection has suffered hitherto through those who are responsible for it being unduly fragmented. Now that we are having a Bill—a good Bill—to set up a Director and give him the necessary powers, I should have thought it would be right for all these powers to be placed in his responsible hands. I beg to move.
§ LORD SAINSBURY
I should like to support my noble friend. In the other place it was argued that the Government already have powers under the Consumer Protection Act, 1961, to take action about unsafe goods. As noble Lords will be 1478 aware, this enables the Home Office to introduce safety standards for specific products. A little research reveals that during the last 12 years action has only been taken in respect of eight products. I will not weary your Lordships by enumerating them, but I suggest that this power has not been used actively enough and that with the setting up of a Ministry of Consumer Affairs it is logical to bring these matters under the Director.
§ VISCOUNT HANWORTH
I too support this Amendment. I feel it is of some importance to consumers, because health and safety are really of more concern than regulations and so on concerned with malpractices and over-charging. I fancy the Minister is going to tell us, first of all, that he feels this would put too great a burden on the Director General and that it is possible to deal with it in other ways. One does not feel that the Director General need go "flat out" on these topics. Nevertheless, what is needed is more co-operation than we have at present. They are now dealt with by more than one Ministry and, as the noble Lord, Lord Sainsbury, has just pointed out, the action that has been taken over the last few years is very far indeed from being impressive. I should also like to support what the noble Lord, Lord Diamond, said. We do not want to fetter the Director-General. Why not allow him to do what he can in this area? It is a co-ordination function, a function of obtaining information. At the moment all he can do is to receive and collate. Many of us will be a little sceptical about what Ministers seem to know about things which everybody else knows, when it comes to being questioned on the facts. One certainly very much doubts, even with the best will in the world, that they have many facilities for research. Therefore, for all these reasons, I feel this Amendment is important and I hope that, if necessary it will be pressed to a Division.
§ BARONESS ELLIOT OF HARWOOD
I should like to add one word about this, as well, because in the years of my chairmanship of the Consumer Council I well remember we had a number of points raised on the subject of safety. I have here a list of some things which were included and about which the Consumer Council managed to get action taken: 1479 fireguards, oil heaters, nightdresses, carrycots, toys and electrical appliances. We were urged very strongly on behalf of the consumer to get all these items dealt with by means of special marks and in various other ways, so as to protect the consumer. I think it would be a great mistake if, now that we are being given greater powers than ever before to protect the consumer, this particular matter were to be left out of this admirable Bill. If the Minister assures us that this particular aspect can be taken care of in the Bill as it stands, without putting in this Amendment, I am prepared to believe him; but I stress very strongly the great importance of safety. Health and safety matters came up before the Council a great many times, and I feel we must be quite sure that these matters are taken care of and that the Director General has power to help and protect the consumer in this new Bill.
§ BARONESS PHILLIPS
I should also like to come in on this one, because of its long history when I was concerned with the British Standards Institution. We fought the fight to get the safety standards not only given for the articles that the noble Baroness, Lady Elliot, has mentioned, but even extended to others. As noble Lords will know, under the Consumer Protection Act—and I feel that perhaps the Minister is going to say this—certain things are required to be marked because these standards in fact are not only voluntary but mandatory. Nevertheless, there is no requirement that articles which do comply should be marked, and therefore it is difficult for the consumer and retailer to know whether a particular product in fact complies with the standards.
The enforcement, as we know, lies with the local authorities, but not the same importance is placed on some of the dangerous articles on sale at the present time. In spite of the fact that under this Bill the Director will have power to receive and collect information, he will not in fact be able to deal with some of the terrible situations which were described so powerfully by a Member in another place. She gave some harrowing stories, which the women's organisations will know of, of small children drinking fluids containing chemicals. In many cases children have been killed, 1480 and in other cases have suffered intense pain. The numbers dealt with in hospital each year are frightening. When one looks round one's own bathroom or kitchen one realises that to-day we are handling all kinds of quite dangerous chemicals, and although the law requires that they shall be marked as "poisonous" or "dangerous", all too often the warning is given in small print and may be difficult to understand—and to a small child the shape of one bottle, particularly if it has a lemon on the label, is exactly the same as another. Therefore there is a real possibility that more of these terrible accidents will occur.
This seems to be an area in which the Director General should not merely wait to receive and collect information but also take action directly. I hope that the Minister will see fit to include this very reasonable Amendment in the new Bill which we are all so excited about. As I think the Consumer Association said:… fair trading consists not only of not over-charging the consumer, but also the protection of the consumer from injury or hazard".
§ 4.0 p.m.
§ LORD DRUMALBYN
I well understand the anxieties that have been expressed on all sides about this matter; but I do not entirely share them. It seems to me that the discussions on this point, made in the very sincere desire to do the best for the consumer, have rather overlooked the comprehensive way in which these matters are already covered.
My noble friend Lady Elliot of Harwood asked whether these matters are sufficiently covered already. I was not clear whether she meant in the Bill or under existing legislation. So far as the Bill is concerned what we are trying to do is fill gaps that exist. The major gap that exists is for a central authority which will keep under review the commercial activities, the way in which goods and services are supplied. This is therefore the primary function of the Director General. It is not that he will have nothing to do except to receive complaints or collate them, because if noble Lords will look at subsection (3)(b) they will see he can make recommendations, whether to the Secretary of State or any other Minister, in relation to any of the matters 1481 in which he has such duties. He can make recommendations on complaints that he has received or on evidence he may have collected. What we do not want to do in this Bill—it is not just a question of overloading the Director General; any activity of this kind is difficult to start—is to duplicate activities which are already being carried out.
Over a wide field there are statutory duties laid upon various Departments and other authorities. I need hardly rehearse them. It is well known that the Ministry of Agriculture, Fisheries and Food looks after the protection of the consumer in the field of food and drink. It issues regulations on food standards and food labelling and advertising and, in conjunction with the Department of Health and Social Security, on food safety and hygiene. It is responsible for the protection of both the users and the consumers of treated crops under the Pesticides Safety Precautions Scheme. In this way it covers not only agriculture, horticulture, animal husbandry and forestry, but also food storage, home gardens, kitchens and larders. The Department of Health and Social Security has the responsibility under the Medicines Act of protecting the consumer in the safety, quality control, labelling, advertising and sale of medicines. It has responsibilities also in the field of food hygiene, toxicity and nutritional aspects of food. The Department of Environment has responsibility for road and vehicle safety, including regulations on the construction and use of motor vehicles and their accessories. The Home Office is responsible for the consumer's health and safety in fields other than food, drink, medicines and road safety. These are wide responsibilities and when anything that affects them comes to the notice of the Director General he will pass it on to the authority whose responsibility it is.
Reference has been made to the Consumer Protection Act. The noble Lord, Lord Sainsbury, commented, quite properly on the fact that eight Orders had been made under the Consumer Protection Act. But at the same time the Home Office have achieved a great deal by negotiating the adoption of voluntary methods of practice in exactly the same way as the Director General will no doubt be tackling his own duties. He will also be negotiating wherever possible the volun- 1482 tary adherence to the practices that he deems necessary. I would add, in passing, that in Scotland many of these subjects are the responsibility of the Secretary of State for Scotland.
These Departments, are the repositories of knowledge and expertise and the source of action on all these subjects. They are assisted by a wide range of bodies such as the Medicines Commission and the Committee on the Safety of Medicines, the Food Hygiene Advisory Council, and also such non-statutory bodies as the Food Standards Committee, the Veterinary Products Committee, and so on. It is here that the expertise lies. The question we have to decide is whether we want that duplicated by the Director General. We consider that there is at present no comparable body which deals with the economic side of protecting the consumer. It is for this reason that we gave to him the primary responsibility of dealing with the economic effects on the consumer. He will not actually carry out research and investigation into health and safety matters. However he will undoubtedly receive a good deal of correspondence, complaints and the like, from associations. consumer associations, trading standards authorities and individuals; and where these come to his attention he will take such action in dealing with them as he thinks is proper. He will not always pass them on to the Ministry concerned, because it may be preferable for him to pass them to one of the consumer bodies, or to one of the trade associations, or to similar bodies. There is complete flexibility. What the Director has to do is keep these subjects under continuous review, in the same way as he has to deal with the practices that are detrimental to the economic interests of the consumer.
We believe that this is a sensible way of proceeding. Noble Lords may think it perhaps a little cumbersome. To some extent the Director General may be a postbox but he is also at the same time collating and taking notes of the results of his collation. Surely this is a far less cumbersome way of proceeding, and administratively a much more clear-cut way of proceeding, than duplicating the activities of the health and safety authorities. The Director General is appointed by the Secretary of State for Trade and Industry and it is to the Secretary of State 1483 for Trade and Industry that he is responsible. As I have said, what we are trying to do in the Part of the Bill is fill as many gaps that may exist in consumer protection as possible. It is on the side of the economic interests, much more than on the side of safety and health, that the legislative and administrative gaps exist. That is the prime object of this Bill. It is for these reasons that I strongly recommend your Lordships to allow the Director General to help Ministers charged with the responsibility of protecting the consumer in these fields of health, safety and the like to carry out their duties, as the clause provides, but not to place a duty on him to do the work that they have a statutory duty to do.
§ 4.9 p.m.
§ LORD DIAMOND
It is for the Committee to reach its conclusion on what the noble Lord has said. My own conclusion is that there were a lot of words and a great paucity of persuasion—in short, the answer is not good enough. The noble Lord will have noted, obviously, that the concern expressed on this matter came from all quarters of your Lordships' Committee. Those who contributed spoke with extraordinary authority on this particular matter by virtue of their own personal high-level experience. The noble Lord replied to the question that was asked by saying, "No, the powers to do all these things do not reside in this Bill; they reside in other provisions." That was in reply to the noble Baroness, Lady Elliot of Harwood. Let us get that clear first of all. Anybody reading the Act, if the Bill is passed in this form, will reach the conclusion that here is a Government setting up a new and welcome scheme, setting up a Director General with very wide powers, but excluding from his activities matters of health and safety—and without doubt therefore, downgrading them. That is the reading of this Bill.
The noble Lord then said that the justification for that is wise administration; that one does not want overloading and that there are, he thinks, provisions elsewhere in other Acts which put the responsibilities for dealing with the matters to which this Amendment refers under the Director General. He thinks they are provided for elsewhere, 1484 but he could not possibly say so because nobody can say so until the Director General has carried out his task this year, next year, in five years' time and seen what practices develop. The existing legislation protects those who have suffered from practices in the past which have come to the notice of the Government and the Government have done something about. But that is not a moving situation, as it would be under the Bill, with a live Director General collecting information, investigating where his suspicions are aroused and being ready immediately to protect the consumer as new and unwanted practices develop. So the noble Lord is saying that, for the sake of good administration and in order to avoid overlapping, and in particular—although he did not say this; these are my words—in order to avoid treading on the corns of those who are in different Departments, we should not include these responsibilities here, because the Director General has to report to the Secretary of State of the Department of Trade and Industry, or whatever it may be. I do not think that is a satisfactory answer, if I may so put it to the noble Lord.
There are two ways in which this can be administered: one is by being very insistent on boundaries, which is what the noble Lord and the Government want to do; the other is by having intelligent, co-operative people in charge of their various responsibilities, having the opportunity to find out information which interests them and, when they find it interests a colleague or somebody else who has a similar adjacent responsibility, bringing him into the picture as well, to decide between them what the total information is, what the total result is in terms of action required and which one shall take which action, in short, to achieve the desired object of protecting the consumer by joint action and co-operation. I do not believe that you can have a person who would be competent to he Director General of an organisation of this size and who would not have the sense to know how to co-operate with colleagues who are interested in similar fields. The noble Lord knows that this is how Government carry on the whole time. The essence of it is, as he knows from all the papers he reads at all hours of the night and early morning, is that all Ministers are kept informed on the basis that it is 1485 far better to co-operate than to have strict boundaries and to say, "Keep off my territory". So what I am saying to the noble Lord is that I do not think the answer, "Let us have boundaries", is a satisfactory one.
I am not impressed by the argument that there will be unnecessary duplication. There will be a measure of duplication whichever way you look at it. The noble Lord instanced medicine and talked about the protection of the consumer under certain Acts so far as medicine is concerned. Why? Does that mean that the Director General or his staff is never to go into a chemist's shop to follow up consumer practices and trading practices in that chemist's shop? Of course it does not. So what we are saying is that there is already under existing Statutes responsibility resting on somebody or other in connection with medicines, and if the Bill goes through in its present form there will be the duplication which the noble Lord does not like. There will be a measure of duplication because the Director General cannot carry out his present limited duties under the Bill without going into the chemist's shop or sending his minions to find out.
All the noble Lord is doing is shackling a responsible individual. He is saying, "You may have suspicions, you may have the minimum and inadequate information, you may believe that there is something you ought to represent to the Secretary of State, but you cannot do so because you have not got adequate information and you are not going to be such a fool as to write him a letter saying that so-and-so ought to be attended to because you suspect there is some malpractice but you do not know enough about it". Of course he is not going to do that. All that the noble Lord is doing is preventing such an individual from taking initiative to find out whether his suspicions can be corroborated out of factual evidence or not; and when the noble Lord talks about the Director General having power under a later subsection of the clause to refer to the Secretary of State it means nothing without the Amendment being passed. It means that the Director General cannot pursue his suspicions. And that is how it always starts—a little suspicion, a little information, and you say, "Ah, I will bear that in mind and see whether I get another 1486 piece of information which corroborates it, and if I do I will set up an investigation."
So I am saying to the noble Lord that I do not think the answer is good enough. In terms of the presentation of this Bill, drawn in the present form it will undoubtedly mean to the consumer protection world at large that health and safety matters are not as important as economic matters—and I do not think the Government believe that for one second. Secondly, there will be a measure of duplication however one deals with it; and, thirdly, it is far more sensible to have a highly intelligent man—which the Director General is bound to be—having the necessary flexibility to carry out his duties and co-operate fully with persons having similar responsibilities and between them avoiding duplication.
Having heard what my noble friend Lady Phillips has said, I would rather have a measure of unnecessary duplication than death. If we do not make sure that we are covering all possibilities something will slip through and the result will be a practice which, as my noble friend has said, has been shown on the evidence to lead to illness and death. 1 should have thought it would be far better—and I hope this is the feeling of those who have spoken—to accept the Amendment, to show that we are sensible of the need to protect consumers in terms of health and safety, and leave it to intelligent people to avoid duplication in the same way as every Minister avoids duplication.
§ VISCOUNT HANWORTH
It sounds rather churlish to criticise the Government over this Amendment because.hey are doing so much to help the consumer with this Bill. Nevertheless, I am afraid that the Minister's reply is simply not good enough. He has put an argument, it is true, but he has not answered a single one of the arguments put forward by the supporters of this Amendment. Three stand out to me. In the first place, one knows perfectly well that when several Ministries are involved—I will not say that nothing is ever clone, but a great many things that ought to be done, or could be done with profit, are not done. I can quote actual examples from my own personal experience in the consumer field. 1487 When we put forward a number of items for marking orders (one of those happened to be fire extinguishers), before anybody did anything about this it was battled or pushed forward between two Ministries, and of course nothing was done. Neither Ministry would grip it. So, because a number of Ministries are involved, I should have thought that a co-ordinating function for the Director General to ensure that these matters were brought up and pursued was absolutely vital.
Secondly, in many of these cases research is absolutely necessary. I cannot see Ministries conducting this research unless there is the strongest possible case for doing so. I believe that it might be possible to reach a compromise if the Government were prepared to put forward an Amendment which would in no way restrict the Director General, yet not necessarily giving this provision quite the same priority as his other duties have.
§ 4.21 p.m.
§ LORD DRUMALBYN
I can assure the noble Viscount, Lord Hanworth, that we do not in any way regard it as churlish that there should be criticism or doubts about parts of this Bill. It is a novel concept, and it is right that it should be fully and properly considered. Perhaps he underestimates the extent to which we have been endeavouring—indeed, I think I may say succeeding—to improve coordination between Departments. There is of course, as he knows, a Minister of Trade and Consumer Affairs, and that Minister has a Committee of Ministers from all the Departments to assist him: the Home Office, the Department of Health and Social Security, the Department of the Environment and the Ministry of Agriculture, Fisheries and Food. This Committee keeps in close touch with the other Ministers, including the Secretary of State for Scotland. There is a considerable co-ordination at that level, and once there is that impetus of co-ordination at ministerial level, then essentially there is bound to be co-ordination below. Unless it exists at ministerial level—the noble Lord was quite right—and it is liable to Departments are liable to be at each other's throats; but once you get them together, with a determination to work together, there is a different atmosphere.
1488 The noble Lord, Lord Diamond, has a point of view on this matter. I would dispute with him very much that, as I understood him to say, we should be leaving the wrong impression, that health and safety are not important; because the mere fact that we are concentrating here on the commercial activities does not mean that the health and safety factors are not important. Nor do I want to leave the impression that, because we are dealing with the economic side of products, we are thereby excluding products that deal with health and safety. This of course is not true. We deal with the economic side of supply of any goods and any services, whether they come into the health sphere, the safety sphere or any other sphere.
The Director General will not himself have testing facilities to see what is the quality of goods, and so on, and we do not think that he should carry out this kind of activity. If this is to be done, it should be done by the Departments which are responsible for the quality of the goods and which make regulations about the quality. This is the essential distinction we have devised in this Bill. I hope that it will be progressively more acceptable to noble Lords, as they come to see how the concept works out in practice in the later clauses of Part I and Part II. But I must say to noble Lords that it is absolutely essential to the conception we have in this Bill that the Director General should have this primary function of concentrating on commercial activities which relate to goods supplied, goods produced, and to services, and to the practices which Clause 2(1)(a) says:may adversely affect the economic interests of consumers in the United Kingdomin those matters.
So far as the safety and health of consumers are concerned, these are matters for the Departments, and I say to noble Lords with great sincerity that I believe that when we are starting out on this particular kind of organisation it is necessary to make quite clear (and here I find myself a little at odds with the noble Lord, Lord Diamond) exactly what the boundaries are. Unless we have boundaries we cannot have efficient administration—we all know this—and to blur the 1489 boundaries completely would be a very great mistake. Here is the major function of the Director General, and in the course of exercising that major function he will get to know about many matters which affect the other Departments and in which those other Departments are expert. It is surely right that he should pass on to the Departments those matters in which they are expert, rather than attempt to cover the whole field himself. I am sure that that would not be a success, especially as he has to deal with monopolies and mergers and restrictive practices, and so on, at the same time.
I concede at once that one can conceive of a Gilbertian character, to use the word which the noble Lord, Lord Airedale, used earlier, where you had a complete Pooh-Bah dealing with everything that affected the consumer in any way at all. But it cannot be an effective way of dealing with Government to try to detach the interests of the consumer from the various functions of the Departments. Almost every Department has a consumer function. What we in the Department of Trade and Industry are concerned with are the commercial interests here, and the primary function here is on the commercial side, with the Director General being in a position to take note of all the various other points that are represented to him, or which he finds in the course of his activities, and to pass them on to the experts in their own field.
§ LORD DIAMOND
I am sorry to say to the noble Lord, Lord Drumalbyn, that, although we are appreciative of the care which he devotes to these matters, and have listened to him carefully while he explained the position clearly, his explanation has not satisfied us that the Bill as it stands would be as good as it would be if this latitude were given to the person who is well capable of carrying it. It is not the case that matters affecting health and safety are excluded from the Director; they are put down in the very next subsection, which says that he must "receive and collate evidence". The whole point is: why should he be so restricted in these matters? There will be black and white matters which are covered by other Acts. There will be grey areas which are not, and these, will develop—they may not exist now—and that is what the Director is there to protect the consumer from. Where they affect health and safety he should have full power and full authority to act in a reasonable and sensible way and not be restricted by Statute. I am bound to say that in my view the Committee ought to show its view on this matter.
§ 4.29 p.m.
§ On Question, Whether the said Amendment (No. 3) shall be agreed to?
§ Their Lordships divided: Contents, 59; Not-Contents, 61.1491
|Airedale, L.||Donaldson of Kingsbridge, L.||Nathan, L.|
|Amulree, L.||Douglas of Barloch, L.||Northchurch, B.|
|Archibald, L.||Douglass of Cleveland, L.||Ogmore, L.|
|Arwyn, L.||Elliot of Harwood, B.||Phillips, B.|
|Berkeley, B.||Faringdon, L.||Platt, L.|
|Beswick, L.||Fiske, L.||Popplewell, L.|
|Birk, B.||Gardiner, L.||Sainsbury, L.|
|Blyton, L.||Granchester, L.||Samuel, V.|
|Brooke of Ystradfellte, B.||Greenwood of Rossendale L.||Serota, B.|
|Buckinghamshire, E.||Hale, L.||Shinwell, L.|
|Burntwood, L.||Hanworth, V.||Stocks, B.|
|Burton of Coventry, B.||Henley, L.||Stow Hill, L.|
|Byers, L.||Hylton-Foster, B.||Strabolgi, L. [Teller.]|
|Carnock, L.||Kennet, L.||Strange, L.|
|Champion, L.||Kinloss, Ly.||Wells-Pestell, L.|
|Chorley, L.||Llewelyn-Davies of Hastoe B. [Teller.]||White, B.|
|Clancarty, E.||Williamson, L.|
|Clwyd, L.||Loudoun, C.||Willis, L.|
|Davies of Leek, L.||Mar, E.||Wise, L.|
|Diamond, L.||Meston, L.||Wootton of Abinger, B.|
|Aberdare, L.||Balerno, L.||Bourne, L.|
|Alport, L.||Balfour, E.||Brooke of Cumnor, L.|
|Astor of Hever, L.||Balfour of Inchrye, L.||Carrington, L.|
|Colville of Culross, V.||Hawke, L.||Moyne, L.|
|Conesford, L.||Hood, V.||Nugent of Guildford, L.|
|Cork and Orrery, E.||Ironside, L.||Rankeillour, L.|
|Cottesloe, L.||Killearn, L.||Reay, L.|
|Courtown, E.||Kinnaird, L.||Reigate, L.|
|Craigavon, V.||Limerick, E.||Ruthven of Freeland, Ly.|
|Cranbrook, E.||Long, V.||Sandford, L.|
|Cromartie, E.||Lothian, M. [Teller.]||Selkirk, E.|
|Daventry, V.||Lucas of Chilworth, L.||Strathclyde, L.|
|de Clifford, L.||Luke, L.||Strathcona and Mount Royal, L.|
|Derwent, L.||Lyell, L.|
|Drumalbyn, L.||Macleod of Borve, B.||Strathspey, L.|
|Dulverton, L.||Massereene and Ferrard, V.||Tenby, V.|
|Ebbisham, L.||Merrivale, L.||Thomas, L.|
|Falkland, V.||Milverton, L.||Tweedsmuir L.|
|Goschen, V.||Monck, V.||Vivian, L.|
|Grimston of Westbury, L.||Mowbray and Stourton, L. [Teller.]||Windlesham, L. (L. Privy Seal.)|
|Harvey of Prestbury, L.||Young, B.|
On Question, Motion agreed to.
§ 4.36 p.m.
§ LORD DIAMOND
had given notice of intention to move Amendment No. 4, to leave out paragraph (b). The noble Lord said: I wish merely to say to the noble Lord opposite that he will have noted the figures in this last Division with the same care that I did—perhaps with a little more care than I did—and therefore I think it would be appropriate for the whole Committee, and certainly for the Government, to consider the matter carefully between now and Report stage in order to see whether some Amendment cannot be devised which will meet the generally expressed anxiety in the Committee. When opinion is as evenly divided as it has been on this last occasion I should have thought it was up to all Members—particularly those who have Front Bench responsibilities and even more particularly the Government—to give the matter careful and sympathetic thought. Having said that, I shall not now move this Amendment.
§ LORD DIAMOND moved Amendment No. 5:
Page 3, line 26, at end insert:
("(6) It shall be the duty of the Director to encourage and assist trade associations and similar bodies in the promotion and establishment of codes of practice designed to achieve and maintain fair trading")
§ The noble Lord said: I think I can deal with this point very shortly indeed. There cannot be any doubt among your Lordships that codes of practice serve a useful purpose, nor can there be much doubt in industry, where they are in certain cases promoted by the trade associations. Therefore the only question that arises is whether it is necessary 1492 and wise to put a statutory duty on the Director of encouraging and assisting trade associations to achieve this end, or whether the duty rests on him sufficiently as a matter of common sense. I should have thought that in present circumstances it would do no harm and a certain amount of good to put this statutory responsibility upon the Director.
As the noble Lord will have gathered, I do not think this is a matter of life and death, but I consider it is an improvement to let people know that codes of practice are something to be sought after; that you are far better off to get a code of practice established by a trade association so that those in that trade and industry who are not conforming as well as the average—or certainly not as well as the best—should know what is expected of them in terms of good practice and sensible behaviour, without having to use the whole of the force of the law and without having to go to the Secretary of State to have regulations made, and so on. This is a sensible and reasonable way of behaving. I hope that encouraging the establishment of codes of practice is something that the Government want to foster and that they will therefore think it right that the Director should have this duty laid upon him in the Bill. I beg to move.
§ LORD DRUMALBYN
I am grateful to the noble Lord for the way in which he has moved this Amendment. Certainly none of us is in disagreement on the desirability of developing and fostering the establishment of codes of practice in industry. As he has correctly said, the only question that could possibly divide us on this matter is whether we should put this into the Bill. The noble Lord knows as well as I do the difficulties of 1493 drafting that can arise, and he will not be surprised to hear that I shall not be able to accept this Amendment—at any rate in its present form. But I should like to say to noble Lords that on the whole it is a generally accepted principle that matters are not put into legislation which are expected to happen anyway, just for the sake of giving them a prod along. Obviously, the Director will give assistance in this way and it would be a very strange Director General indeed who did not do so, especially in view of the fact that there is general acceptance on all sides of the value of effective voluntary codes and the fact that in some areas such codes are already operating very satisfactorily.
Also, of course, where possible, I think we should all agree that if we can limit the amount of legislation, whether direct or indirect, whether by Statute or by Order, the best way of limiting it is to ensure that we have good codes of practice in operation. Everyone is going to be absolutely clear about this and above all I should have thought the Director General would appreciate that without being told. I recognise absolutely the importance of this matter. After all, I ought to, as I was running one of these codes of practice for five years. But there is a real difficulty about it. I should like to put this question to noble Lords because I think it is worth while for them to think about it: how far is it appropriate to put, in an Act of Parliament, a duty to encourage non-statutory codes unless there is some kind of provision in Acts of Parliament giving legal effect to some extent to those codes of practice? I understand the difference between what is enforceable at law and what is not, and in some ways it may be very desirable to keep these matters entirely separate. But I personally rather hesitate to lay a duty on the Director General "to encourage and assist" trade associations simply because it has many implications for his other duties as well, with regard to restrictive practices and the like, apart from anything else. I have a hesitation in doing this in view of the way in which the noble Lord has put his Amendment to the House. I should like to give it further consideration, but I make it quite clear that my present inclination is not to have it in the Bill, first, in the general terms that you do not put things into a Bill that are unenforceable 1494 and probably unnecessary; and secondly, because of these ideas at the back of my mind. Having said that, and with that commitment, I shall certainly consider this matter further.
§ BARONESS BURTON OF COVENTRY
May I say a word here? The Minister and I rose together but he embarked first. I appreciate very much what he said, but several speakers on Second Reading in this House, as well as in another place, referred to this matter. Obviously there is nothing between all sides of the House on the importance of these codes, and I accept that. I quite accept also what the Minister has said about the difficulty of statutory enforcement, but it would be of the greatest help to trade associations if it could be made known—whether this can be done by publicity or other means, when the Minister has considered it—that codes of practice would be looked upon very favourably, and that the Director General would like them.
I was going to refer to this matter when I came to my own Amendment later, but as the Minister will know, my Amendment of Mail Order Publishers has a code of practice and I am chairman of the Authority. It is not always easy to get a code of practice which is acceptable to all your members, and when it is finally established there may well be some who cannot accept it. But there is no question—and I should think we are all agreed on this point—that when you get a code of practice the greatest beneficiary is the customer in every single case, and speaking from a trade association point of view I know that we should greatly welcome any encouragement from the Director General or from the Government that such codes of practice should be embarked upon. If the Minister is able, in response to the way in which my noble friend Lord Diamond framed his question, to bring us any other suggestions at the next stage, I for one would welcome them.
§ LORD DIAMOND
Your Lordships' House is indeed rich in the experience of those who are able to speak with great knowledge on these matters and my noble friend has used words which, with the greatest respect, I share completely. The noble Lord will have noticed that the Amendment was drawn in the very 1495 moderate form of inviting the Director "to encourage and assist". I am much encouraged by what the noble Lord has said about the expectations by the Government of how the Director General will regard his duties. We have established that we are all ad idem on the value of codes of practice. The noble Lord has no doubt that the Director General will regard this matter as part of his function, whether or not a statutory duty is laid upon him. The only thing that remains is the point that my noble friend Lady Burton of Coventry mentioned: if you are doing everything you can within your trade association to get a code of practice accepted and you have one or two members hesitating, it will be very nice if you can say: "Look, it is expected. A Bill has been passed by Parliament which says that it is a good thing to have a code of practice. You really ought to join with us in agreeing this code of practice, whatever it is." It is always a beneficial attitude not only for the consumer but for the trader as well. I am grateful to the noble Lord for what he has said. I note that he will give the matter consideration without any obligation of any kind. I repeat my gratitude and I ask your Lordships' permission to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 2 agreed to.
§ Clause 3 [Consumer Protection Advisory Committee]:
§ 4.50 p.m.
LORD DIAMOND moved Amendment No. 6:
Page 3, line 30, after ("of") insert ("investigating, consideriog and making recommendations to the Secretary of State or any other Minister or the Director regarding practices which may promote the interests of consumers in the United Kingdom and for the particular purpose of").
§ The noble Lord said: This Amendment would place an additional activity, responsibility or latitude upon the Consumer Protection Advisory Committee. We have now reached the part of the Bill which deals with the establishment and powers of this Committee. When we look at those powers we see that the Advisory Committee have again a very passive role. They are to give advice when they are asked to do so. I am sure 1496 this will probably be adequate to begin with: we shall, I am quite sure, have a Director who will be very keen on his job—a new post, a new Bill, everything set fair, including the title. He will be very active; he will have a great deal to do, and all will go swimmingly, I am sure. But there may come a time when the Director will—what shall I say?—tire of good deeds, and it may be then that the Consumer Protection Advisory Committee ought to be able to prod him a little in sensitive areas, in particular in relation to matters on which they have some information and are feeling anxious, and on which the Director is showing himself rather unwilling to respond adequately to their expressions of anxiety. I think it is a wise thing to have a reserve power on the part of the Committee, who would know that their main function is an advisory one but who would he able to prod, with some authority, the Director if that ever became necessary. That is all that is in this necessary. That is all that is involved in this Amendment—nothing very substantial but something, on the whole, beneficial to the Bill. I beg to move.
§ LORD SAINSBURY
I should like to support my noble friend, Lord Diamond. During my Second Reading speech I described this as a two-way traffic. The Consumer Protection Advisory Committee will undoubtedly bring together a wealth of experience in relation to consumer protection, and it seems desirable that full use should be made of this body by enabling it to suggest areas of action to the Director. If, as we all hope, the Director plays an energetic and dynamic role in initiating new and necessary measures, it will not be necessary for the Advisory Committee to make use of the powers suggested by this Amendment. But I still feel they should be available to the Committee in case of need.
§ LORD DONALDSON OF KINGSBRIDGE
May I add a word of commendation for this Amendment? It is perfectly clear to me that the difference between an Advisory Committee which is to wait to be asked for advice and an Advisory Committee which can initiate advice is fundamental. It is a question of how strong we want this Committee to be. We on this side, and I think on the other side, too, want the Committee to be a really powerful 1497 Committee and one that can support the consumer throughout. After all, there are consumer groups throughout the country who are looking at these problems. There are a number of people who have grievances, and it is to the Committee that they should bring their complaints; the Committee would then co-ordinate them and bring them before the Director. I think the Amendment would make this a very much stronger and more effective body, and I hope the Government will consider it with favour.
§ BARONESS BURTON OF COVENTRY
I wanted to refer to the powers of the Committee in general on the question that the Clause stand part, but I should like to support this Amendment; it is one of the points I wished to make. It seems to me that if this Committee is to be purely advisory, and to have no powers of initiation at all, then, with due respect, it is not going to be worth a great deal. If we are to have just another Committee, with people sitting there waiting to have things referred to them but with no power to initiate inquiries themselves, it will fall a long way short of what the consumer organisations are expecting. I support the Amendment.
§ LORD DRUMALBYN
I do not think that noble Lords should underestimate in any way the importance of the duties of the Consumer Protection Advisory Committee, as conceived in this Bill. The powers that the Director has of making proposals and recommendations to the Secretary of State for Orders to be made, on which the Secretary of State will be acting, are really very wide indeed, and for that reason it is very necessary for him to have a real sounding-board, what I would describe almost as a touchstone, proving the value and validity of the Director's proposals for Orders. It is a very important function indeed. But we do not conceive of the Committee being, and it is not intended to be, another consumer council.
It is not intended to be, with the greatest respect to the noble Lord, Lord Donaldson, a body which will initiate, let alone carry out, investigations; I understand the Amendment actually to give power to carry out investigations as well as to make recommendations to the 1498 Secretary of State regarding practices and so on. The Committee will have no staff to do so. It is not intended to have a staff of its own; there is nothing in the Bill giving it a staff, because it will be staffed by the Department of Trade and Industry. If the Amendment were carried it would be the staff allocated to the C.P.A.C. in the Department of Trade and Industry who would be carrying out these investigations, and this would plainly be a totally unacceptable duplication of the work of the Director.
So far as the influence which the Consumer Protection Advisory Committee might exercise is concerned, this will depend very much on the relationships that exist between that body and the Director, and one canont really formulate these human relationships into an Act of Parliament. But there should be no doubt of the way we conceive the man function of this body. It is to assess proposals by the Director for Statutory Orders regulating consumer trade practices which appear to have adverse effects upon the economic interests of consumers. That is its function, and it is intended that it should be constituted with that particular function in mind and be a broadly based body with a very wide range of experience. It has a subsidiary role under Clause 14.
References may be made to the Consumer Protection Advisory Committee in respect of consumer trade practices thought to have adverse effects on the economic interests of consumers, but for which there has been no proposal for an Order under Clause 22. But we have deliberately limited the function of the Consumer Protection Advisory Committee because it will be a body of part-time people brought together from a wide range of experience, active in their own spheres, and all the more useful because they are active in those spheres, without a great deal of time to spare, without any staff at their beck and call. They will be a real mine of wisdom, as we see it, in the way that the Consumer Protection Advisory Committee will be chosen. It is intended to give the widest possible representation of all interests concerned. But that it could itself carry out investigations we do not contemplate, and we do not see how this could possibly fit into the framework 1499 of the Bill as conceived. So I am afraid I must resist this Amendment.
§ LORD DONALDSON OF KINGSBRIDGE
Could the noble Lord explain this aspect: If there is a consumer group, say in Bristol, which has unearthed an unsatisfactory situation which may be persisting, I would visualise that it would put that matter to this advisory body and they would consider it and put it to the Director. I imagine the Minister thinks it would go direct to the Director. It would be all the worst for that, I think.
§ LORD DRUMALBYN
I do not think that this is necessarily so. The difficulty in the past has been—and I am sure that the noble Lord will confirm this from his own experience—that the kind of body that we have had was not a body that could take action in the way that the Director General will be take action. It was not a body with the same resources at its disposal as the Director General will have, and it will be right for the Director General to become known as the person to go to—the kind of "tribune of the people", if you like—and refer matters of this description to. I am sure that this is right. I have no doubt at all that in these days a Director General appeals much more to the public than a committee, and that people do not take a great deal of interest in committees as such. They are very good for consultation, of course, but as a body to achieve action people do not go to a committee; they go to a Director General.
I think that this will catch the imagination of the public and that it will be proved that we have found here a sound solution in having this officer to whom these representations and complaints can be made. He can then investigate, get information and all the rest of it; and then, when he has reached a plan of action on what is needed for the protection of the public, he will make an order, he will refer it to the Consumer Protection Advisory Committee, and they, in turn, can approve it, reject it, or make changes to it. Then if it is approved, or modified, it will go to the Secretary of State and he will make up his mind whether or not to implement it, either as originally proposed to the Consumer Protection Advisory Committee or in accordance with the modifications that 1500 they make. It is a very important function, and I do not think that we ought to try to extend its powers by making it a body like the Consumer Council, carrying out its own investigations and studies.
§ 5.2 p.m.
§ BARONESS PHILLIPS
I think the Minister has, in a way, condemned the Committee by its very description. Let us take a practical example. We have at the moment a Minister of Consumer Affairs—that we have not had before—and a Price Commission. But take a simple example like a piece of research which women's organisations are doing now. They are finding out that packaging is actually contributing to making the cost of a product higher. Having got all that research together, with some very factual information, they then wonder where to send it. In the old days they would have sent it to the Consumer Council. Let us be under no illusion. At the moment we have nothing, either in Government or in any ad hoc bodies, which would deal with a matter like this. I am deliberately leaving out the case I quoted before on safety. I still say that no one is responsible for looking into that kind of situation and that thousands of children get burned or die each year. You have to wait, in a strange way, until the Director General bestirs himself, in which case he will ask the Advisory Committee who may, or may not, think that this is a good idea. If the Director General is to have very wide powers—and those are the words of the Minister and it is splendid—but, on the other hand, is going to be backed up by a body which, in itself, is only able to offer advice which he may, or may not, accept, I think a great opportunity is going to be missed.
§ LORD DRUMALBYN
May I intervene for a moment? It is not the Director General who accepts the advice; it is the Secretary of State. The Advisory Council advises the Secretary of State; it gets proposals submitted to it by the Director General.
§ BARONESS PHILLIPS
The noble Lord rather suggested that after the Advisory Committee had looked at it, it went back to the Director General before it went to the Secretary of State. It does not. In any case, I think that that makes the matter slightly more complicated. There is such a chain through this that I suspect that 1501 certain matters that need legislation will take a long time to come forward. It seems reasonable to me that the public, if this body is going to be built up—and it will be—when it is finally presented will believe that here they have a Committee to which they can appeal, instead of which they have merely something like the National Insurance Advisory Committee, which is really—and I hesitate to use these words—often used by Ministers as a rubber stamp, or, if they do not want to deal with some matter, they say, "The Advisory Committee is considering it". Naturally the Minister replying to this discussion would not do that, but one gets that feeling occasionally. I think that if there is to be a very important committee of this kind on which presumably there will be very skilled people, then they should have a direct function of initiating research, because in the area of health and safety they are the only people who can do this.
§ LORD DONALDSON OF KINGSBRIDGE
May I clear my own mind on a point? Could the Minister explain what the function of this Committee is? As I understand it from what we have heard, consumers, in one form or another, will make complaints to the Director General—and most consumer problems consist of consumer complaints; we know that this is the big thing—and the Director General will consider them. He will propose legislation or action of some kind, and then, before taking it, will pass it to the C.P.A.C., whatever it is called. And that is all that will ever happen. There will be a body of estimable people who will look at what the Director General proposes to do and say, "Fine!". Is that really what the function of this Committee is? Because it seems to be extraordinarily trivial. I had thought that we were going to have quite a useful body which could help people who are complaining to complain to the right source and get their complaints sorted out. Now it seems to be a sort of very faint rubber stamp. I hope that I have got it wrong.
§ LORD DRUMALBYN
May I explain it in this way? When we came to consider what kind of action to take, obviously we thought of the idea of an institute, or something of that kind, which would carry out the investigations and look into matters of that sort. That was 1502 one possibility. Another possibility is the one we have in the Bill, to have a Director General. But you could not have a Director General and a Consumer Council, or something of that kind, at the same time; that would be a duplication. We think that in having a person like the Director General, with these very important functions, we have a much better answer. What I was saying was that he will necessarily have great powers, and before the Secretary of State makes his orders he will want to get advice from people who are broadly representative of the population at large. This is what this body is constituted for. With great respect, I think that this is a very important function. The orders that are going to come along will affect a great many people, and obviously the Consumer Protection Advisory Committee will be receiving a great deal of information will be able to call for information from the Director General. They will be able to call for his assistance, which I take to mean to ask him for more information in many cases, or assistance in one way or another. They will be doing a very thorough job.
§ LORD DRUMALBYN
I am trying to make the point that it is on matters put to them. This is their function and their sole function, and I am arguing that that ought to be their function, because otherwise it would be a duplication of what the Director General is doing. Before the orders can be made, the Director General is there to see what is going wrong. Not all complaints will come to him; obviously complaints will go, as they do, to the consumer protection bodies and the citizens advice bureaux, and all this will go on being dealt with as before. Some complaints will go to him, possibly through the citizens advice bureaux, and it is from these and from his own investigations that he will get his information and come to a conclusion about where the consumer needs protection in these commercial fields. When he has done that he will submit orders for the protection of the consumer.
1503 which are referred to in Clause 17, to this body, and I should have thought that theirs was a very important function indeed. I do not think it would be right for the Government to set up two bodies, to do the same job, so that one is preparing and proposing and another is deliberating, considering and approving, before anything goes to the Secretary of State. It seems to me that we have a very good distribution of functions, and I hope that it will commend itself to your Lordships.
§ LORD DIAMOND
I think the noble Lord is greatly exaggerating the effect of the Amendment, when he suggests that it would mean creating two bodies—that is to say, the Committee and the Director General—to do the same job. That is not the position at all. The noble Lord has made perfectly clear what his view is about this Committee. He has said that it is to be a sounding board and I feel, as my noble friend Lord Donaldson, in particular, feels. He and I have a certain interest in common. But because he does not understand the view of the Government very clearly. I would put it to the noble Lord that this Committee is to be simply a sounding board. You make your voice heard, you strike a chord and you listen to the answer. If you like the answer you say, "That is fine; that is euphonious; that is harmonious; that is lovely." But if you do not like the answer, you say, "It is cracked", and you have then disposed of all your problems with the sounding board. My noble friend Lord Donaldson and I do not believe you will get the highest calibre of lively, imaginative, well-informed individual to sit on this Committee for very long in order to act as such a sounding board. That is the problem.
The noble Lord, Lord Drumalbyn, has made very clear what is the Government's view, which is that there should be on this Committee people who are capable of being bored stiff every time they are summoned together, and who will not resign. That is about the only qualification. The Government have gone much too far, and I think we shall have to come back to this matter at a later stage to see whether we can give some more taste to the job which this important Committee is expected to do. The Government want it to be an important Com- 1504 mittee, and so do we. But with the present terms of remit, and with the description of the Minister, it will not be. I do not think that this is a matter we should pursue now and I do not wish to divide the Committee on this Amendment, but I think we shall have to come back to it at a later stage. Having said that, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.13 p.m.
§ LORD DIAMOND moved Amendment No. 7:
Page 4, line 16, at end insert—
(d) a majority of persons within the classes of persons described in (b) and (c) above.")
§ The noble Lord said: This Amendment relates to the composition of the Consumer Protection Advisory Committee. which is an important Committee, and one that will have very wide representation. Indeed, the paragraphs in subsection (5) make it clear that it will be drawn up in that way. What this Amendment seeks to do is to add the one factor which has been missing; namely, that the Committee should have on it a majority of consumer-qualified people, as opposed to people coming from industry and commerce. It is a very short point and I need not delay your Lordships. It seems to me that one does not need to argue it at all. It is obviously sensible that in a Consumer Protection Advisory Committee the consumer element should be in the majority. I beg to move.
§ LORD DRUMALBYN
It seems to me that there may be a little misunderstanding here—although I may be wrong. This Amendment seems to presume that the persons to be appointed to the Advisory Committee will be all, or nearly all, persons with the qualifications in paragraphs (a), (b) and (c). But, of course, that is not necessarily so. Those paragraphs give the qualifications which the Secretary of State believes some people on the Committee should have, but he is not tied to any particular number or to any particular task. He will no doubt appoint people with other qualifications, in order to get not only the broadest possible base but the best balance of opinion all round, from all directions and from all angles. It is intended that the Secretary of State should have the freest possible choice of 1505 membership, purely on the basis of who is personally best qualified to do the job, and I should have thought that he would wish to include some members who, quite irrespective of their professional background or of the backgrounds specified in paragraphs (a), (b) or (c), were eminently suitable.
Therefore, because we want to get the right balance, we do not think it a good idea to specify that the majority should be either… persons appearing to him to be qualified … by virtue of their knowledge of or experience in the enforcement of the Weights and Measures Act 1963 or the Trade Descriptions Act 1968 or other similar enactments",or—… persons appearing to him to be qualified … by virtue of their knowledge of or experience in organisations established, or activities carried on, for the protection of consumers.Those alone would not give the wide and balanced point of view which we hope to achieve in the Committee. In any case, it has to be borne in mind that the mere fact that a majority of the Committee had such types of experience would not in itself ensure that such a majority was present on each occasion when proposals of the Director General were being considered. So I should not have thought that this was a proposal which would be workable in the sense the noble Lord intends.
I should like to make it clear that the provisions of subsection (5) of Clause 3 are not meant to indicate that particular interests will be assured of places on the Committee. Its members will not represent organisations with whom they are, or have been, associated. They will be there in their individual capacities to give the Committee the benefit of their accumulated wisdom. The Committee's wisdom will be formulated as a result of experience of all kinds, including the universal and cardinal experience of being a consumer.
§ LORD DONALDSON OF KINGS-BRIDGE
The force of my noble friend's Amendment is negative rather than positive, and I think that the noble Lord, Lord Drumalbyn, has missed the point. What we want to be sure of is that we do not find a majority of producers in the 1506 Consumer Protection Advisory Committee; and there is nothing to suggest that there will not be. I do not suggest for a moment that that is the Secretary of State's intention, but the point of the Amendment is to make sure that weights and measures experts, or people who are concerned in some way with consuming, are not over-weighted by producers, retailers, manufacturers, et cetera, who take the other point of view. I do not think the noble Lord's answer quite met that point.
§ LORD DRUMALBYN
If my answer did not meet that point specifically it did so in spirit. I said quite clearly that we want to get the best sort of balance and width of viewpoint in this kind of Committee. I cannot believe that it will be the case that the Secretary of State would appoint a majority of traders aspersons appearing to him to be qualified.. by virtue of their knowledge of or experience in the supply (whether to consumers or not) of such goods or by virtue of their knowledge of or experience in the supply of such services;even although these persons are all consumers as well as suppliers. I think it highly improbable that they would be appointed by virtue of that experience. This is the point. I think it would be wrong to tie the Secretary of State to saying that people should be wholly disqualified in any way by virtue of what they arc doing in their professions or that there should be a majority of people with a particular kind of experience. It would be wrong to tie him down in this way. I am prepared to look at the wording of this Amendment to see whether we can make it clear that our object is to get the best possible balance in this Committee.
§ LORD DIAMOND
I am grateful for the Minister undertaking to have another look at this. We are always delighted to hear from him. While looking at it and thinking about it, would he be kind enough to "take on board" that telling us that the balance will be the best possible balance is not a very persuasive argument. We are all against sin and for virtue; but it needs to be particularised. We want to know what is the best possible balance. The best possible balance, in our view, in a consumers' protection Bill is a balance clearly weighted in 1507 favour of the consumer. It is as simple as that.
The noble Lord says that he does not accept that argument. He wants it according to certain principles which are so arcane that they are not going to be disclosed. I do not think it is good enough to say that it will be the best possible balance. We have made the point—and it is a simple one—that presumably this is a Bill which sets out mainly to protect the consumer; for that is what fair trading is about. In protecting the consumer new practices will be adopted and will be enforced by the Secretary of State after consultation with the Committee. The Committee will have a view.
We all know how these people are got together. Various representative interests are consulted. They are asked, "Would you care to suggest somebody—and would you, and would you?" When they are assembled they are all very eminent and able and for so long as they are able to keep awake during the boring lack of activity that the Government are prepared to inflict on them. To begin with, at any rate, they are very able people; but they have their interests. It is right that a consumers' Bill should have a balance in favour of consumers' interests. There may be a question of whether there should be a recommendation to the Secretary of State that a certain practice should be stopped. It depends on what view you take about it; whether you are on the shoppers' side or on the traders' side. It is as simple as that.
I cannot see anything wrong with having a majority, for example, of those in category (c):… persons appearing … to be qualified to advise on such practices by virtue of their knowledge of or experience in—".It does not say, exclusively experienced in—organisations established, or activities carried on, for the protection of consumers.That is a very broad and useful category of persons. That, and the category above together, ought to have the majority. The Minister has skated round it in his own elegant way with figures of eight and reverse threes and all those things of which he is so capable; but he has not come to the point. The point is this. Is the Committee going to be weighted in favour of the consumer? We think it 1508 should be so weighted. We are grateful to the Minister for his undertaking to think about it and we hope that what we have said will help him to clarify the situation.
§ LORD DRUMALBYN
Before the noble Lord withdraws the Amendment, as I am sure he is about to, it is right to say that, after all, we are all consumers. I take his point. We have interests. But if I am going to think about this, then he also should think on his side whether merely having served on a body for the protection of consumers should be a qualification for being in a majority. What the Bill says is that there will be some people who have served on or who have had experience in organisations established, or activities carried on, for the protection of consumers. We want to get the broadest possible representation of consumers' interests and not necessarily the institutionalised consumers' interest.
§ LORD DONALDSON OF KINGS-BRIDGE
I am not happy about this. We have a perfect example here. My noble friend Lord Sainsbury has always been a champion of the consumer but I would not think of him for one moment as anything but a retailer. I am serious. I do not think he would expect to be thought of as anything else. The noble Viscount, Lord Watkinson of Schweppes, would be a wonderful member of almost any committee but a consumers' protection committee.
The noble Lord has not met the point. There are a number of admirable people who make their living in an honest way selling things; but these are not the people that you want to have in the majority on this Committee. We must stick to that.
§ LORD DRUMALBYN
I should like noble Lords to understand the difficulty here. We are setting up a committee of not less than 10 and not more than 15. We have said in paragraphs (a), (b) and (c) that there must be at least one of each of these categories—
§ LORD DRUMALBYN
There may be more than one of each. Noble Lords are saying that, assuming a total of 15 is nominated, there should be eight of categories (b) and (c). All the rest will be 1509 various types of experts—legal advisers, accountants, and so on—in order to get the broadest possible base do which to judge of orders which are to carry criminal sanctions with them. That is what we have to judge. I shall think about it, but I hope that the noble Lord will think about it, too.
§ LORD DIAMOND
The noble Lord, Lord Donaldson of Kingsbridge, and I speak with one voice on this. We take the same point of view. We want the Committee to be broadly based and balanced and worthy of all the beautiful adjectives which the noble Lord, Lord Drumalbyn, has used. We want all that. We want one thing more. Inasmuch as there has been no indication of the balance that is going to be within this Committee, no indication whether it is going to be 90 per cent. consumers or 90 per cent. traders or what; inasmuch that there has been no indication at all, we want to make sure in a consumers' protection Bill that the advisory committee shall be composed in such a way as to look first at the consumers' interest. The noble Lord has not given anything to satisfy us on that beyond saying that he will think about it.
The way the Amendment has been drawn is the usual way in which an Amendment is drawn—the simplest, shortest, possible way to enable one to raise a point. The important thing is not the Amendment, but the argument. And of course the noble Lord is right in saying that the Amendment is not very happily drawn or phrased, that we could improve on it greatly. He is not right in saying that it does not take account of the technical argument that even though you have a majority the quorum would also have to be represented, unless you want the whole thing to go wrong. But that is not a valid point to take. It is always the circumstance in every kind of balance. You assume that people will get on sensibly and there is no reason to lay down very detailed rules about a quorum at any particular time. The Amendment does not include a provision that consumer interests shall "put the Whips on" every time there is a vote within the Protection Committee. We think that may be left to good sense. I have made the point, and I am sure that the noble Lord is aware of what we are after. We are not after these par- 1510 ticular words. Having regard to what the noble Lord has been good enough to say, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 3 shall stand part of the Bill?
§ 5.31 p.m.
§ BARONESS BURTON OF COVENTRY
I should like to say a word on this question because I am far from happy and I have become less happy as the argument has proceeded. I did not put down an Amendment on the point I wished to raise because I could not think of the right terms. I was very glad when a Minister for Consumer Affairs was appointed. I was very sorry to see that this Bill made provision for a committee designated as a "Consumer Protection Advisory Committee". Without wishing to sweep the ground from under the feet of my noble friend Lord Diamond, and while supporting him on a consumer protection Bill, I feel that to give the committee that name is to go back to what we were arguing about on consumer affairs in the 1950's and 1960's.
I do not believe that consumer protection is what we should be after now; I think that we should be after consumer education. I think that all of us should he so educated by, if you like, what this Committee does, what the Bill does, what the consumer organisations do, as to be able to protect ourselves, because we have been given the knowledge. I could not think of a better term than "Consumer Protection Advisory Committee" but I should like to hear the comments of the noble Lord on the theme and not on the actual title. Does he not feel that, as we go forward into the 1970's, we want education rather than protection?
I was horrified—I hope I took his words down correctly—when the noble Lord, Lord Drumalbyn, a few minutes ago described to us how he envisaged the—I was going to say the "composition" of this Consumer Protection Advisory Committee. He said that it would be a body of part-time people brought together from time to time, with no secretariat of its own and staffed by the Department of Trade and Industry. Without wishing to be abusive to any Department, I would say that that is not 1511 an independent committee; it cannot be. I do not believe that you can have an independent committee the secretariat of which is staffed entirely by a Ministry, however fair they may try to be. I think that is quite impossible, and I should like to know what the Minister feels about it. I think that if you are going to bring together a body of part-time people from time to time it will be exactly what my noble friend Lord Diamond said—it will be so slow that you will not get any people of the right calibre to sit on the Committee.
Can the Minister tell us anything about the sort of status envisaged for this, I think, misnamed Consumer Protection Advisory Committee? How often is it to meet? I think that is important. Is this to be a committee which will meet several days a week so that it can really keep a grip on what is happening? Or is it to be called together monthly or bi-monthly to deal with what may have arisen? All of us who may have had experience of sitting on any public board which has an official secretariat—whether they be civil servants or from the Department concerned—knows that unless you are very wary you get so flooded with official papers that it becomes impossible to take a decision. It is just an avalanche, and a very good chairman is required to stop the avalanche coming. I want to know what is coming to this Protection Committee, and how often it wil meet. How effective and how powerful will this Committee be? Will the noble Lord tell us whether it will, if necessary, be able to call on any outside expertise? I mention that because I think I am right in saying that Lord Peddie's Committee has been more effective than any consultative council, largely because it has been able to call on outside expertise. I should like to know whether the Minister thinks it is likely that this Consumer Protection Advisory Committee will deem itself in need of outside expertise, and, if so, will it be able to call on any? I think that the pay of the members of the Committee is important because in this world what salary is offered matters. If this is to be a low-paid Committee, and if it is not to meet very often, I think that we are wasting our time. I should be glad if the Minister 1512 could disabuse me on most of those points.
§ LORD DRUMALBYN
I will try to deal with the points raised by the noble Baroness, Lady Burton of Coventry. First, she asked for my views on whether this should be a consumer protection advisory committee, or whether it should be a consumer education committee, as she suggested. The need for consumer education cannot be doubted, but it is not in the slightest bit envisaged that this Committee should be a consumer education committee. There is to be a consumer protection committee, because what will be coming before it will be Orders prepared by the Director-General to protect the consumer against unfair trade practice.
§ BARONESS BURTON OF COVENTRY
I do not wish to interrupt the noble Lord, and I am sure that he has quoted what I said, but not what I meant. I do not think this should be a consumer education committee; I think that the theme of the Committee should be education of the consumer and not protection. That is slightly different.
§ LORD DRUMALBYN
The theme of the Bill should be education—is that what the noble Baroness means? But surely not the theme of the Committee. I have outlined what will be the functions of the Committee which are directly protective in the narrow sense of the word. They are protecting the consumer. The Committee is designed to study the Orders placed before its members. This is what the noble Baroness was asking about—what are they going to do? How often will they meet? And what are they going to deal with? They will deal with these Orders; that will be their main function. They will be able to ask for further information and such assistance as they require from the Director General. He is the "outside expertise" on which 'he Committee will call. The noble Baroness quoted the example of the Post Office, but the Post Office is an operating organisation. It actually serves the consumer directly. Obviously, in such a case it;s necessary to call for expertise from outside the Post Office. But the Director General is the outside expertise. That is exactly what he will be appointed to provide. So there is, I should have thought, no need to call on outside 1513 expertise. The noble Baroness asked how often is the Committee to meet. That will depend entirely on the rapidity—or shall we say the frequency—with which the Director General produces Orders. When he produces an Order it will be for the Consumer Protection Advisory Committee to consider it. The Committee may consider several Orders at the same time. It is impossible to predict how often the Committee will meet, but it is not envisaged that they will be meeting two or three times a week. There is power for them to be paid, but it is not envisaged that it will be necessary to pay them, certainly in the initial stages; but they will of course receive their expenses, and the like.
These are people who are going to be asked to do a very important job, and it is not all that difficult to find people who are prepared occasionally to set aside whatever it may be—a day a month, or whatever it is—to put their services at the disposal of the community in the exercise of these very important functions. These are the answers. I realise that they are not how the noble Baroness conceived of the Consumer Protection Advisory Committee when she read of it, but this is the way in which their functions, and the frequency with which they will exercise them, are conceived. The mere fact that they are not going to meet very often does not mean that they will not be of high calibre. Quite the contrary: you get people of much higher calibre if you do not have to call on them so often, because people of high calibre are generally very busy people, and for this important function we want people of high calibre.
§ BARONESS ELLIOT OF HARWOOD
May I ask the Minister one question? If one puts something forward to the Committee and the Director General and the Committee does not agree, what happens? Does the Director General have the authority or does the Committee have the authority? Is the Committee directly under the Secretary of State and therefore the boss of the Director General, or is the Director General the boss of the Committee?
§ LORD DRUMALBYN
They are both independent bodies appointed by the Secretary of State, but they are independent of each other and in the relation- 1514 ship set out in the Bill; namely, that the Director, as I put it before, proposes, and the Committee approves, disapproves or modifies, and the Secretary of State disposes.
§ BARONESS ELLIOT OF HARWOOD
Could the Director put out an order and the Secretary of State approve that order without consulting the Committee at all?
§ LORD DRUMALBYN
No; this is the whole point. This is the check on his powers. The Committee must be brought into it. The Director General can make a recommendation to the Secretary of State for the Secretary of State to take action. He cannot make a recommendation to the Secretary of State for him to make an order without going to the C.P.A.C.
- Clause 3 agreed to.
- Schedule 2 agreed to.
- Clause 4 agreed to.
- Schedule 3 agreed to.
- Clauses 5 to 12 agreed to.
- Clause 13 [Meaning of "consumer trade practice"]:
- 5.42 p.m.
§ LORD DRUMALBYN moved Amendment No. 8:
Page 11, line 33, at end insert—
("( ) to methods of salesmanship empolyed in dealing with consumers, or").
§ The noble Lord said: I think this is an Amendment which will commend itself generally to the Committee. It has been considered necessary because there is some doubt whether "promotion" as defined in paragraph (c) of Clause 13 includes all oral or written representations as used in salesmanship. I am sure the Committee will agree that it is desirable that the Director should have the power to refer any undesirable sales practice to the Consumer Protection Advisory Committee, and that where they have the effect of the kind defined in Clause 17 he should be free to make proposals for orders under Part II of the Bill. I hope that, with that short explanation, noble Lords will be prepared to agree to this Amendment. I beg to move.
§ Clause 13, as amended, agreed to.
§ Clause 14 agreed to.1515
§ Clause 15 [Exclusion s. 14 in respect of certain services]:
§ On Question, Whether Clause 15 shall stand part of the Bill?
§ BARONESS PHILLIPS
With permission, with the Motion to leave out Clause 15 I will take the Motion to leave out Schedule 4, as these two are related. When the Minister was speaking earlier about the functions of the Director General, he mentioned that he was to keep under review goods and services supplied, and this is what we all applaud. That is why so many of us are delighted to see that this Bill has come before your Lordships' House. But I would suggest that nowadays shopping has become very sophisticated. We do not buy merely goods which we need in our homes; we do not buy merely food; we all have other services which we call upon. Many people have motor cars, which need to be serviced, and one could probably make a very long speech about the shortcomings of the servicing there. Many people use services connected with laundries; and many people use services connected with hairdressers. I could go on for a very long time. In addition, many people—in fact, almost all consumers at some stage in their lives—have to call upon professional services; the services of an architect, the services of a solicitor, the services of a barrister, and so on. So I think it would be quite wrong if we were to assume that our money is spent in merely one direction; and if we are talking about protection of the consumer it seems to me reasonable that, with this major piece of legislation, we should recognise that the consumer needs protection in many fields, and not merely those which deal with commercial goods and services.
There is a history behind the attempt to get this clause removed. This clause is the one which gives the professions—and the professions are named in the Schedule—exemption. On the whole, I do not like exemptions. I feel that if one is preparing an Act of Parliament one always has to be very careful about the groups that one exempts. But in this case there was an attempt made in another place to include the professions, and I think what it is important to recognise is that many of the people who spoke during the passage of the Bill in the Committee stage were themselves profes- 1516 sionals. Indeed, I suppose I might claim to be a professional, as a teacher, who was certainly at some risk in ordinary law. Every teacher is at risk every time she almost touches a child with a ruler although perhaps in enlightened schools it does not happen any more. But she is, certainly at risk in law of common assault. But it was noticeable that during the discussions in Committee a number of people who urged that the professions should be included in the Bill were in fact professional people themselves, because I think that, just as a good trader has nothing to fear, so does a professional who is carrying out his or her professional duties have nothing to fear, either. The Government were of course rather determined, because when the professions were put back into the Bill they were taken out again at a later stage. So I am attempting again to deal with the same point, because I believe very firmly that members of professions should be included in any Bill which speaks of the protection of the consumer.
Now it will be said outside your Lordships' Committee, if this goes through, that the professions consider themselves above the ordinary rules that apply to a trader. I noticed that the Minister, in replying to the debate, suggested that there was not any need to leave them in because, he said:Doctors, dentists and professions supplementary to medicine have social and individual responsibilities which everybody accepts go far beyond commercial interestsNo one would deny that. He said:Veterinary surgeons have a public duty for the maintenance of animal health which cannot be readily assessed in purely academic terms".Nobody would dispute that. He said:Architects have a special responsibility within their profession for safety and environmental considerations".In view of some of the things that have taken place recently, one wonders how far the architects concerned carried out this special responsibility, but that is another point. He said:Accountants have a duty to ensure company records are presented fairly to the public.and so on. He went through patent agents, surveyors and consulting engineers. But if this is the reason, that they have a sense of integrity and responsibility, which no one would deny, 1517 surely this applies equally to the trader. The Retail Trading Standards Association, a voluntary group, in this article about fair trading say:What have the members to fear when the Fair Trading Bill becomes law?And it says—which is exactly the sentiment that we all endorse—that those traders who carry out good trades practices which do not adversely affect the consumer have nothing to fear: in fact, the article is headed, "Nothing to fear but fear".
I should like to say that a sense of responsibility and integrity is shown by the many groups that have got together voluntarily, but are not exempt on that account: the Food Manufacturers' Federation; the manufacturers of electrical appliances, and the Association of British Travel Agents. The hairdressers have their own group; the launderers and dry-cleaners have their own group, and so on. These are all groups which exercise a sense of integrity and responsibility to the public. But this has not led to their exclusion from the Bill.
I am frequently approached, as no doubt many of your Lordships are, by people who have had quite disastrous treatment from professionals. I think it would he a retrograde step to leave this particular group out of the Bill. We have said many times that the retailer who is doing his job well has nothing to fear from legislation. Equally, the professional who is certain that he is carrying out his professional duties, which are not in conflict with the economic interests of the consumer, nor of health and safety in another context, has nothing to fear. I hope the Government will think again and not exclude this group, which in these days is concerned with consumers in many ways, from the Bill.
§ VISCOUNT HANWORTH
I should like to support the noble Baroness on this Amendment. I cannot see any reason why the professions should be excluded. One could admit at the start that they may have a slightly higher standard of ethics than is always found in commercial life. Let us grant that point. Nevertheless, it cannot be said that things are wholly satisfactory. Professions are notoriously reactionary: they often act, 1518 not wittingly but in fact, to the detriment of the consumer because they have not brought their thinking up to date. I do not want to quote instances, but one can think of the criticisms that have been made about solicitors and the failure of professionals to communicate. The same applies to some extent in the medical profession. Is everything satisfactory in our hospitals? Is everything satisfactory with our doctors? Are the professional ethics which they have, and which in the main have not changed over the years, up to date and ill the consumers' interest? The answer is very often, I am afraid, that some new air wants to be let in and they ought to be encouraged to rethink. That is really what one wants to do.
It is seldom that anybody, a corporate body or any other body, is considered as competent to be the sole judge of what it ought to do. We do not have this in Government. We have a Cabinet, yet we have a check on the abuse of power by Parliament. The same goes for this Bill. It seems to me quite extraordinary that we should completely omit professions, good as they are, from any scrutiny from outside. I very much hope that this Amendment, which I think it is vital to the future of this Bill, will be considered by everybody and, if necessary, taken to a Division.
§ LORD SOMERS
I think there is a great deal in what my noble friend has just said. Take a profession like the chartered accountants: I do not suggest for a moment that any of them have deliberate shortcomings, but there is no doubt that some are more able than others. I am fortunate in that I have an extremely able accountant, but I look back to days when I had one who was far less able. It seems to me that services such as these should not be exempt. Therefore I hope the noble Lord will seriously consider this Amendment.
§ 5.47 p.m.
§ LORD DRUMALBYN
Your Lordships may like me to intervene at this stage to say something on this important Amendment. We are dealing in Clause 15 with consumer trade practices, as defined in Clause 13, which are carried on only in the supply of services given by professions listed in Schedule 4. There are two sets of circumstances in which the clause 1519 will prevent a reference to the Consumer Protection Advisory Committee. The first is that the practice is confined to the supply of services by one or more of these professions, and the second is that a monopoly situation exists, or may exist, in relation to the supply of these services. The relevant definition of "monopoly situation", as noble Lords will have noticed, is included in Clause 7 and covers the supply of services of the description in question where these are to the extent of at least one-quarter supplied by a group of persons—in this case the members of the profession—who so conduct their affairs as to prevent, restrict or distort competition.
What this means is that if the supply of particular services is not limited to the professions in question, or if there is not a monopoly situation, a reference to the Consumer Protection Advisory Committee about a consumer trade practice in regard to them may be made. For example, if any members of a profession act as estate agents, who are not included in the Schedule, or as insurance agents, who are not included in the Schedule, any reference of a consumer trade practice in connection with the supply of estate agency services or insurance agency services will apply to professions as well as to any other groups of people engaged in them.
When we come to Clause 105(3), we shall there find that none of the services specified in Schedule 4 is to be included in a class of services described as designated services in an order made under Clause 103 bringing under control restrictive agreements relating to a class of services. Your Lordships will have noticed that it is intended under Part IV to make orders calling forward for registration restrictive agreements as to the supply of services, either one or more at a time, or all services with or without exception, and to designate the services in respect of which the restrictions are made. So you have the services, and the particular service that is designated.
The noble Baroness, Lady Phillips, argues, as I understand it, that consumer trade practices and restrictive agreements ought to be subject to public scrutiny in the professions no less than in any other group which supplies goods 1520 or services: and secondly, that they should be examined in the same ways. The noble Viscount, Lord Hanworth, said he thought it was right that the professions should be subject to public scrutiny. My right honourable friend the Minister for Trade and Consumer Affairs explained very fully in another place the policy of the Bill with regard to the professions. He emphasised that the Government have never contended that restrictive practices in the professions should enjoy statutory immunity from scrutiny. He pointed out that the only question that divides us is as to the machinery by reference by which the professions should be examined and scrutinised and that the Government thought the Monopolies Commission was the agency to which questions should be referred about the operation of professional monopolies.
Professional services have already been the subject of a very thorough survey by the Monopolies Commission. The Commission found, to use their words, that restrictive practices extend widely in the professions, are often complex and are found in great variety. The Commission's inquiry was made under a general reference under Section 5 of the Monopolies and Mergers Act 1965. In this broad context it was not possible for the Commission to say how far the practices in particular professions were justifiable. The Commission recommended that a series of specific references should be made to them, covering the supply of particular professional services. This is the way in which Parliament has proceeded throughout the whole history of monopoly and restrictive practices legislation. At first, under the 1948 Act, there was simply the Monopolies and Restrictive Practices Commission. Before a separate court to deal with restrictive practices was set up were a series of reports. These enabled the criterion to be formulated on which to judge whether or not restrictive agreements in the supply of goods were against the public interest. Then there occurred a further series of reports on commercial services which, together with the experience gathered in the examination of restrictive practices in the supply of goods, enabled the restrictive practices legislation to be extended by this Bill for commercial services. But so far there has been only this one general reference on the professions and the 1521 report which resulted, as I have said, recommended that the right course was to proceed by a series of references to the Monopolies Commission. I cannot advise your Lordships to go against this considered recommendation and insist that restrictive agreements in the professions specified in Schedule 4 should be liable to be called forward for registration under the restrictive practices legislation as extended by this Bill to commercial services.
I appreciate that this agreement does not apply in precisely the same form to references to the Consumer Protection Advisory Committee as well as to the Monopolies Commission—in theory they could go forward to both—but I would venture to remind your Lordships of the general role of the Consumer Protection Advisory Committee under Part II of the Bill. The Committee's primary task is to investigate consumer trade practices having the sort of adverse effects listed in Clause 17, and to advise on the extent to which these practices should be made criminal. Would it really be appropriate at this stage to envisage the application of this procedure to practices which are special to the professions? We are not here concerned with practices which are restrictive of competition but with those which are, if I may so put it, ethically neutral. The procedure is intended for practices which have the specifically detrimental effects listed in subsection (2) of Clause 17—
These are the practices that would be referred to the C.P.A.C. and on which Orders would be based.
- "(a)of misleading consumers as to, or withholding from them adequate information as to, or an adequate record of, their rights and obligations under relevant consumer transactions, or
- (b)of otherwise misleading or confusing consumers with respect to any matter in connection with relevant consumer transactions, Or
- (c)of subjecting consumers to undue pressure to enter into relevant consumer transactions, or
- (d)of causing the terms on conditions, on or subject to which consumers enter into relevant consumer transactions, to be so adverse to them as to be inequitable,".
I should be loath to believe that practices of this sort were prevalent in the professions. If they do exist they ought surely to be considered by the disciplinary machinery of the profession in ques- 1522 tion. If the profession became subject to an investigation by the Monopolies Commision, it would doubtless be exposed and commented on in the Commission's report. The Government thought it quite inappropriate to provide in addition for investigation by the Consumer Protection Advisory Committee. The Committee is specifically debarred from considering anything other than the economic interests of consumers: that is contained in Clause 14. Professional practices which may give rise to complaint may on examination be judged necessary to safeguard some wider objective of public policy than the client's immediate economic interest. The Consumer Protection Advisory Committee will be neither equipped nor empowered to consider these wider issues.
To sum up, if there are malpractices which exist both in commercial services and in the professions, Clause 15 will not debar the Director General from referring them to the Consumer Protection Advisory Committee. They will not be exempted. As to professional practices having the effects set out in Clause 17, we are doubtful whether they are at all common in the professions. Their members take pride in their ethical standards and particularly in the fiduciary relationship in which they stand to their clients. If these malpractices do arise in particular instances, the major professions have their own disciplinary bodies to deal with them. References of restrictive practices in the professions one by one to the Monopolies Commission would be likely to reveal whether or not they are against the public interest. So far there have been no specific references but just the one general reference. The Monopolies Commission have recommended that there now should be some, and my right honourable friend has already announced his intention to make at least three such references. In addition I should like to say to the noble Lord, Lord Somers, as my right honourable friend has also announced, that the noble and learned Lord who sits on the Woolsack and my right honourable friend the Secretary of State for Scotland intend to discuss with the Law Societies improvements in the arrangements for dealing with complaints against solicitors.
I hope I have made it plain that the professions are not, and will not be, 1523 exempt from public scrutiny. I hope I have also shown your Lordships that there are convincing reasons for not permitting references of consumer trade practices special to the professions, at least for the present, bearing in mind that we shall be getting reports from the Monopolies Commission on the references that are made.
§ 6.7 p.m.
§ BARONESS PHILLIPS
I thank the Minister for that very long explanation, part of which left me completely confused, because he seemed to say that the complaints could be dealt with anyway—and if they could be dealt with, then I am a little confused as to why we need an exclusion clause. But the noble Lord referred specifically to the fact that some of the practices would not be those of professions. In this particular batch of professions—it is a very long list—in Schedule 4, we see physiotherapists and chiropodists. Quite recently I have been approached by people concerned with what might roughly be described as the beauty massage business. I suppose they are by profession physiotherapists—what would they be described as? The particular group who approached me were people who had taken training and held degrees. They were very disturbed by the fact that untrained people were not only setting up their own establishments, but also setting up schools where they purported within three weeks to turn out people who could give these particular services; in other words, I would say they were carrying out the trade practices with which we are particularly concerned. If in fact we can deal with the professions in any case under the monopolies or trade restrictions legislation, it seems ludicrous to exclude them from this section of the Bill. We come back to the point that if there is no need for them to be excluded because we are going to deal with them anyway, why take the trouble to put this clause in? The Minister did not really explain that to me.
§ VISCOUNT HANWORTH
I had a little difficulty in following the Minister, but it seemed to me that his argument was, first of all, that the Monopolies Commission was capable of doing anything that might be necessary in this direction. The answer to that is that they necessarily work very 1524 slowly and do not deal with the more day-to-day problems which are of importance. The second point is that I think he feels that the headings in Clause 17 of the Bill are not really applicable to the sort of examination that one might want to give to the various practices which immediately affect the consumer in the professions. To some extent I agree with that; but, taking the point raised by the noble Baroness, Lady Phillips, if it is unlikely to affect the professions except in extreme cases let us leave it in the Bill and it can be dealt with in that way. It would not be very difficult at the next stage to put in another heading under Clause 17 so that we could look at the things we want to so far as the professions are concerned. Therefore, as a first step, let us get this Amendment agreed to, and then the Government will no doubt suggest how we might then proceed to cover the matters of concern affecting the professions rather more appropriately.
§ BARONESS ELLIOT OF HARWOOD
I listened with great interest to my noble friend's reply, which I found rather difficult to understand, thinking entirely from the point of view of a consumer—that is, someone who requires a service from one of these professions. He may get a poor service or possibly no service at all, or a service which is thoroughly unsatisfactory. How does that person get any redress? He will not go to the Monopolies Commission, because the Commission is a long way away from the ordinary man or woman who is using an architect or having accounting or auditing services, or anything in this long list. Can the consumer bring his complaint about the profession under any part of this Fair Trading Bill, or has he no method of getting at either the Director or the Committee and can therefore go only to the Monopolies Commission or one of the other complicated systems which my noble friend kindly tried to explain to us?
I may be dense about this matter, but the whole point of consumer protection is that it is to help individual people, the ordinary consumer—you or me—and if one has to get together a lot of complaints about a particular service and then take it to the Monopolies Commission, that is too difficult for the ordinary person. I had hoped that the ordinary person would be able to take his or her 1525 complaint about the professions to some part of an organisation under this Bill. It will be a great pity if he cannot do so. If, on the other hand, as the Minister says, there are ways other than the Monopolies Commission, I should be happy to hear about them; but at the moment I feel rather unconvinced about the interest of the ordinary person—not a very grand person, but a humble person who has to use the professions. Those are the people in whom I am interested regarding this Bill.
§ VISCOUNT MASSEREENE AND FERRARD
Do the Advisory Committee have the power to inquire into the charges levied by nationalised industries? That may be a very foolish question, but I have not studied this Bill and it occurred to me that as the object of the Bill is to protect the consumer it seems a fair enough question. I have sympathy with the Amendment regarding the professions. They appear to come off lightly under the Bill. I have occasionally suffered from bad advice from the professions. Once my father was robbed of a considerable sum of money by a solicitor. I do not think we should let the professions off too lightly. Regarding the Amendment, I am 50-50 at the moment and should like to hear my noble friend's reply.
§ 6.15 p.m.
§ LORD DRUMALBYN
It would be very difficult to decide what was bad advice, because, to start with, professional people do not always agree on what is good advice and what is bad advice. I do not think it would be right for the Bill to try to pursue that. The proof of the pudding, unfortunately, is very often in the eating so far as advice is concerned. We have all suffered from bad advice at one time or another. The professions give the best advice that they can, and one goes to a good lawyer or a good doctor if one can.
§ BARONESS PHILLIPS
I hesitate to intervene on this matter, but for the benefit of the noble Lord, Clause 17 says just that. It says:Where it appears to the Director that a consumer trade practice has the effect.. of misleading consumers...If you give that advice, surely you are misleading the consumer.
§ LORD DRUMALBYN
If it is wrong advice you are misleading them—if it is technically wrong. It is difficult to know what the law is in many cases. If you negligently give bad advice, in that sense you can be in trouble. By bad advice, I took my noble friend to mean advice with which other people did not agree, or other professionals did not agree. It is difficult to say what is good advice or bad advice. Some can be definitely wrong. Perhaps I am taking the question of the noble Baroness too seriously. That is obviously not what was intended in Clause 17(2) which says:Where it appears to the Director that a consumer trade practice has the effect.. of misleading consumers …I hardly see that consumer trade practice of this kind would be to give bad advice, or that the giving of bad advice could be a consumer trade practice. We are dealing with the economic side here, as I was trying to show before, and that is one of the reasons why it was a little difficult to include the point which my noble friend Lady Elliot raised regarding poor service. In Clause 17 we are dealing with specific consumer trade practices—they have to be practices.
The noble Baroness asked what kind of complaint could be taken. The complaints are those set out in Clause 17; for example, that they have been subjected to undue pressure to enter into a relevant transaction, or the terms and conditions in which they found themselves obliged to enter into a transaction were so great and adverse as to be inequitable, or people were misled or confused in the course of the transaction. These are clear points. As I have said before, we are not concerned with the quality of goods or the quality of service. We are concerned with what is said about them and the terms on which the goods are supplied and delivered. It is for that reason that we do not feel it is appropriate to bring the professions into this matter where to such a large extent their terms are often fixed. In fact, it can be represented as a restrictive practice, and the question is whether that restrictive practice has more advantages for the public than disadvantages. This is something which has to be looked at by the Monopolies Commission, so it does not seem to me the sort of thing 1527 that, should be referred to the Consumer Protection Advisory Committee.
§ BARONESS ELLIOT OF HARWOOD
I do not want to interrupt the noble Lord, but why should the same not apply to the professions as used by the ordinary people?
§ LORD DRUMALBYN
The primary answer there is that the great majority of the professions referred to in Schedule 4, at any rate, have their own disciplinary committees to which complaints can be referred, and that is where the complaints should go. In a case of grave negligence I imagine it would be a matter that could be taken to the court.
§ BARONESS PHILLIPS
That is one of the particular objections which the ordinary consumer has: that if you refer the case to a professional body which is made up of other members of that profession and no one else—they do not have any consumers on those—they are judge and jury in their own case; and everybody knows how the professions cling together. If the noble Lord can tell me of one doctor who will say that another doctor has given a wrong diagnosis I should be very interested to meet him. Regarding the question of misleading the consumer, I described on Second Reading the case of the accountant (and I beg the pardon of the noble Earl for this) who gave a businessman bad advice and said he was bankrupt, and when the unfortunate man came out of hospital and did another check he found he was not in fact bankrupt. Now he was told that the only recourse he had to deal with that gentleman was through law. He was not prepared to spend time or money to deal with him. Nevertheless, I should have thought that that was a clear case that could have been referred to the Consumer Protection Advisory Committee.
§ LORD DRUMALBYN
That is not so. The Consumer Protection Advisory Committee is going to deal with orders that come before it. Clause 15 provides that an order in respect of a practice which is particular and special to a profession cannot be referred to the Consumer Protection Advisory Committee. That is the extent of the exemption that is given. If it is not special, if there is a general 1528 practice that affects a large number of services and the profession engages in that service in addition to the special services, then it can be caught. The special ones are not caught for the time being. So far as the question raised by my noble friend Lord Massereene and Ferrard is concerned, I think his reading may by now have got as far as Clause 16, and he will find the answer there. I hope that will answer his question.
§ THE LORD BISHOP OF SALISBURY
Perhaps the Minister can reassure me that of the professions who give wrong advice and may be in trouble one at least will be exempt. The noble Baroness said that professions cling together and you never find one member disagreeing with another. I can assure you that that is not so in my profession—honest to God it is not!
§ LORD DRUMALBYN
If the right reverend Prelate has looked at Schedule 4 he will see that the services of ministers of religion in their capacity as such are excluded from Sections 14 and 105. I cannot go into the ecumenical or other aspects of the matter.
§ Schedule 4 agreed to.
§ Clause 16 [Restriction on references under s. 14 in respect of certain goods and services]:
LORD DRUMALBYN moved Amendment No. 9:
Page 12, line 41, after ("goods") insert ("or services")
§ The noble Lord said: I should like to take with this Amendment No. 13, to leave out lines 10 to 32 on page 108. The first Amendment is a paving Amendment for the Amendment to the Schedule. May I briefly explain that the point here is that the definition in Part II of Schedule 5 was intended to cover all those forms of supply in which the Post Office has statutory monopoly rights under Sections 24 and 28 of the Post Office Act 1969. It has been found that the definition is defective. It does not cover the Post Office 1529 powers in relation to telecommunications services or generally with regard to the installation and maintenance of equipment, merely to supply. The Amendment to Part II of the Schedule extends the definition accordingly. I beg to move.
§ THE EARL OF LIMERICK moved Amendment No. 10:
Page 13, line 9, at end insert—
("( ) The Secretary of State may by order made by statutory instrument vary any of the provisions of Schedule 5 to this Act, either by adding one or more further entries or by altering or deleting any entry for the time being contained in it; and any reference in this Act to that Schedule shall be construed as a reference to that Schedule as for the time being in force.")
§ The noble Earl said: This Amendment picks up a point that was missed in the Bill as drafted. If your Lordships will refer to Clause 50 (5) you will see a power by order to vary the provisions of Schedule 7. There is no equivalent power in the clause with which we are now concerned to vary the provisions of Schedule 5. Yet for certain purposes the two Schedules have a quite identical effect. It is appropriate that the same power to vary should apply in each case, and that is the object of the Amendment. Although Clause 16 itself refers specifically to references to the Consumer Protection Advisory Committee, the Schedule to which it gives effect is also operative for the purpose of monopoly references. Taken together, Schedules 5 and 7 list the goods and services outside the Director's power to refer to the Monopolies Commission. The common feature of the entries in Schedules 5 and 7 is that there is either a statutory monopoly or in some other way normal competition is excluded or limited by Statute. In relation to the nationalised industries' goods and services, listed in Schedule 5, this is quite obvious.
§ Schedule 7 also includes a number of commodities with statutory monopoly provisions which may be rather less familiar; for example, goods covered by agricultural marketing boards' schemes. If there are changes in the regulatory Statutes, for example, changes in the coverage of marketing schemes, it will be necessary to vary the Schedules to match. The power in Clause 50 to vary by order will avoid the need for specific legislation in each 1530 case. The only purpose of the present Amendment is to provide an equivalent power for Schedule 5, and I commend the Amendment to the House.
§ Clause 16, as amended, agreed to.
§ Schedule 5 [Goods and Services referred to in Section 16]:
§ 6.29 p.m.
LORD DRUMALBYN moved Amendment No. 11:
Page 107, line 45, leave out ("rail or air") and insert ("or rail").
§ The noble Lord said: With the permission of the Committee I will speak to Amendments Nos. 11, 12 and 22 together. The attention of the Government has been drawn to the fact that the inclusion of the carriage of passengers and goods by air in Schedule 5, thereby bringing them within the scope of Clause 16, creates a potentially anomalous situation as between the public and private sector airlines which these Amendments seek to correct. Clause 16 operates only in relation to public bodies whose members are appointed by Ministers. Thus the Director could, as the Bill stands, be required to consult Ministers before referring to the Consumer Protection Advisory Committee a consumer trade practice carried on by a State-owned airline, but no such check would apply to references affecting private sector airlines. The Civil Aviation Authority's general responsibilities in relation to civil air transport apply equally to the public and to the private sector. I would expect the Director to keep in close touch with the Authority over consumer problems affecting civil aviation. Subject to this, there is no reason why the Director's powers to make references to the Consumer Protection Advisory Committee on civil airlines should be restricted by the terms of the Statute. Taking the reference to aviation out of Schedule 5 will remove any possibility of discriminatory treatment. I beg to move.
Page 108, line 1, leave out ("or air").—(Lord Drumalbyn.)
Page 108, leave out lines 10 to 32 and insert—
§ ("Description of goods or services
§ (1)Apparatus or equipment used, or constructed or adapted for use, for the purposes of or in association with any such system as is mentioned in paragraph 7 of this Schedule.
§ (2)The installation or maintenance of any such apparatus or equipment.
§ Form of supply
§ Supply to persons who are subscribers to a service provided by the Post Office which constitutes or forms part of any such system, in their capacity as subscribers to such a service.").—(Lord Drumalbyn.)
§ Schedule 5, as amended, agreed to.
§ Clause 17 [Reference to Advisory Committee proposing recommendation to Secretary of State to make an order]:
§ 6.32 p.m.
§ BARONESS BURTON OF COVENTRY moved Amendment No. 14:
Page 13, line 40, at end insert—
("( ) Where it appears to the Director that any person, or any bodies appearing to him to represent substantial numbers of such persons, have a substantial interest in the subject matter of a reference, the Director shall, if practicable, inform them of such a reference.").
§ The noble Baroness said: I beg to move the Amendment standing in my name. In the first line of the Amendment as printed, the word, "person" should be in the plural: it should be "persons". I apologise for the typing error. This Amendment is a very modest one and I should think that the only possible objection to it is that the Director General will in any case do what it bids him to do, and moreover at a more crucial time; namely, before he refers a reference to the Consumer Protection Advisory Committee. This may turn out to be the case; none of us can be certain. We can, though, say some things now with certainty.
§ First, the powers vested in the Director General by this Bill are formidable and wide ranging, and, secondly, we all know how easy it is in framing a Bill or a law advertently to do much more or much less than we mean. I believe that we should be failing in our work here to-day if we did not give the Director some in- 1532 dication of ways in which he might avoid possible pitfalls. The need to alert interested parties to any reference is already acknowledged in Clause 17(4), but this is inadequate. Is any consumer, any more than the small business, going to comb each issue of one of the three Gazettes to see what references may be published in them? How many of us read the Gazette regularly, if at all? And I think that to reply to what newspapers might publish could well be to encourage the thing which those in another place felt most undesirable, and that is trial by newspaper before or while a serious matter is being considered.
§ This Amendment in my name is not much more than a guide to the Director. It places on him no greater burden than the proper exercise of his functions would demand. It acknowledges that there may be considerable practical difficulties in informing all those with a substantial interest in the subject matter of a reference, and it provides him with relief in these cases. Having said that this Amendment does no more than tell the Director what Parliament in any case expects of him, I should like to add that I think its presence within the Statute would have one effect that would assist the work of the Director. I believe that it would strengthen the hands of those associations which now with very little help endeavour to set trading standards and help the consumer.
§ In another place there was much discussion of ways in which the Bill might be amended to help those charged with enforcing codes of conduct or codes of practice, and no direct means was found possible. I think we have found it more fortunate to-day in that the noble Lord, Lord Drumalbyn, without obligation, has undertaken to look at that particular matter again. But clearly I think this Amendment would prove a practical and indirect way of helping here. Obviously, the Director could not consult every individual interested in a reference, but he could and would consult those interested bodies who were already endeavouring to enforce standards of conduct. This, in turn, would encourage membership of such bodies, and hence ease the burden on the Director. Finally, as the Committee will have noted, the drafting of this Amendment relies heavily on the language already contained in Clause 1533 81(1)(a). There the Consumer Protection Advisory Committee are charged with considering evidence from interested persons or bodies representing substantial numbers of such persons. My Amendment goes some way to see that the Consumer Protection Advisory Committee indeed get the evidence they are required to consider. I beg to move.
§ LORD DRUMALBYN
First, I would say to the noble Baroness that it is normal for Gazettes to carry Government announcements of this kind and it seems that this is a natural method of communication, since the Press, and particularly the trade Press, make it their business to study these. I find it difficult to believe that a reference published by the Director on matters which may very well have been of public comment in newspapers would not be picked up by the Press, and that in that way those concerned would get to know of them. But, in any event, surely it must be the case—I should have thought it was bound to he so—that the Director will have been in touch with those concerned before he even gets as far as the position of making an order. In the course of studying the matter, with a view to making an order, or with the possibility of making an order, he is bound to get in touch with bodies concerned and ask them how they conduct their affairs. I do not mean that he is compelled by the Bill to do so, but I should have thought this would be the normal way of proceeding.
Once the order gets to the Consumer Protection Advisory Committee, that Committee, as the noble Baroness has properly quoted, under Clause 81, have to take into consideration representations made to them. I should have thought that the bodies themselves would not be slow to make representations to the Committee. I do not see quite how one could bind the Director General to do exactly as the noble Baroness says, to inform everyone who appears to represent a substantial number of persons of his intention to make, or when he makes, a reference. I am so sure that this could not possibly have escaped the attention of the bodies concerned that I do not think it worth while placing what might be a difficult duty upon him in this way. What I am saying is that I am sure before ever the order is made the Director will have been in touch with the trade associations con- 1534 cerned. It would be very odd indeed if he were to proceed to make an order without consulting the trade association or the body representing a substantial number of persons. So there is no doubt that by the time he makes the reference they will be alerted to the possibility of a reference and will be waiting with more than a little anticipation to see what happens.
§ BARONESS BURTON OF COVENTRY
I am much obliged to the Minister and, on that assurance, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
- Clause 17 agreed to.
- Clauses 18 and 19 agreed to.
- Schedule 6 agreed to.
- Clauses 20 to 28 agreed to.
- Clause 29 [Power to enter premises and inspect and seize goods and documents]:
§ 6.42 p.m.
LORD AIREDALE moved Amendment No. 15:
Page 18, line 28, after ("(a)") insert ("if he has reasonable cause to suspect that an offence under section 23 of this Act has been committed")
§ The noble Lord said: Perhaps we can take Amendments Nos. 15, 16 and 17 and discuss them together because. Amendments Nos. 16 and 17 are both drafting Amendments which are consequential upon Amendment No. 15.
I think I can deal with this Amendment quite shortly because I spoke on this point at some length in our Second Reading debate. Your Lordships will notice that paragraph (a) of Clause 29 (1), unlike paragraphs (b) and (c) does not begin with the words "if he has reasonable cause to suspect that an offence has been committed". Really what paragraph (a) amounts to is a charter to officials to go prying, not only into shops open to the public but into stockrooms behind the shops and into warehouses behind the stockrooms. And it does not even stop there, because if your Lordships will notice the words at the end of the paragraph, the official may
enter any premises other than premises used only as a dwelling".
§ I emphasise the word "only". So far as I can see, those words could give 1535 rise to this situation: supposing there is a shop and the shopkeeper lives in a flat above the shop and he has a spare room in his flat which he uses as a stockroom for the shop. This must be a very common thing; there must be hundreds of thousands of shops in this situation. A weights and measures inspector, acting under this Bill when it becomes an Act, comes along, and he has no suspicion of any kind that anything is wrong. He walks into the fiat above the shop, the shopkeeper says: "What are you doing in my flat?", the inspector says, "I am going to that stockroom over there to inspect the goods in it". The shopkeeper says, "Yes, but you cannot come walking into my flat", and the inspector says, Oh yes, I can. Just you read paragraph (a) of Section 29(1). I can go into any premises other than premises used only as a dwelling, and your flat is not used only as a dwelling because you have a stock room in it, so I can go there and inspect the goods".
§ I give notice that if this Amendment is not agreed to this evening, when we come to the next stage of the Bill I shall table an Amendment to leave out the word "only". The effect of that will be that an inspector, acting upon no suspicion at all, will simply not be allowed to walk into a shopkeeper's private flat above the shop just because he would like to go and inspect the goods in the stockroom. I think practically everybody in England would say it is perfectly right that if he has no suspicion he shall have no right to go into a shopkeeper's private apartment, even if there is a stockroom somewhere in the place.
§ But we need not discuss that possibly grotesque situation; let us keep to random inspections in stockrooms and warehouses. I suppose I shall be told that this paragraph reproduces a paragraph that appears in the Trade Descriptions Act of 1968. The Minister is smiling. That is some sort of an argument, but it is not a perfect argument. If that argument is always used we have only to make one mistake in legislation and if we reproduce the section containing that mistake in subsequent legislation the effect will be that we shall perpetuate the mistake. So that is not a perfect 1536 argument. But apart from that I think times have changed even in the five years since 1968, when the Trade Descriptions Act was passed. In the last five years we have become much more conscious and wary about the rights of officials to go prying and investigating among people's private affairs, including the private business affairs of business people and traders.
§ I do not believe that the power that is given in paragraph (a) would ever be used by an sensible official, for two reasons: first, because I think he will be much too busy ever to want to make random inspections of goods where he has no suspicions of any kind against the trader, and secondly, if he were to be so foolish as to exercise these powers he would very soon find that he was the most unpopular man among the shopkeepers in that neighbourhood and he would get no co-operation whatsoever from the shopkeepers in carrying out his investigations.
§ There is a case in the papers at the present time which I need not mention in detail, except to say that it is an object lesson in how difficult it is to carry out any kind of investigation if the people among whom you are carrying out the investigation do not wish to co-operate. Therefore I suggest that it is not sensible to give a power to officials which they would in no circumstances want to use, and when they would be acting most foolishly if they sought to exercise those powers. I suggest, therefore, that the power to act under paragraph (a) should be a power which would exist only where the official concerned had reasonable cause to suspect that an offence had ben committed. I beg to move.
§ THE EARL OF LIMERICK
The noble Lord, Lord Airedale, has such a reasonable and pesuasive way of proposing his Amendments that it makes him difficult to resist. But resist him I fear I must, for the following reason. He will not be surprised if I refer him, as he himself made allusion to it, to the Trade Descriptions Act 1968 and particularly to Section 28(1) on which these provisions are modelled. The point is quite simply that if this Part of the Bill is to be properly enforced, the officers who are duly authorised for the purpose must be free to make routine checks as well as to act after a complaint has been made 1537 which gives them specific cause for suspicion. That is the principle on which the powers of inspection under the 1968 Act have been operated. If these Amendments were adopted, they would place a serious obstacle in the way of proper enforcement of these important provisions since their effects would be to prevent such routine checks and to allow an inspection only after the receipt of a complaint or the result of a test purchase had given the inspector direct cause to suspect that an offence had been committed. That, we feel, would be to weaken the consumer protection effect of the Bill. I am sure that it will not have eluded the noble Lord that this clause does not give to an authorised enforcement officer the power to force an entry. He can do that only by applying for entry, except of course under the conditions laid down in subsection (3), where the prccedure that has to be gone through for an application to a magistrate for the right to enter is clearly spelled out.
§ LORD AIREDALE
I did not say "force an entry". The paragraphs says that he may,enter any premises other than premises used only as a dwelling;".
§ THE EARL OF LIMERICK
Yes, but irrespective of his right to be there he may not force an entry for the purpose. So he could not be found wandering around without the knowledge of the shopkeeper who lived in the flat above as he would have to apply to the shopkeeper for admission. These powers are closely similar—for all intents and purposes they are identical—to the powers which inspectors have been enjoying under the Trade Descriptions Act and the Weights and Measures Act. I do not think that there can be any argument for applying restrictions to the powers of inspection under this Bill that would not apply equally to the inspections under those Acts. It would be a rather serious situation if the same officers in the pursuance of powers of inspection with which they are charged under different Statutes should have to carry out their duties in a different manner. If these Amendments were accepted they would have constraints applied to them in the Fair Trading Bill which would not apply in the terms of the other Statutes. The best assurance we can have on this matter is that the 1538 other Acts that I have cited have been on the Statute Book for a number of years and one has to look very hard indeed to find cases of complaint against the conduct of the enforcement officers, let alone complaints which one feels have much substance in them. For those reasons, I feel unable to accede to the powers of persuasion of the noble Lord, Lord Airedale. This would represent a serious weakening of the enforcement powers of this Part of the Bill and I ask him, therefore, to reconsider his Amendment.
§ LORD AIREDALE
The Minister's argument does not allow of any consideration being given to the point that I am making that times change and that in the last five years all of us have become concerned about the power of officials to pry into people's private affairs—whether they are private individuals, or traders in their private trading affairs. We have been concerned about the way computers are used. There is a great build-up of concern about that. There is a great deal more concern about this kind of thing than there was even in 1968, five years ago, when the Trade Descriptions Act was passed. To crystallise something and to say that it must be repeated in subseqent legislation for ever, and that we must never recognise that times and feelings change upon these topics, is hopeless. You cannot go on for ever with the argument that because a similar clause to this one was satisfactory in legislation some years ago, then it is bound to be satisfactory now.
Turning from that to the specific point about the dwelling above the shop, I know that the inspector does not have power to force an entry. Of course he does not; but the situation in practice is that the door between the shop and the flat is probably open, and it probably usually is open during business hours, daylight hours, and the inspector simply wanders up into the flat. He does not break in or force an entry; he wanders into the flat and the shopkeeper says, "You are not entitled to come into my flat." But the inspector says, "Oh yes, I am, because the only premises I am not entitled to enter are premises used only as a dwelling, and if you have a stock room up here I can come through your flat to get to your stock room to inspect your goods, even although I have 1539 no suspicions against you whatever." I hope that I have made the point clear.
I think that the proper course for me to take now is to withdraw this Amendment and to underline once more that when we come to the next stage I shall move to omit the word "only" which will mean that even if there is a stock room in the flat above the shop the inspector will not be allowed into that flat without the consent of the shopkeeper. As I said before, I believe that everybody in England will say that if there is no suspicion against the shopkeeper then it is right that those goods should not be inspected at random if it means the inspector walking through the shopkeeper's private flat. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 6.58 p.m.
§ LORD DRUMALBYN
I do not know whether the noble Lord, Lord Airedale, wishes to take his next Amendment before we adjourn for dinner, but on the supposition that he will be more than a minute or two, I suggest that now would be the appropriate time to resume the House.
LORD AIREDALE moved Amendment No. 18:
Page 18, line 39, at end insert ("but he may not, for the purpose of taking such copies, connect any device to the electricity supply to the business premises without the consent of a person carrying on or employed in the business").
§ The noble Lord said: This Amendment arises out of a case which came to my notice where certain officials—I think they were Customs officials, but I am not quite certain—descended upon a business premises. They brought with them their electrical copying machine, plugged it into the electricity supply of the business, and then spent hours taking copies of voluminous documents using the electricity supply of the premises. The occupier of the premises, of course, was not at that time charged with any offence. I do not 1540 know whether he ever was charged with any offence; it was a mere case of suspicion. It seems to me that this is a practice which ought not to be acceptable and that it should be made clear that the electricity supply of a business is not available to be used in this way by officials who want to take copies of the books of the business. I appreciate, of course, that the occupier may be only too pleased to have the copies taken in his own premises, rather than have his precious books taken away, in which case he can give his consent: but the purpose of the Amendment is to say that no right is conferred on the official to plug into the electricity supply of the business of the owner. I beg to move.
§ THE EARL OF LIMERICK
I thank the noble Lord for his brevity in moving the Amendment, and I may be even more brief in responding. I think I shall be able to reassure him on this point. The present subsection, which again is in identical terms to Section 28 of the Trade Descriptions Act 1968, empowers an enforcement officer to take copies of books and documents, but it does not empower him to do so mechanically by means of electrical copying equipment. If he wishes to use such equipment he must seek permission. Therefore, although I fully appreciate the purpose of the Amendment, it is in fact unnecessary. The officer could proceed, as he normally would, by taking manuscript copies, or, as the noble Lord suggested, asking permission to make copies on the premises if that were more convenient; but as the law now stands, I am advised that there is no question of the enforcement officer's having power to take power.
§ Amendment, by leave, withdrawn.
LORD AIREDALE moved Amendment No. 18A:
Page 20, line 12, after ("them") insert ("at least").
§ The noble Lord said: This is to insert the words "at least" on page 20 at line 12. The purpose of this Amendment is to disabuse the official concerned of the idea that all he has to do in any case is to leave the premises merely as effectively secure against trespassers as he 1541 found them. No doubt premises are sometimes found by inspectors to be very insecure indeed, and by bolting a door or latching and fastening a window they can be made by the inspector very much more secure. It is not only a question of the occupier of the premises losing his goods if they are burgled—one might say that would serve him right. But if there is a burglary, police time and manpower becomes involved; there may be prosecution and the time of the courts is taken up. The noble and learned Lord the Lord Chancellor is here and would, I think, tell your Lordships that the criminal courts are badly overburdened with work. Great public expense is likely to be caused. Therefore it is surely only right that an inspector should, in appropriate cases, without going to undue pains, make premises more secure by taking simple precautions to prevent burglaries. I beg to move.
§ THE EARL OF LIMERICK
The Amendment would not materially alter the effect of the subsection. As present worded, the subsection already carries the implication that the requirement placed on enforcement officers is no more than the minimum requirement. It would clearly be unreasonable to place a statutory obligation on enforcement officers to leave premises more secure than when they found them. But enforcement officers do, of course, take great care to ensure that premises are securely locked up. In many cases in practice it means that they are left more secure than the enforcement officers found them. The present wording of the subsection will in no way inhibit enforcement officers from taking all reasonable steps to ensure that the premises are properly secured when they leave.
§ LORD AIREDALE
I do not think the Amendment has the effect the Minister thinks it has. But I think your Lordships are anxious to adjourn, and I will not go on with the argument any further. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ LORD DRUMALBYN
It is suggested that we adjourn the Committee now. I suggest that we resume in half an hour's time at twenty-five minutes to eight. I 1542 beg to move that the House do now resume.
§ Moved, That the House do now resume.—(Lord Drumalbyn.)
§ On Question, Motion agreed to and House resumed accordingly.