COMMONS AMENDMENT (Hansard, 14 May 1987)

§ Lord Lucas of Chilworth
My Lords, I beg to move that this House do agree with the Commons in their Amendments Nos. 3 and 4 en bloc. The House will recall that when the Bill was passing through your Lordships' House we debated at some length the issue of what kind of legal status the code of practice on price indications should have. As it then stood the Bill provided that compliance with the code should be a complete defence to a charge of giving a misleading price indication. Many of your Lordships took the view that the status proposed by the so-called concordat was preferable. That is, joining the National Consumer Council, the Retail Consortium, the Local Authorities Co-ordinating Body on Trading Standards and the National Federation of Consumer Groups.
In the light of the views expressed by your Lordships I undertook that we would consult further with interested parties on this matter. At that time I made it clear that my honourable friend would bring forward any necessary amendments to reflect the outcome of the consultations in another place since it would not be possible to complete the consultations before the Bill completed its passage through your Lordships' House.
In the event the consultations revealed a consensus in support of the status proposed by the concordat, and my honourable friend the Parliamentary Under-Secretary of State for Consumer Affairs announced the Government's intention to lay amendments to achieve this status during the Bill's Second Reading in another place. These amendments achieve what the concordat sought; that is, contravention of, or compliance with, the code will tend to establish whether or not an offence has been committed but will not be conclusive.
Failure to comply with the code will not be an offence, as I think the amendment makes clear. However, it will be a relevant factor for the court to take into account in determining whether a price indication was misleading. If the court is satisfied that a misleading price indication has indeed been given, then the defences provided by the Bill may arise. The code may, in some circumstances, be relevant to some of these defences, in particular the due diligence defence provided by Clause 39.
In these circumstances the amendment will also enable compliance with, or contravention of, the code to be taken into account by the court in determining whether or not the defence has been established. So a trader who complied with the code would not have a complete defence, but he would be very unlikely to be 790 convicted of an offence. I believe that it will only be in the very unusual circumstance that an enforcement authority will bring a prosecution against a trader who has complied with the code's relevant provisions.
In the light of these considerations I believe that the status given by this amendment would give honest traders almost the degree of confidence that would have followed from the Government's own proposals. However, should, if I may use the expression, rogue traders find any loophole in the code, which can be exploited to give a misleading price indication, the courts will now have the opportunity to convict in appropriate circumstances. There will therefore be real incentives for traders to comply with the code, which I am sure we can all agree is the desirable outcome.
Given the extent of support indicated for this alternative in both Houses and outside Parliament, and the nature of that support, coming as it does from those who will be most closely involved in operating the new legislation, I think that this amendment is the most appropriate way in which to proceed.

§ Lord Williams of Elvel
My Lords, we are grateful to the Minister for explaining the reasons that the Government introduced this amendment in another place and why we are now being asked to consider these Commons amendments. Your Lordships will be aware, as the Minister says, that this was the object of considerable discussion in your Lordships' House at, I think, all stages of the Bill.
I think that on Third Reading of the Bill in this House we moved an amendment in order to allow us proper time to discuss any amendments that the Government might put down in the other place because, as the noble Lord rightly explained, the Government felt that they were unable to reach a decision while the Bill was with your Lordships, and they felt that a proper decision would be taken after consultation and amendments moved in another place.
When they took this decision I think that we on this side—and I hope I can speak for noble Lords on all Benches on this side—felt that our proper course of action was to make sure that we were able, by procedural means, to have a full discussion of what eventually came from the other place.
I understand what the noble Lord is saying: that the Government have decided, after consultation, that the concordat is the right way to go about it, and I shall not quarrel with that. Nevertheless, failing a full discussion, which I was rather expecting had not external events intervened, I should like an assurance from the noble Lord that the code of practice referred to in Commons Amendment No. 3 will not be the code that we saw when we were discussing the matter in your Lordships' House at various stages of the Bill, but that it will be a code which is redrafted in order to achieve, first, clarity, and secondly, consistency with Amendment No. 3 before your Lordships at the moment. If the Minister can give us that assurance, I shall be happy not to oppose this amendment.

§ Baroness Burton of Coventry
My Lords, the Minister will remember that during our discussions on this point I took strong exception to the fact that this House was not able to discuss the matters which had been referred to the concordat, particularly in view of the fact that I think the Government have twice refused to accept the views put forward by the concordat, which they could have discussed in this House.
As the Bill started in this House, I felt that it was the right of your Lordships, never mind the duty, to be able to discuss these matters relating both to the code of practice and the misleading prices. Although I am glad that apparently the Government have now accepted what the concordat has put forward, I should like to register once more my regret that this Hous was not able to play its full part in the deliberations, which it should have been able to do.

§ Lord Lucas of Chilworth
My Lords, in acknowledging the noble Baroness's feelings on this matter, I must confess that I find it perhaps more profitable to look forward rather than backwards, accepting what the noble Lord, Lord Williams of Elvel, said, that here we have circumstances which greatly changed what might have been. However, we are in fact faced with that, and I think that the outcome is probably the same as regards the status.
The noble Lord asked a particular question. I assure the noble Lord that the code will be considered again. It will be subject to further consultation procedure as set down in Clause 25. Indeed that is happening now. My feeling is that that which we saw some weeks ago now will be quite radically altered to take account of all the views that have been expressed and the consultations that are going on.

§ Baroness Burton of Coventry
My Lords, before the Minister sits down perhaps I may ask him a question on the matter of the status of the code of practice. Does the noble Lord think that there will be any opportunity, if we so desired, to discuss this in your Lordships' House—I was going to say in the forthcoming Session, but when we return—so that we really could have the opportunity, which I think was assured us, of a full discussion on what has been agreed?

§ Lord Lucas of Chilworth
My Lords, if I recall correctly, what was promised was that the discussions that were going to take place as a result of the concordat's proposals—which were put before the Government some six or seven days before that part of the Bill was reached in your Lordships' House—would take some time, and the outcome of those consultations would be reflected in amendments in another place.
That indeed took place. I certainly added that therefore we would have the opportunity of discussing this at a later stage. As the noble Lord, Lord Williams, says, other events have taken place so that we are, in effect, denied the opportunity of discussing the status of the code in relation to this Bill. The code must be approved by order and that could be debated, but the status cannot.