§ 3.25 p.m.
§ Report of Amendments received (according to Order).
§ Clause 21:
§ Transactions in particular goods
§ (2) The Board may by order make provision with respect to any goods specified in the order for all or any of the following purposes, that is to say, to ensure that, except in such cases or in such circumstances as may be so specified, the goods in question—
- (a) are sold only by quantity expressed in such manner as may be so specified; or
- (b) are pre-packed, or are otherwise made up in or on a container for sale or for delivery after sale, only if the container is marked with such information as to the quantity of the goods as may be so specified; or
LORD STONHAM moved, in subsection (2)(b), after "specified" to insert:
including in the case of goods in liquid, the net drained weight of the solid content".
The noble Lord said: My Lords, I submit that the purpose of this Amendment is so clear that it is not necessary to go into any great detail. It is required in order to prevent the form which is now practised, particularly with imported canned goods, in which although the can of fruit, vegetables or sausages may be marked: "Net weight, 1 lb.", the actual solid content is, perhaps, only 4 ounces. At the Committee stage on a similar Amendment I gave details of a weights and measures inquiry which proved this to be the case. There is therefore no need for me to go over that ground again. The noble Lord, Lord Derwent, was good enough to assure his noble friend that the phrase "net drained weight" means something to the Board of Trade, and there is thus no practical difficulty about this Amendment as some noble Lords thought.
§ The noble Lord also confirmed that subsection (2)(b) of this clause gives the power to do what I was asking for; that the method of measuring net drained weight would be laid down by the Board, who would not hesitate to use this power whenever they considered it necessary and practicable. That might be thought to be good enough, but I am moving the Amendment because I feel that if it is in the Bill the Board are far more likely to make regulations about the drained weight of contents, than if it is not. I would emphasise that under the Amendment, the Board would still make regulations only in cases where they considered it necessary and practicable.
§ It was suggested in opposition to my Amendment when I moved it in Committee, that, particularly in the case of soft fruits, some of the natural juices of the fruit find their way into the syrup in the canning process. That is perfectly true, but it is not relevant to the purpose of the Amendment, which is intended to provide a purchaser with an indication of the solid content available after drainage in a prescribed manner. Housewives, and particularly those who from time to time have complained, are not so much interested in what the packer puts into the can, as in the quantity of usable fruit which comes out of it. In one case 1103 which was investigated by the weights and measures inspectorate a tin of strawberries marked "15½ ounces, net weight" contained just 14 strawberries, weighing after drainage 4¾ ounces, and of course over 11 ounces of syrup. The price of the strawberries averaged 2½d. per berry. Other tins of the same brand were a little better.
§ This Amendment does not aim merely at protecting the consumer, the housewife and that kind of person, but aims also at protecting honest traders who do give a fair deal and put a proper quantity of fruit, meat or fish into their cans. If this Amendment were accepted it would prevent, or would go a long way towards preventing, the kind of fraud I have indicated; it would protect the housewife, and it would protect the honest trader. I beg to move.
Page 21, line 16, after ("specified") insert ("including in the case of goods in liquid, the net drained weight of the solid content").—(Lord Stonham.)
§ THE MINISTER OF STATE, BOARD OF TRADE (LORD DERWENT)
My Lords, in answering this first Amendment may I make one general remark? I am in some difficulty in dealing with some of these Amendments which have been tabled in precisely the same form as Amendments which were discussed in Committee. In practically every case the Government's reasons for resisting them, in those cases where I did resist them, are exactly the same as they were on the Committee stage. I am afraid, therefore, that some of your Lordships who heard the Committee stage may find my replies rather tedious. But I must reply to them at length (though I will be as short as possible) because some noble Lords were not here on the Committee stage and they must he gone into again.
As regards this Amendment, as I explained on the Committee stage, in my view it is entirely unnecessary. Subsection (2)(b) of Clause 21 gives the Board power to provide by order that containers shall be marked with such information about quantity as the Board shall specify, and this would include net drained weight. Clause 21(4)(f), gives the Board power to provide the way in which net drained weight and other quantities 1104 shall be determined. Some food packers already state the drained weight, particularly where the food is packed in brine. There is nothing in the Bill—and the noble Lord knows this, of course, perfectly well—to prevent them from continuing to do so, provided that, where the liquid is also a food, a statement of the total quantity of food is also marked on the container.
In our view, however, it would not be appropriate to lay down a requirement of universal application—and, in spite of what the noble Lord, Lord Stonham, says, that is what his Amendment would seek to do—that in every case this must be put on the container. That is why the provision has been made in Clause 21 for the Board to require the information in those cases where it may be appropriate. And I can assure the noble Lord that the Government will use these powers if they consider it necessary and where they consider it practicable—and where it is practicable is the more important point, I think, in dealing with the noble Lord's Amendment. It is our view that each kind of food in liquid, whatever it may be, must be dealt with separately by the Board, case by case.
When it comes to knowing, in regard to any particular commodity, what net drained weight is, the Board will have to make different regulations according to what is in the tin—and that is not an easy task. May I take the case of pineapple? I am advised that it is quite possible (I am not saying it is so, but I think it is quite likely) that, in a given size of tin containing pineapple chunks, the absorption of liquid is slightly different from that in a tin containing pineapple rings. Are we to say that, to arrive at the net drained weight, the pineapple is to be weighed immediately the tin is emptied? Are the chunks or rings to be weighed then, or are we to wait five minutes or ten minutes? Or is the weight to be that of the pineapple put into the tin, and so on? You cannot have regulations of universal application. The Board of Trade intend to use these powers, but in some cases they will not be practicable, and that is why we are not prepared to accept any Amendment of general application such as that moved by the noble Lord, Lord Stonham.
May I add one further word, although he is not here, for the benefit of my 1105 noble friend Lord Conesford and the noble Baroness, Lady Horsbrugh? They raised the question, as has been mentioned by the noble Lord, Lord Stonham, of the meaning of "net drained weight". They caught me rather on one foot in answering them last time as, until I read it, I had not followed the purport of their question. The term "net drained weight" does not appear anywhere in the Bill, but I can reassure both of them that if the phrase "net drained weight" is used in an order or regulation on any particular commodity we shall see that it is stated and defined in such a way as to make quite clear what is meant in the ease of that particular commodity; so I do not think they need worry. There will be a definition with the order or regulation. I do not think I have anything else to add, except that the reasons against this Amendment are the same as I gave in Committee, and I cannot accept it.
§ LORD STONHAM
My Lords, I heard the noble Lord's remarks in Committee, and I am bound to say that I did not find what he said very tedious, though I did find it very disappointing. I thoroughly disagree with him when he says that this would be a universal requirement. I would point out that subsection (2) of Clause 21 begins:The Board may by order make provision with respect to any goods specified in the order for all or any of the following purposes, that is to say, to ensure that, except in such cases or in such circumstances as may be so specified …".Then it refers to the goods in question—and, of course, there is a long list of the different types, to which I was proposing to add another. It is not correct for the noble Lord to say that I am asking for a universal requirement. If by that he means that I am asking for it to be applied to all goods of a particular type, of course I am. Anything else would be quite unthinkable. That is the only sense in which it would be a universal requirement. So either the noble Lord has mistaken me if that is what he meant, or he has been wrongly advised.
I admit that there are some practicable difficulties, as there are in all weights and measures administration, but this is no new thing. In America they are quite accustomed to this kind of marking, and it is one of the normal protections for 1106 the consumer. I really cannot see why it should not be in this Bill. Nevertheless, as the noble Lord has said, the power to do this resides in the clause, and if it cannot be specifically in the Bill now I have no doubt that we shall return to it later (or, if we do not, other people will have to return to it later) when this Bill becomes an Act, and, if necessary, ensure that those powers are used. I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 3.37 p.m.
LORD STONHAM moved, in subsection (2), after paragraph (d) to insert:
are not sold in containers or wrappings which, without reasonable cause, falsely or misleadingly suggest that the quantity of goods they contain is substantially greater than in fact it is".
§ The noble Lord said: My Lords, I beg to move Amendment No. 2. On this occasion I would point out to the noble Lord, Lord Derwent, that this Amendment, like most other Amendments I am moving on Report, is not the same as that which was moved in Committee. On this particular Amendment I must say that I am indebted to the noble Lord, Lord Airedale, for the advice which he was kind enough to give me; and, as your Lordships will be aware, we both have somewhat similar Amendments on the Paper. When I moved the Committee stage Amendment on deceptive containers I referred to three types of swindle. The first was the straightforward swindle—the giant packet, only three parts full; the second was what I called the swindle seductive, with large and perhaps beautiful packages enshrining a tiny bottle; and the third the swindle secretive, where you have a container with a hollow bottom or a false lid.
§ The noble Lord, Lord Hawke, welcomed this Amendment as an old friend, which he said he still supported in principle, but he was worried about the interpretation in a court of law of the word "substantially"—although apparently there is no difficulty anticipated where this word is used in other parts of the Bill. But the noble Lord, Lord Hawke, posed the genuine problem of loose, powdery substances which shake down during transit, or at least before they get to the customer—and that largely applies to goods like soap powders and detergents. I have looked into that, and, because of certain 1107 strictures which I uttered on the Committee stage, I am glad of this opportunity of withdrawing them. It is the case that when you take some of these substances and empty a carton which is apparently only three-quarters full and then try to put the contents back into the carton again, you may fill it up entirely and still have some left over. I would say that the present Amendment, by the inclusion in it of the words "without reasonable cause", overcomes that difficulty. If it is a volatile, shake-down product, there is "reasonable cause" for the carton being partially empty by the time it reaches the purchaser. But there is no "reasonable cause" for the outsize boxes that contain little bottles of perfume, for the hollow bottles of cosmetics, for the outsize cartons for toothpaste or shaving cream, or for the excessive sizes of some chocolate boxes compared with their contents. If my Amendment is accepted it would catch these people as they deserve to be caught.
§ The noble Lord, Lord Derwent, argued, quite rightly, that the Bill as it stands requires packages to be marked with the net weight or volume or number of contents so that the buyer will know the quantity he is buying. That is perfectly true. But I submit that it is no answer to the problem of deceptive packages. Time and again it has been proved by tests that it is the big package that catches the eye. If there are two packages of the same goods, with exactly the same contents, both marked with the same net weight of, say, 1 lb., one carton being larger than the other, the larger carton will sell 50 per cent. more than the other. So the net weight requirement does not really cover the point of deceptive packaging; nor does the requirement that certain goods must be pre-packed only in a limited range of quantities. The art of deceptive packaging is really the art of the three-card trick: find the lady! You see it; and it is not there. The people who do it know this quite well.
§ The Government, in opposing this Amendment in Committee, used two further arguments which cancel each other out. The first was that, without this Amendment, the Board have sufficient power in the Bill to protect the public against deception through packaging; the second was that it would not 1108 be workable to prosecute people for misleading by having too large a package. The noble Lord said this in the OFFICIAL REPORT, Vol. 249, at column 115. If that second argument is correct, it is an admission that the powers in the Bill are insufficient. The Government just cannot have it both ways. The inclusion of the words "without reasonable cause" protects the honest trader and Board of Trade regulations, defining not the maximum size of container but the maximum percentage difference allowed between the overall size and the size of the contents, would be workable and would protect the buyer against deception. I submit that if the Government wish to provide that protection they will accept this Amendment, which I beg to move.
Page 21, line 23, at end insert the said subsection.—(Lord Stonham.)
§ LORD AIREDALE
My Lords, I should like to support this Amendment. This Amendment is similar, except in one respect, to an Amendment moved in Committee; but, as the noble Lord, Lord Stonham has said, the words "without reasonable cause" have now been added, and this, in my submission, makes a world of difference to the Amendment. I think the Minister in his rejection of the Amendment in Committee used two limbs to his argument; one was that certain goods were inclined to shake down or shrink in a package. The noble Lord, Lord Stonham, has dealt with that. The Minister also mentioned other types of goods which were liable to swell inside the package if there was humidity in the atmosphere. I suppose that rice and similar types of goods would be inclined to swell. In my submission the addition of the words "without reasonable cause" overcomes this difficulty with goods of that kind because there would, in those cases, be reasonable cause for the manufacturer's not filling the package fully.
The second leg of the Minister's argument in Committee was that the Amendment was unnecessary because of the requirement to mark the net weights on packages. I am perfectly prepared to agree that in the case of goods such as breakfast food or detergents, things which the housewife buys regularly each week, the marking of the net weight on the package may end the evil of "giant" 1109 packages, because the housewife will come to recognise the proper sizes of packages of detergent of a certain net weight. But it obviously does not help in the case of goods such as boxes of chocolates, because already, so far as my inquiries in the confectionary trade have led me to believe, 90 per cent of boxes of chocolates are marked with the net weight of the chocolates: nevertheless, that has not prevented the bottom layer of the box of chocolates consisting largely of paper shavings instead of chocolates. The noble Duke also, I think, referred to this evil on two occasions on earlier stages of this Bill. There is a clear instance that if the Government really want to end this evil of packages too big for the amount of goods they contain, they should accept this Amendment, and I have the greatest pleasure in supporting it.
§ LORD DERWENT
My Lords, I should like to answer both the noble Lords' Amendments at the same time. They deal with the same point. As the Amendments are slightly different from those moved at the Committee stage, so will be my answers. But, I should like to deal with the arguments at length. I am afraid this is one of the Amendments that I cannot accept. I explained at some length in Committee why we do not think it necessary or practicable—and I keep on coming back to this question of practicability—to have powers in this Bill relating specifically to misleading packaging. As has already been mentioned by the noble Lord, Lord Stonham, the Bill provides two main requirements which between them will do a great deal to prevent the customer from being deceived on how much is in the packet. First, the Bill protects the consumer from being deceived, by ensuring—and this point was mentioned also by the noble Lord—that he is informed of the quantity of goods within the package, which will have to be clearly marked. In most cases this will be done by requiring the container to be marked with the quantity of its contents by weight, measure or number as the case may be. The regulations to be made under Clause 21(4) will ensure that this marking is both conspicuous and legible.
Secondly, there is the requirement—also mentioned by the noble Lord—that many of the staple commodities which are sold on a very large scale must be pre-packed only in a limited 1110 range of quantities. That is a great protection for the consumer. We believe that these two requirements will give consumers substantial protection against deceptive containers. I would remind noble Lords that this was also the opinion of the Molony Committee, who in paragraph 812 observed the two requirements in the Bill "with interest and approval" and considered that, if wisely used—and that is how we intend to use them—these powers would curb the evil of deceptive containers. We cannot accept—and I repeat what we said on the Committee stage—that because a package is not filled to the brim this means that the packer is deceiving the consumers.
In a number of cases, as the noble Lord said, where packages are filled to the top by the packer the contents may shake down and consolidate before they reach the consumer. It is a feature of modern high-speed filling and packaging that in many cases a space is left at the top of the container. It may be that the contents are liable to swell owing to changes in humidity and temperature, or that a space helps to prevent spilling when the container is opened. I believe that many—one might almost say, the great majority—of the complaints which have been made about deceptive packages have referred to products such as detergents or toilet preparations, which will in future have to be marked with their quantity under this Bill. I realise that noble Lords in framing their present Amendments have attempted to deal with some of my objections in Committee by inserting the qualifying words "without reasonable cause". But this would not make the Amendments any easier to accept. Indeed, we take the view that these words only add uncertainty. We could not specify in advance in an order what was a "reasonable cause" and, until the courts have interpreted this in relation to any particular kind of product or package, traders would not know whether their packaging was complying with the law.
About the drafting of the Amendment, may I add, with the greatest respect, and using the word in its slang sense, that both of the Amendments appear to contain a nonsense, in that it is suggested by the wording that, 1111 if there is reasonable cause, a container may falsely suggest that the quantity is greater than it actually is. We fully sympathise with the desire of both noble Lords to ensure that there is adequate power in the Bill to protect the consumer in matters of this kind. We have had another careful look at this question and I have had a careful look at everything said in Committee, and the Government feel sure that the powers already in the Bill are adequate. We do not believe that the provisions suggested in the Amendments are necessary or desirable or workable. I hope, in view of what I have said and of the fact that we have looked into this again, that the noble Lord, Lord Stonham, and the noble Lord, Lord Airedale, when he comes to his Amendment, will be willing to withdraw their Amendments.
§ LORD AIREDALE
My Lords, will the Minister deal with the case of boxes of chocolates? Does the Minister agree that boxes of chocolates are already, in nine cases out of ten, marked with their net weight and in many cases the bottom layer of the box is not all chocolates but largely shavings? Does the Minister accept that as being a satisfactory situation or do the Board of Trade wish to end this foolish practice? Will the Minister deal with this point, because it is important?
§ LORD DERWENT
My Lords, I can deal with the point only with the permission of the House. It is perfectly true that sometimes, though certainly not in nine cases out of ten, the bottom of boxes of chocolates is partly empty. I accept that for children, or for the noble Duke, the Duke of Atholl, when he was a child—he is no longer one, I understand—this might be deceptive, but I do not think that most people are in fact deceived. If one is buying an expensive box of chocolates, a fancy box with wonderful ribbons and bows, running to several guineas, one is paying a lot for the box. In many cases, one buys the box and then has a couple of pounds of chocolates put into it. In the case of cheaper boxes, the manufacturers of boxes cannot turn out intermediate sizes in enormous quantities. People want to buy a nice looking box and all sorts and sizes of boxes may be filled as ¼ lb. or 1112 ½ lb. or 1 lb. boxes. I feel that, if the amount of chocolates is legibly marked, no one over the age of the noble Duke when he was deceived is likely to be taken in. I do not think that we should be prepared to alter the Bill for one particular commodity, when it is not really necessary.
My Lords, I am sorry that my noble friend has had to reply as he did, but he has not surprised me. Though I have been in principle in favour of Amendments of this nature from the beginning of the Bill, I have realised the whole time that one was up against the impossibility of trying to make people honest by legislation. From what the Minister has said, I am satisfied that it is impossible to frame an Amendment which would really achieve the ends we seek. I think that we shall just have to leave it to the steady improvement of human nature to improve the situation, rather than put something into Statute law which would probably have no effect on the rogues and would handicap those who are not rogues.
§ LORD CROOK
My Lords, I doubt whether I would have risen to speak until I listened to the noble Lord, Lord Hawke, and I think that what he said is a plea that Parliament should pack up and go home and never bother again. Most of the arguments he advanced might just as well be applied to the Transport Act. Why have a 30 m.p.h. speed limit? Why not leave it to the motorists and their honesty. The plain truth is that all legislation is aimed at making dishonest people honest, at making people do things in the interests of the social life of the country, and this is no different from any other.
I am bound to say that I have some sympathy with the reply which the noble Lord speaking for the Government addressed to us. Before I sit down, may I try to help him in the dislike he said he had for trying to put "misleading" into the Bill? I can understand the difficulties of trying to interpret the word "misleading". I follow the importance of what he said about deceiving the consumer and about the filling of packets in factories affecting the size of the contents. I have been in detergent factories and seen something of the problem mentioned by my noble friend who moved this Amendment. I know that all purchasers 1113 of goods want everything both ways. They want to buy a completely filled packet and want to be satisfied that they have the lot. On the other hand, when they open the packet and the contents spill all over the kitchen table, they do not like it a bit.
However, when we come to other things, particularly those to which the noble Lord, Lord Airedale, referred, we are getting towards the word "misleading", whether we put it into the Bill or not. If I may say so with respect to the noble Lord, Lord Derwent, his argument about the inability to produce different sized boxes is not completely true. I will not give a free advertisement, or the opposite, in this House to certain brands of chocolates, but I have seen them packed and I know it is possible to pack chocolates—not those in the fancy boxes with ribbons, the kind of thing which some of your Lordships may buy and which some of us have never more than seen in the shop windows, but the ordinary kinds that are pushed on to the British public by advertisement on the advertising line in television—in cardboard boxes of 1 lb., ½d. and ¼ lb., each of which sizes will always leave room for three or four chocolates at the bottom, with lots of nice crinkly paper to fill up the rest.
It is clear—and I have discussed the subject with packaging authorities—that if the particular make I have in mind were to make up its mind to take one quarter of an inch off its size on its 1 lb., ½ lb. and ¼ lb. boxes, it would stop the deluding of the women—or rather the men who buy them for the women—by these boxes of chocolates which appear to have many more in them than they actually have.
My Lords, I should like to ask the noble Lord a question. He appears to be very knowledgeable on this subject, and this question arises purely from curiosity on my part. Is the specific gravity of a soft-centred chocolate the same as that of a hard-centred one? If not, clearly the boxes would have to provide on occasions for packing entirely hard centres and on others soft centres.
§ LORD CROOK
I am bound to say that if the noble Lord shows himself so 1114 intelligent on specific gravity, when I come to talk again of the specific gravity of beer I shall ask for his support in the Division Lobby. Of course, it is not true that they are the same. I am glad the noble Lord raised this point, because I had not thought of it. What does this particular firm do? It says: "We will always put the same chocolates in every box to help you to pick which one you want, whether it is cherry centred, coffee centred or a nut—we will print a picture on the top to show you". So every time there is put into the box the same specific gravity. And now that I have the noble Lord with me on chocolates and beer, he must come with us on the Amendment we have moved.
I said that I thought the noble Lord who replied for the Government had a point, and I see it, in the words,Without reasonable cause … falsely or misleadingly …As he said, when you turn the negative into the positive, it could mean that with reasonable cause you could "falsely or misleadingly suggest". But it would be easy for the Board of Trade, or the noble Lord on their behalf, to accept an Amendment which would deal with this completely. I am sure that if I make this suggestion my noble friend who moved the Amendment would be happy to accept it, because I believe we can meet every single point the noble Lord made in replying for the Government. If he accepted an Amendment with the words "falsely or misleadingly" left out, so that we were given an undertaking that in the final stage of the Bill we had in the words,are not sold in containers or wrappings which, without reasonable cause, suggest that the quantity of goods they contain is substantially greater than in fact it is",it seems to me that there would be a reasonable compromise between the kind of view that the noble Lord who moved the Amendment put up and that put up by the Government. So far they have only stonewalled; and, hating stone walls, I make my offer of a nice soft end.
THE DUKE OF ATHOLL
I am sorry. I must say that I did not like my noble friend's line of argument that chocolates were not worth considering in isolation. Most commodities are bought mainly by adults, who, one presumes, are more or less capable of looking after themselves, but chocolates are bought to a substantial extent by children, who are very trusting; therefore, when they see a box of chocolates they presume that it is full of chocolates, and not three-quarters full of chocolates and one-quarter full of shavings. It would be a great pity if the only reason why an Amendment of this kind were not accepted was because it would apply only to boxes of chocolates. After all, many far more curious products than chocolates are mentioned in the various Schedules. I cannot remember them, but I know that some of the products mentioned there I have certainly never heard of. They appear to be worthy of a mention on their own. Why chocolates should be singled out and not have this particular form of protection inserted in the Bill, I cannot understand.
I should also like to assure my noble friend that it is perfectly possible to make boxes of any size, and the types of chocolates which go into the boxes of which the noble Lord, Lord Crook, and I are thinking are always the same, year in and year out. They have been identically the same ever since I remember eating chocolates. The manufacturers have presumably weighed the ¼ lb., or the ½ lb., in which case you get two of each, or the 1 lb., in which case you get four of each, since the particular brands were first put on the market. So I cannot see, except that traditionally the box has always been of that size, why the box cannot be slightly reduced in size and the shavings left out.
§ LORD STONHAM
My Lords, I join the noble Duke in reminding the noble Lord, Lord Derwent, that chocolates are not the only things with which we are concerned in regard to this misleading package. The field is vastly greater than that, and I listed them. The noble Lord, quite properly from his point of view, carefully ignored mention of any of them, because he is well aware that they establish the case for this Amendment beyond all reasonable doubt. Having said that, I do not want to perpetrate— 1116 and I am sure this goes for the noble Lord, Lord Airedale—a nonsense in law. It is, however, remarkable that what the noble Lord has called a nonsense in law is sensible in practice—and not for the first time. Everyone is aware of what the noble Lord has in mind—indeed, I described it: that when it is impossible, because of the nature of the contents, to prevent the contents from shaking down so as to leave some empty space that is a reasonable cause for making the container substantially larger than the contents. But that is the only kind of case one can think of where there is a reasonable cause. If we let this matter go by default, then we are almost conniving at, and we are certainly acceding to, what is a ramp.
I believe that the basic objection of the Government to this proposal is not because of any form of words we have used, because another form of words could be found, but because they are aware that the trading interests who do this kind of thing are extremely rich and very powerful. I am sorry that we are not, at least at this stage, to take the opportunity to put an end to these rackets. I do not ask my noble friends to divide on an Amendment which, however right in substance, is a nonsense in law—
§ LORD STONHAM
I will read Hansard to-morrow; but the noble Lord indicated that it was what was called a nonsense in law. I do not accept that it is a nonsense in fact. In any case, there is the chance that if the Liberal-Labour coalition continues we may find another form of words with which to come forward on Third Reading. With that hope, I ask your Lordships' leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 4.9 p.m.
LORD STONHAM moved in subsection (2), after paragraph (d) to insert:
( ) are not sold or offered or exposed for sale without the maximum price per unit of quantity correct to the nearest complete penny being made known to the buyer or prospective buyer in such terms and in such manner as may be so specified".
§ The noble Lord said: My Lords, I beg to move this Amendment, which, although 1117 having the same purpose, is substantially different from an Amendment moved in Committee, and which, indeed, has been revised so as to meet, in our view, all the objections put forward by the Government to the previous edition. It now refers to the maximum price per unit of quantity and requires it to be declared to the nearest penny, and it is left to the Board of Trade to determine the manner in which the price should be specified. Out purpose in moving this Amendment is to provide enabling power for the Board of Trade to require the declaration of price per unit of quantity in such cases as may appear to them to be desirable and appropriate. In many cases the consumer cannot compare values unless he is given this information, because the declaration of quantity and price of the article are not enough unless the price of a simple and well-understood quantity is also known.
§ These problems are constantly faced by shoppers, and the mental arithmetic involved in determining the price per lb. is far beyond the competence of the average shopper. Without this information, however, it is impossible to compare values, and no system of sales control in the interests of the consumer is complete, or even adequate, without a declaration of a price per unit of quantity. This principle is of the greatest importance, of course, in the case of joints of meat or fish, and commodities weighed up from bulk in the presence of the buyer. The declared weights often involve complicated fractions of a pound, or even of an ounce, and in the absence of a declaration of price per unit of quantity the buyer has no redress if, as often happens, he is overcharged. It is also of increasing importance in the case of pre-packed goods offered for sale in supermarkets and marked only with the quantity and the price of the pack.
§ When I moved a somewhat similar Amendment in Committee the noble Lord, Lord Derwent, opposed it principally on three grounds. First, that it would require the calculations of price in elaborate fractions of a penny; second, that it would make it difficult for butchers to have a tray of 9d. chops or for fishmongers to have a tray of cutlets of fish all at one price; and, third, that it would require packets of goods to be marked on the rack itself with the declared price per unit, which would 1118 raise difficulties when the price went up or went down or when a discount, such as 3d. off, was operated. In its revised form my Amendment clearly overcomes the first objection relating to fractions of a penny and clarifies the intention as to the manner of making known the price per unit. With regard to these difficulties in relation to the 9d. chops, I would point out to the noble Lord that the trader knows perfectly well the price per lb. at which he is selling, or he would soon be out of business, and the method of selling which the noble Lord apparently desired to protect in refusing the Amendment before is, in fact, very little use and must be discouraged, for the very good reason that it is quite illegal. For nearly 30 years sales of meat have been unlawful unless the meat has been marked with its weight or has been weighed in the presence of the buyer. So that, as I am sure the noble Lord is aware, when he sees that tray of chops all at 9d. or 1s. (and he must be absolutely astounded to see them at that price, unless they are very small chops) it is not legal to sell them without the weight being shown.
§ I have in my hand a simple ticket, which I took off a small packet of liver sausage which was purchased in a store and which has all the requirements asked for in this Amendment: the net weight, 4 oz.; the price per lb., 3s.; the selling price, 9d. That is all we are asking for in this Amendment. It so happens that on Saturday I was in an ordinary butcher's shop, a very busy one, and I saw one of the younger members of the staff constantly weighing up joints of meat. He was doing it very quickly. All he did was to put a joint on a scale, which told him not only the weight but the actual selling price of the joint; and very quickly indeed—in a matter of seconds—he wrote down on a ticket the selling price and the weight, put the ticket on the joint which someone else carried to the window where the joints were exposed for sale. What I am asking for is, therefore, common practice in most supermarkets and it is also common practice with the ordinary good retail butcher who is abiding by the law and showing the weights.
§ The other objection which the noble Lord raised was an assumption that the Amendment requires individual packets 1119 to be marked with the price per unit. He was entirely in error in thinking that that was, in fact, necessary, because the Amendment leaves it to the discretion of the Board of Trade to prescribe not only to which classes of articles, if any, the requirement of this Amendment shall apply, but also, the terms and manner in which the price per unit shall be made known to the buyer. It is not for me to say the manner in which the Board of Trade will specify that the price per unit shall be made known to the buyers in the case of different commodities, but in the kind of case to which the noble Lord referred they could require the price per unit to be made known by marking it on a show ticket associated with the goods; for example, "1 lb. at 2s. per lb.", or whatever the price is; or by marking it on the packets or goods themselves, or even by a verbal declaration; or, in any other manner which the Board of Trade choose to prescribe.
So there is no difficulty in carrying out a requirement of this kind. As I have said, a great many shopkeepers are already doing it, and most of them—certainly most of the best ones—have been doing so for a number of years. But the important thing is that this Amendment, as intended, would rope in those who do not: the least desirable shopkeepers; the very people, in fact, from whom the consumer needs to be protected. During the Committee stage the noble Lord, Lord Derwent said [OFFICIAL REPORT, Vol. 249 (No. 75) col. 120]:
… marking of the price per lb. would, I agree, appear to be of advantage to the consumer.
It certainly would. And since the noble Lord accepts the advantage to the consumer in principle, I say: why not put it into practice in the Bill by accepting this Amendment?
§ I have been very carefully through the Amendment, and through the discussions we have had on the Committee stage. We have, so far as is humanly possible, revised the Amendment to meet the valid objections which were raised on Committee stage, but we have completely answered the rest. I believe that, in its revised form, every objection which was raised in Committee has been removed, unless, therefore, the noble Lord has thought up some new arguments meantime, there can be no shadow of a case 1120 for resisting the Amendment now, and I trust he will accept it. I beg to move.
Page 21, line 23, at end insert the said paragraph.—(Lord Stonham.)
§ 4.21 p.m.
§ LORD DERWENT
My Lords, I shall deal in the course of my reply with various new points raised by the noble Lord, but first I will outline the general case against an Amendment of this sort. My argument follows very much the lines it did on the Committee, but I must again explain to the House our reasons. When we discussed the Committee Amendment on this subject, I said that the Government did not believe that it would be appropriate or practicable to impose in this Bill a requirement to make known the price per unit quantity. I am still of the same opinion. In our view, requirements of this kind would place an unwarranted restriction on traders, and it could be, and in certain cases would be, positively disadvantageous to purchasers. In spite of what the noble Lord says we still hold the view that such requirements would greatly complicate, and probably prevent, the practice, convenient to both shopkeeper and customer, of selling loose articles of slightly different weights, such as chops or fish fillets, at a fixed price per article.
§ LORD STONHAM
If I may interrupt, in that case how does the butcher get over the legal requirement that he must weigh the meat?
§ LORD DERWENT
If the noble Lord will be patient for a minute, I will tell him. It is not illegal to offer chops or fish fillets, and things of that kind at so much per chop, or whatever it is, from a tray in the window at 6d., 1s., or 2s. per chop, whatever it may be, provided that the goods are weighed before the purchaser takes them away. But if regulations were made that the price per unit was to be put on each chop, which would be the practical effect of this Amendment, then they could not be sold, as they often are sold, in a way which is very convenient to the customer, from a tray at 6d. per chop, all the chops being approximately the same size, because each one would have to be weighed individually.
This Amendment would also hinder another common trade practice which is greatly to the consumer's benefit—the 1121 reduction by retailers of prices of pre-packed goods. It is obvious that if a packet of something, normally costing 2s. and marked with its price per unit, which this Amendment would insist on, is offered one week by the retailer at 1s. 9d., the marked price per unit will no longer be correct; and that will apply to everything in his store which has had a price reduction, and everything will have to be remarked with the price per unit. In many cases the burden of changing the price per unit on every package and tin for which the retailer wanted to cut his prices would, I think, prevent him from cutting his prices. If we required the price per unit to be made known, the result would be that this price would be stamped on the packet by the manufacturer or packer, and therefore, in practice, the price would be fixed by the manufacturer. Therefore, in the supposed cause of consumer protection we should indirectly be severely discouraging retailers from cutting prices. I do not think the fact that the present Amendment requires the price per unit to be rounded off to the nearest 1d. disposes of the extremely complicated difficulties which will be met with, if the Amendment is agreed to, by the poor retailer.
I would bring forward this further point. When goods are pro-packed and there are regulations applying to them about making the price per unit known, these requirements will have to apply from the factory to the retail store. In practice, therefore, each tin will have to be marked if this Amendment is accepted, which again, I think, will prevent any cutting of prices. I cannot think that it either practicable or desirable to make these complications for the trader, because I do not believe that the change would help the consumer.
§ LORD CROOK
When I listened, I was not sure for whom to burst into tears—for the noble Lord who had just made the case, for the Board of Trade, who gave him the brief, or for the poor supermarkets who, according to the noble Lord, suffer so terribly. I can only suggest that the plain truth is that, not for the first time, noble Lords sitting on the benches opposite are completely out of touch with anything that goes on in the ordinary life of this country; because as I listened to the noble Lord, I could not believe he was living in the same world as the rest of us.
1122 If I go into a supermarket, I find that each article, whether it has a price printed on it originally by the producer or not, will have chalked on it, first because the supermarket man does not trust the woman when she comes into the shop, and, secondly, because he does not trust his own staff, the price at which he is selling it. A 1s. 6d. packet of biscuits will be marked down to 1s. 4½d. so that he can "do down" the supermarket at the end of the road selling the same thing for 1s. 5d. In each supermarket there is a section of the staff whose sole task in life is to make certain that before things are wrapped they are marked with prices somewhere outside and brought in on trolleys. If they have a big rush on—
§ LORD DERWENT
I think the noble Lord is not following me quite correctly. We are talking not about the price on each article but about the price per unit of quantity, which is not the same thing as the price.
§ LORD CROOK
I was coming to that. On the price per unity of quantity, when the supermarket owner wants to deal with it that way round, he will put up a whole stack and show on it what the goods are marked down to. If the noble Lord tells me that his interpretation of the Amendment does not permit that to be done, we may be on completely new ground. But if the noble Lord goes and looks at these chops, which have always worried him so much, he will find on the average small piece of loin, carrying two or three chops, or whatever it may be, a little label which normally gives the adjudged weight, the price per lb., the price the purchaser is to be charged, with the words below "To be reweighed". Are these not considerations which the noble Lord can take into account? The noble Lord may tell me that everything I am saying is bunk. I am quite prepared to be told that—it is not the first time he has told me that—but at the moment I do not regard as very sound the arguments he has put up against this Amendment.
I have read the Amendment very carefully. I cannot quite see that the interpretation being placed on it is necessarily correct. Am 1123 I not right in thinking that the prospective buyer could be made acquainted with the price at the moment of purchase? And, of course, supermarkets are not the only places concerned: there are many others as well. The moment of purchase is when the goods are put on the scales. I think that noble Lords opposite are arguing on behalf of supermarkets, and not of the vaster part of the retail trade of the country. I wish that my noble friend the Minister would introduce me to his butcher, because these chops at 6d. each are a good bargain, and one with which we are not normally acquainted.
§ LORD STONHAM
I feel that this is one of those occasions when, by no means for the first time in dealing with this Bill, we feel that the noble Lord and his advisers are quite out of touch with the practices of to-day. Not only that, but on this occasion the noble Lord has not attempted at all to answer the case I put—not in any way. We have had exactly the same points as we heard before. But I put to him particularly—and I gave examples—that it would be for the Board of Trade to specify the manner in which the unit of quantity should be made known. Surely it is within everybody's knowledge that large stores in every town, small or large, in this country have this unit of quantity marked, on a placard if you like, which absolutely shouts it out, and often that has no direct relationship to any price that might be marked on the tin or container. That is the whole purpose of these places.
There is absolutely no difficulty at all, as the noble Lord pretends, in complying with the terms of this Amendment. He said that there are cases where it would be positively disadvantageous to the customer, but carefully refrained from giving a single example. Then, when he came to the 6d., 9d. or 1s. chops and I said to him, "Then that is quite illegal, because for 30 years there has been a statutory obligation to weigh meat", he said, "Ah! But in this case they fix the price of the chop first and they weigh it afterwards". In regard to the previous Amendment the noble Lord said that, in the form in which it stood, my Amendment is a nonsense. If he says that that is the practice, then what he has just said is a far greater nonsense. Of 1124 course, if the chops are weighed at all they are weighed before the butcher puts the price on them; otherwise, as I have said, he would go out of business in no time.
It may well be that, as my noble friend Lord Crook says, there is a ticket which says that they have to be re-weighed. In the cases which I have observed they do not bother with little formalities like that. But in the case of this Amendment the law would have to be properly complied with, not only so that the butcher would weigh the meat for his own proper needs in order to know how much it weighed and how much to charge, but so that the housewife could compare one quantity with another, one joint with another, or even one shop with another. The ticket should show the weight and the price per lb. That is all we are asking for. I pointed out to the noble Lord—and I have produced tickets; rightly assuming that he did not know, I produced the visual aids—that this is normal practice on a large scale, and that with most reputable firms the Amendment is not necessary because they are doing it already; but it is necessary with those who are somewhat less reputable and do not safeguard the consumer in the same way.
I can only say that, in turning down this Amendment on this occasion the Government have not really considered it at all. They have apparently regarded this as a formality. But I assure the noble Lord that we went carefully and fully into this Amendment, in the belief that it answered all his arguments and would be accepted. I am most disappointed that this is not the case. As it is not so, and because we regard it as important, I shall invite my noble friends and noble Lords in all parts of the House to accompany me into the Division Lobby.
My Lords, before the noble Lord sits down, may I ask him whether his Amendment is not covered by the words in lines 20 to 23:are not sold without the quantity sold expressed as aforesaid being made known to the buyer at or before such time as may be so specified"?Surely the order could then specify whether or not the goods are to be marked in advance of sale?
§ LORD STONHAM
My Lords, if by leave of the House I may answer the question, the answer is, No. In any case, it does not cover the case of marking on the goods. It may be conveyed verbally. I indicated in my speech that I cannot say the method of making known the unit of quantity which the Board of Trade will specify for different goods; and I said that it could in certain cases be made known verbally. All we ask in the Amendment is that the Board of Trade should, by order, make regulations in different ways with different classes of goods, to make the unit of quantity known to the buyer.
§ Clause 23:
§ Quantity to be stated in writing in certain cases
§ (4) The Board may by order grant and from time to time vary or revoke, with respect to goods or sales of such descriptions as may be specified in the order, exemption, either generally or in such circumstances as may be so specified, from all or any of the requirements of this section; and, until otherwise provided by such an order, nothing in subsections (1) to (3) of this section shall apply to—
- (a) a sale by retail from a vehicle of—
- (i) any of the following in a quantity not exceeding two hundredweight, that is to say, any solid fuel within the meaning of Schedule 6 to this Act, and wood fuel;
- (ii) any of the following in a quantity not exceeding five gallons, that is to say,
§ LORD BOOTHBY
My Lords, I have listened with strained attention to the arguments both in favour of this Amendment and, by the noble Lord representing Her Majesty's Government, against it. I have reached only one conclusion. Whether the Amendment is passed or whether it is not, within six months of the passage of this Bill every butcher in this country will be raving mad.
§ 4.40 p.m.
§ On Question, Whether the said Amendment (No. 3) shall be agreed to?
§ Their Lordships divided: Contents, 21; Not-Contents, 44.1125
|Addison, V.||Latham, L.||St. Davids, V.|
|Archibald, L.||Lawson, L.||Sherwood, L.|
|Burden, L. [Teller.]||Listowel, E.||Silkin, L.|
|Champion, L.||Lucan, E. [Teller.]||Stonham, L.|
|Chorley, L.||Meston, L.||Williams of Barnburgh, L.|
|Crook, L.||Morrison of Lambeth, L.||Williamson, L.|
|Douglas of Barloch, L.||Ogmore, L.||Wise, L.|
|Ailwyn, L.||Forster of Harraby, L.||Merrivale, L.|
|Atholl, D.||Fortescue, E.||Mills, V.|
|Bessborough, E.||Goschen, V. [Teller.]||Milverton, L.|
|Bossom, L.||Hailsham, V. (L. President.)||Monsell, V.|
|Boston, L.||Hawke, L.||Newall, L.|
|Brecon, L.||Horsbrugh, B.||Remnant, L.|
|Carrington, L.||Howe, E.||St. Oswald, L.|
|Chesham, L.||Iddesleigh, E.||Somers, L.|
|Colyton, L.||Jellicoe, E.||Soulbury, V.|
|Croft, L.||Jessel, L.||Strang, L.|
|De La Warr, E.||Long, V.||Stuart of Findhorn, V.|
|Denham, L. [Teller.]||Lothian, M.||Swinton, E.|
|Derwent, L.||Mancroft, L.||Tweedsmuir, L.|
|Dilhorne, L. (L. Chancellor.)||Mansfield, E.||Twining, L.|
|Ferrers, E.||Massereene and Ferrard, V.|
Resolved in the negative, and Amendment disagreed to accordingly.
§ liquid fuel, lubricating oil, and any mixture of such fuel and oil;
§ LORD STONHAM moved, in subsection (4), to leave out paragraph (a). The noble Lord said: My Lords, my noble friends and I regard this Amendment as of considerable importance. During the Committee stage my noble friend Lord Latham moved an exactly similar Amendment, and the fact that we are returning to it is an indication of the importance we attach to it. Our purpose is to remove from the Bill as it now stands the exemption from the need to give written quantity statements in sales from a road vehicle of solid and wood fuel in quantities of less than 2 cwt. and of liquid fuel not exceeding 5 gallons.1127
§ The Bill as it now stands would make those quantities exempt from the need for a quantity statement to be given, but at present, under by-laws, consumers, obviously in the main poor people who buy these fuels in small quantities, have this protection, and local authorities all over the country are most anxious that it should continue, especially as frauds by delivery men are prevalent and are going on to an increasing degree. Also deliveries are made to houses and fiats where the housewife is possibly away working and there is no one at home to check the delivery.
§ My noble friend Lord Latham gave impressive figures to show that if protection is withdrawn the Government will be encouraging a racket. I will not repeat those figures or his arguments, but I wish to deal directly with the case which was put up by Lord Derwent in answering my noble friend in Committee. It will be recalled that noble Lords in all parts of the House attached considerable importance to this safeguard of requiring a ticket to be given at the time of sale, and Lord Derwent answered their anxieties by assuring us that if, when delivery was made, the occupant of the house was out, the exemption in paragraph (a) did not apply, because the transaction was a delivery and not a sale from a vehicle. It therefore put those transactions on much the same basis as small sales in a shop. This argument persuaded many noble Lords to drop their objections, and indeed the noble Lord, Lord Hawke, said he was absolutely satisfied with the noble Lord's arguments. But I am advised that in putting forward that argument the noble Lord, Lord Derwent, is quite wrong and that his statement is, in fact, a misconception of a point of law. That means that, according to my advice, if paragraph (a) is allowed to remain in the Bill the hawker will not have to leave a ticket or a quantity statement when delivering a small quantity of fuel to a house when the occupant is out.
§ As I understand it, the noble Lord, Lord Derwent, based his argument on the distinction which he drew between a delivery and a sale of hawked goods, but in this connection I would draw his attention to Section 16 of the Sale of Goods Act, 1893, and to the numerous court cases touching the position of what 1128 are called "unascertained goods". In the case of goods carried on a hawker's vehicle—and this applies particularly to liquid fuel and to coal in bulk, which is subsequently to be divided and measured or weighed at the point of appropriation to unknown, or, indeed, to known buyers—these are clearly, in the great majority of cases, unascertained goods, and they do not become specific or ascertained goods until there has been a division of the bulk and an appropriation to individual customers. In fact, while these goods are on the vehicle they are not in a deliverable state. I do not know whether that point is clear to the noble Lord; it certainly is to me. In practice they remain in this undeliverable state until they arrive at the buyer's premises, when part of the bulk is measured or weighed and appropriated to the particular buyer.
§ The transfer of the property in the goods takes place, therefore, at the point of appropriation. This is the point of sale, which clearly takes place on the vehicle. The sale in such circumstances must be from a vehicle, and the paragraph (a) exemption as to quantity statement applies whether or not the buyer is present. In such cases, therefore, delivery and sale are the same thing, and it is impossible, I am advised, to make the distinction on which the noble Lord based his whole case last time and on which he gave the assurances. In fact, I am also advised that delivery in relation to the sale of goods does not necessarily involve carriage or transport. It generally means simply the transfer of possession from one person to another. That is in Section 62 of the Sale of Goods Act. Most small deliveries of solid or liquid fuels from vehicles are in practice sales from vehicles, and not mere deliveries subsequent to sale at the merchant's yard, and this despite what theorists in this matter may imagine.
§ Most so-called hawkers nowadays have regular rounds and regular customers. Much of their trading is done on the basis of an understanding between a roundsman and his customers. When there is nobody at home, sometimes a note is left for the roundsman in a convenient place which he knows of, and in other cases he looks at the stock and leaves sufficient to replenish it. In the case of liquid fuel, it is common practice for the roundsman to fill up the tank or 1129 container, and in most of such cases the money is collected later. But in all these cases, whether the customer is present or not, the transaction in law, a sale from a vehicle, and not, as the noble Lord, Lord Derwent, said, merely a delivery. Since it is a sale from a vehicle, unless this Amendment is accepted the Bill will not require, for quantities of 2 cwt. or less, a delivery note stating the quantity. In the absence of the delivery note, as the noble Lord is aware, it is often difficult, and in many cases impossible, to prove the quantity purported to have been delivered. My Lords, if I have been correctly advised on this particular point of law, it is obvious that the noble Lord's whole case in opposing the Amendment vanishes.
§ When we discussed this before, the noble Lord agreed that under by-laws the requirement to leave a weight ticket exists at present. Yet in taking this power from local authorities he claimed to be tightening up the present law. My Lords, this is another manifest nonsense, because by this exemption he is leaving the small consumer wide open to fraud and with virtually no hope of recompense. The noble Lord will be aware that the County Councils' Association, and, indeed, all weights and measures authorities, are extremely concerned about the consequences of the removal of this protection. It is no consolation for them to be told than, if things go wrong, the Board of Trade has the power to put them right. They are right now, under the by-laws. The time to ensure that they continue to be right is now, when we are dealing with the Bill, and I trust in view of these arguments, which I regard as unanswerable, the Government will do so by accepting this Amendment. My Lords, I beg to move.
Page 25, line 43, leave out paragraph (a).—(Lord Stonham.)
THE EARL OF MANSFIELD
My Lords, on this occasion I feel that the noble Lord, Lord Stonham, has completely proved his point, and I hope that, for once, the Amendment may be accepted. I think there is more swindling, particularly of poor people, done in the retail trade of coal and wood than almost anywhere else. When I was addressing your Lordships on the Committee stage of this Bill—not actually on this particular 1130 point, but on whether scales ought to be carried on coal lorries—I mentioned that part of my duties as chairman of the police committee of my county council is to authorise prosecutions of people who swindle in delivering coal, and that I had had only too many of these to do. After the Committee stage of this Bill, I returned to Scotland to find a fresh request awaiting me, that I should authorise a prosecution which I had very great pleasure in doing. On this occasion some 45 or 50 sacks of coal were weighed by our very zealous inspector, who found that in no single case was any one of these bags—all of which were supposed to contain 1 cwt.—deficient by less than 10 lb., and in a number of cases the deficiency was as much as 17 lb. in a cwt.
THE EARL OF MANSFIELD
Yes. Every single sack was deficient by not less than 10 lb. and some were up to 17 lb. The people who are affected by this are naturally the humblest sections of the community, because only they buy in small quantities of 1 cwt. or 2 cwt., or even less, at a time. The have no opportunity themselves of checking the weights, because there are few households, I imagine, even among your Lordships, where there are scales that can weigh up to half a cwt. Usually 2 stone is the maximum. The result is that they are largely at the mercy of the retailer. The swindling is done usually by the owner when it is a small one-man business. When it is a larger business it is usually done by the van driver, who abstracts so many pounds of coal from each sack and then sells several sacks more than he set out with and pockets the result. The small owner himself does the same. In either case the consumer is defrauded, and probably the Inland Revenue, too, because it is not shown in the returns.
Admittedly there is really no way in which the small consumer can be entirely protected. But if you compel the deliverer of the coal to sign a docket that he has delivered the specified quantity, you are going a very considerable way towards checking it. This is even more important in the case of wood fuel, because there I have on several occasions—in England, not in Scotland—seen lorries going round the suburbs 1131 selling wood by the bag, and not mentioning at all what was the weight of the bag. It is quite easy, when one has logs, so to arrange them—if some of them are fairly long, 18 inches or more in length—as to make the bag look pretty full, whereas in point of fact it is by no means full. It is for that reason that I feel that this provision of having to declare weight at the time of delivery is going to be a very considerable deterrent to the rascality which undoubtedly goes on in a great many areas, and which it is difficult to detect because no authority has enough inspectors to make a thorough job of going around the place. These merchants, or their drivers, often go on for years without being caught, and the admittedly quite severe fines which may be imposed on them when they are caught are only a fraction of the ill-gotten gains which they have made over the preceding period. For that reason, I feel that this Amendment is fully worthy of support.
§ 5.0 p.m.
§ LORD DERWENT
My Lords, I was going to confine myself to the legal point raised by the noble Lord, Lord Stonham, but because of my noble friend's remarks I cannot do that, and must deal with the whole matter. May I say this to my noble friend? With great respect, I do not think that either this particular clause or the Amendment are fully understood, and I hope to explain to him as I go on why I say that. We are all aware that deliverers of coal in sacks, particularly the vanmen in certain places, are very apt to take bits out of the sacks, and so on, and to defraud; but the provision of a delivery note does not, in fact, in the case of hawkers, have any effect on that whatsoever.
We discussed an Amendment identical to this one in Committee, and we held then, for reasons which I will give again, that it would be unduly onerous to make a hawker write out delivery notes for this door-to-door trade where sales are in small quantities. That is at the back of our thinking. Hawkers and coal merchants who operate what is known as a "trolley round"—that is, making small door-to-door sales; not the delivery of large amounts—perform a valuable service to people who wish to 1132 buy fuel frequently in small quantities, either because they have not sufficient space in which to store it or because they cannot afford large quantities at a time, and we do not think it reasonable to require delivery notes to be made out for all these small sales. We do not think it is necessary, in the interests of the consumer, to require delivery notes with this kind of sale. Leaving aside the question of fraud (I will deal with the noble Lord's point in a moment), the quantity of goods is known to the buyer at the time of sale, and the goods are delivered in his or her presence. That is important.
If coal is made up in sacks, it must be in specified quantities marked on the sacks. So a delivery note does not help here if there is fraud. What helps is an inspector coming along and weighing the sack with the amount marked on it. That is not the case now, but it will be when this Bill becomes an Act. A specified amount is shown and if there is any fraud the inspector can catch him without a delivery note, because there is the sack which is being either carried or delivered and it is found to be short in quantity. So a delivery note would not help there. If the coal is loose, it must be weighed at the time of sale—and this, of course, is the legal point, raised by the noble Lord, Lord Stonham. Similarly, the hawker must use stamped measuring equipment to measure out the quantity of paraffin sold, which is the other commodity we were particularly talking about, and the customer must be present and will be able to see the measurement.
Now we come on to the point raised by the noble Lord, Lord Stonham. I have taken advice from my advisers, and I have taken advice from Parliamentary Counsel. I am not a lawyer, and I am making this statement in front of my noble and learned friend on the Woolsack. They take the view that if the goods are delivered when the buyer is out and in response to a previous order (if he is not there, he cannot be giving any order at that time), that is not "a sale by retail from a vehicle" but "a delivery after sale". The sale was made at the time the order was given. Is that clear to the noble Lord? A delivery note would then, in all cases, be required. Without getting too involved in legal niceties, may I go a little further? The actual interpretation of the Bill must 1133 ultimately rest on decisions of the courts, but my legal advisers see no reason to suppose that, in interpreting Clause 23(4), with which we are here concerned, the courts would not follow the decision in Hunthig v. Matthews. In that case, the Divisional Court held that coal which was carried on a vehicle for delivery in response to a number of orders was not being carried for sale: the sale had taken place earlier, even though, the Divisional Court said, none of the sacks on the vehicle had at the relevant time been appropriated to any particular order. In other words, the lorry was full of coal which had been previously ordered.
§ LORD STONHAM
My Lords, may I interrupt the noble Lord to ask him a question? I understood him to say that his legal advisers, including Parliamentary Counsel, take the view that the sale was made at the time the order was given, which may have been weeks before, and that in that case a delivery note would he required. Could he say if that would also apply to the kind of case which f instanced, where the chap has his usual round which he might have been doing for months, and where he is accustomed to leaving a certain quantity each time—say, filling up a container? Would that be regarded as a case in which a sale had taken place previously, so that a delivery note would be required?
§ LORD DERWENT
A delivery note would be required: that is what I am advised. The only time a delivery note would not be required is when a man comes round with his trolley and the buyer tells him "I want so much coal". It would then either be delivered in a marked sack, or it would be weighed in front of a customer; but on all other occasions, when an actual order had been given on a previous date, then a delivery note would be required. I have had a further note as we have been discussing this, saying that the legal advisers see no reason to depart from that firm opinion. They maintain that there is no doubt.
Therefore, my Lords, we do not believe that the exemption in subsection (4)(a) would in any way prejudice the interests of the consumer. I think that even the most ardent advocates of form-filling as a national pastime must surely pause 1134 before requiring small itinerant hawkers to make out a delivery note in front of every customer with every quart of paraffin or sack of coal they sell. The objection of the noble Lord, Lord Stonham, to what I said on Committee stage was to this effect. I have taken the best legal advice I could get; there is a decided case which deals with the point, and no other; I am not a lawyer, but I am advised that in the minds of my legal advisers there is not a shadow of doubt that the case which I have put is the correct one.
THE EARL OF MANSFIELD
Would the noble Lord, Lord Derwent, answer one question? If this clause is, as it would be, no protection in the case of people buying coal, where is it protection? What is the use of Clause 23 at all?
§ LORD DERWENT
I am afraid I still do not understand the noble Earl's question. I never said that this clause was no protection. What I said was that where fuel was delivered in the presence of the buyer, the order having been previously given by the buyer, and it was either loose fuel weighed in the presence of the buyer or it was in a marked sack—the sacks would have to be marked under this Bill—it would be no protection to give a delivery note in those circumstances to the buyer, and would really be causing a lot of quite unnecessary form-filling.
I repeat, if the buyer were not there the delivery note would have to be given, and if a fraudulent sack was produced then a delivery note would not help because it would be up to the inspector to weigh the sack and he would catch him as he would on any other occasion. But the actual delivery note would not fill up the sack again and it would be of no value to the purchaser. But an offence which is committed by the hawker is just as serious with a delivery note as without one. It is the same offence: defrauding the purchaser. The issue of a delivery note would have no real effect, and would be unduly onerous. Subject to the legal position, which I am assured is in fact how I explained it, I hope the noble Lord will withdraw his Amendment.
§ LORD STONHAM
Naturally, my Lords, I am less fitted to dispute legal 1135 arguments with the noble Lord than anyone I can imagine. For that reason I will have to look at this again and possibly raise it at another stage. I must say, however, that he has on this occasion put this particularly knotty point at far greater length, in response to more specific questions, than he was able to do before. If the noble Lord is correct—and it seems likely that he is—then it would cover a great many of these small sales of the kind to which I referred when the person is out and where it is a regular thing. If these transactions are regarded as sales at the time the order is given and a delivery note must be left, then of course it will go a considerable way to meet the case. But it by no means goes the whole of the way. It is all very well to say that you cannot require a hawker to give a ticket for every quart of paraffin he sells when he hands it over to the buyer, and I can see there is something in that point when you reduce it to absurdity. But we are talking of quantities of less than five gallons and we could put the figure very much lower; we could put it at half a gallon instead of five gallons or even at one gallon if the noble Lord prefers. That is the point we could come to so as not to bother about very small sales when they are handed over.
I am sorry, but I cannot agree that the noble Lord really covers the essence of this thing. It is not an unimportant matter and it is really not right to say that the leaving of the weight ticket has little value to the consumer. The noble Earl, Lord Mansfield, put this point very clearly. He admitted—and we all know that it is true—that these thefts and frauds are prevalent, and if there is a weight or quantity shown you have some evidence. If there is no weight or quantity ticket you have no evidence at all.
§ LORD JESSEL
My Lords, I thought the noble Lord said you had the sack. I thought the weight was marked on the sack. I think the noble Lord, Lord Stonham, has been for once a little muddle-headed. You want a delivery note and you want a sack marked as well.
§ LORD STONHAM
I can assure the noble Lord that, although I may be a little muddle-headed, I am not in any 1136 danger of getting the sack. I would not say that about the noble Lord opposite. I do not really think that I was muddleheaded on this point. If a sack is delivered and the assumption is that there is supposed to be one hundredweight in it but there is no ticket at all in many cases, it will not be known which particular delivery man brought it in.
§ LORD JESSEL
I am sorry to interrupt the noble Lord again, but I understood that the noble Lord, Lord Derwent, said that the sack was marked with the quantity of what was contained in it. Is that so or not?
§ LORD STONHAM
Yes, my Lords but the point is that if the coal is shot out of the sack the sack is taken away; it is no longer there. There is no evidence unless there is a ticket. The coalman does not just deliver and leave the sack and pick it up again. He simply shoots it out into a box or container or through a hole. There is no evidence. If the noble Lord, Lord Jessel, thinks that over he will agree with me that I am not muddle-headed.
§ LORD JESSEL
There is a delivery note when the buyer is not present, is there not? When the buyer is present it is shot out of a sack which is marked, even though the sack may not be left behind.
§ LORD STONHAM
My Lords, perhaps the noble Lord will allow me to deal with that point. There are two kinds of transaction; and there may be more. One kind is that when the buyer is present, and where there is probably less need for a ticket because the buyer can see what he is getting; the other kind of transaction we were talking about is that where the buyer is not present but where the sale has been made some time before—perhaps a month; perhaps it is a regular delivery. In such cases, according to the noble Lord, Lord Derwent, a ticket must be left; but in these cases there is probably no sack left behind and the goods are shot out even though the buyer is not present.
§ LORD STONHAM
But only in the cases where the buyer is not present and it is assumed that the sale has taken place some time ago. That does not cover all the transactions quite apart from those where the buyer is present. I do not think you can escape the conclusion that the presence of this exemption for quantities less than 2 cwt. or quantities of liquid fuel of less than five gallons is a loophole—or, rather, much larger than a loophole, a gap—through which you can drive a coal cart. And it adds to the chance of the already very numerous frauds. I had originally felt that we ought to take this Amendment to the limit, but in view of the conflict of legal evidence and in view of the fact that, if the noble Lord is correct, it does give protection to a very much larger number of transactions of this kind than I had, and indeed he had, at first supposed, I propose, with the agreement of my noble friends, on this occasion to withdraw the Amendment. But I may well be that, having studied these legal arguments, shall have to come back to it again on Third Reading. With that, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.18 p.m.
My Lords, the purpose of this Amendment is, I think, self-evident. Subsectior (4)(c) of Clause 23 exempts from the delivery note requirements of the clause all goods which are made up for sale in containers marked with their quantity. Clearly, where the consumer receives a container marked with the quantity of the goods, e.g. a packet of tea or bag of prepacked potatoes, he does not also need a delivery note stating the quantity. The marking itself gives the necessary protection to the buyer.
It has, however, come to our notice that this exemption, as now drafted, would also cover cases where goods are made up for sale in containers which are not actually delivered with the goods; but where goods are emptied out of their containers and the containers taken away. In these cases, the buyer would have no documentary evidence of the stated amount of the goods delivered. An example is solid fuel, sold in sacks marked with the weight of the contents, by a hawker from a vehicle. There may be 1138 other cases, too, where goods are made up in marked containers which are not delivered with the goods. We do not think that there should be an exemption in such cases from the need to give a delivery note, and we propose in this Amendment to limit the exemption in Clause 23(4)(c) to cases where the container is delivered with the goods. I beg to move.
Page 26, line 11, at end insert ("being a container which is delivered wth the goods").—(Earl Ferrers.)
§ On Question, Amendment agreed to.
§ Clause 24 [Short weight, etc.]:
§ 5.22 p.m.
§ LORD STONHAM moved, in subsection (2), after "mislead", to insert "or defraud". The noble Lord said: My Lords, Clause 24 deals with the question of short weight, and I want to add the words "or defraud" to the word, "mislead", which is already in the Bill and which, in our view, is not strong enough in many cases. I am advised that in Birmingham alone in the last three years there have been 374 successful prosecutions for short weight, many of which could not have been made under the terms of subsection (2) of this clause, as it now stands. In one case, for example, the tare weight of a lorry delivering hay had been understated by 6 cwt. at the public weighbridge on more than 40 loads, involving a loss to the buyer of £220. That was not just misleading; it was a pure case of fraud. In another case, the tare of a vehicle used for delivering logs had been persistently understated by 6½ cwt. Not only that, the driver was in the habit of remaining in the vehicle when it was on the public weighbridge, so that every time there was a total short weight of 8 cwt., for which the customer did not get the goods. In most cases of this kind the dealer or the owner of the lorry has done nothing to mislead the buyer, but the delivery man has been guilty of deliberate fraud. We feel, and certainly the weights and measures inspectors feel, that there is a strong case for this clause to provide for such cases. I beg to move.
Page 26, line 39, after "mislead" insert "or defraud ".—(Lord Stonham.)
§ LORD DERWENT
My Lords, this is a matter of interpretation. I am, of course, entirely in agreement with the purpose behind the noble Lord's Amendment, but I am satisfied, upon the legal advice I have received, that this Amendment is unnecessary. The legal point at issue is this. It is an essential element of fraud that the victim was misled by the defrauder's act. Therefore, in covering any other act calculated to mislead as to quantity, which is, as I am sure your Lordships will agree, properly very wide, we have already covered the narrower effects of an act calculated to defraud as to quantity. In view of my explanation, I hope the noble Lord will withdraw his Amendment.
§ LORD STONHAM
My Lords, I have given my legal adviser a holiday on this one, because I thought that it was clear that the noble Lord would accept it. I should have thought that for a man to have himself weighed in his lorry was an act calculated to deceive, but I will have another look at the matter. Meanwhile, in view of the noble Lord's assurance, I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ LORD DERWENT moved, in subsection (4), after "26(2)" to insert "and (2A)". The noble Lord said: My Lords, with the permission of the House I should like to deal with Amendments Nos. 8 and 12 together, because No. 8 is consequential on No. 12. Noble Lords will see that there are two parts to my Amendment to Clause 26. The Amendment makes no change of substance whatever to the clause, but it intended to clarify the position in respect of two matters about which some doubts have been expressed.
§ The first part is designed to meet the point raised in the Amendment of the noble Lord, Lord Merrivale, to Clause 26. This relates to the problem, which has been a matter of concern to retail fishmongers, of the inevitable loss of weight by drainage or evaporation between the time when fish is weighed in the shop and the time when it is delivered to the customer's door. The Amendment makes it clear that traders have a defence in the case of retail sales of food—other than pre-packed food required to be marked with its quantity—where a deficiency is due wholly to unavoidable evaporation 1140 or drainage between sale and delivery, provided that due care and precaution was taken to minimise such evaporation or drainage. This is not an extension of the defence in Clause 26, as now drafted, since those defences would already cover the circumstances described in paragraph 2A of my Amendment. But it has been represented to us that the wording of the clause as now drafted does not make the position sufficiently clear, and the object of the Amendment is to remove all doubt.
§ The second part of my Amendment is intended to make clearer, by redrafting, the purposes of the defences in subsections (1) and (2) of Clause 26. This is an important clause for traders and for consumers, and I think it should state, as plainly as possible, what are the circumstances in which the various defences apply. Noble Lords will be aware that Clause 26(2) provides a defence for traders who make reasonable allowance, in packing their goods, for factors such as evaporation which can affect the weight between the time of packing and the time of sale. It has been suggested, however, that there may be some doubt about the interrelation between this defence in subsection (2) and that in subsection (1)(a) which refers to the commission of an offence due to "some other cause beyond his control." My Amendment will, I hope, make it clear absolutely that, as has been the intention, the defence in subsection (1)(a) shall not apply if the cause of the deficiency was one which should reasonably have been foreseen and for which allowance could reasonably have been made in making up or marking the goods. Thus, for example, where evaporation is unavoidable but the trader can forecast its extent and can reasonably make allowance for it, he will have to do so in order to rely on a defence under Clause 26, and his defence will be that provided by subsection (2), not subsection (1).
§ The point is that some people misunderstood this, and we think the Amendments will make it clear that where loss of weight is due wholly to circumstances outside the control of the seller there is a defence, but where there is more or less known evaporation, or evaporation that can be reasonably estimated, then that must be taken into account by the seller. I hope that I have made myself clear and that the House will agree to this Amendment. I beg to move.1141
Page 27, line 20, after ("26(2)") insert ("and (2A) ").—(Lord Derwent.)
§ LORD MERRIVALE
My Lords, I should like to take this opportunity to express my deep appreciation to my noble friends Lord Ferrers and the Minister of State for tabling these two Amendments. I put down an Amendment on the Committee stage to try to achieve the same thing, but due to a Parliamentary visit abroad I was unable to move it. However, I discussed the question with my noble friend Lord Ferrers, and I believe he took it up with the Board of Trade. I am glad that they have reconsidered this and tabled these two Amendments which completely meet the requirements of the National Federation of Fishmongers, in spite of the fact that subsection (2B) modifies the scope of the defence provided by Clause 26(1)(a).
I should like to make a few comments on the two Amendments, because while this Bill was passing through another place, and during Second Reading and Committee stage in this House, the National Federation of Fishmongers were particularly worried with regard to the provisions of Clause 26 on the question of drainage and evaporation of wet fish. In another place the Government's attitude was that a customer should be able to receive at home the same weight as was ordered at the shop, by allowance being made by the shopkeeper. I am glad that the Government realise that there are instances where an allowance could not be made, or that it would not be practicable to do so. For example, if a housewife ordered four red mullets, I presume that the fishmonger would be expected to throw in a few free extra sprats to make up for the loss in weight due to evaporation or drainage. In many cases it will be difficult for the trader to assess exactly the amount of drainage or evaporation that will take place when a customer comes to the shop and asks for the fish to be de livered a few hours later. A few weeks ago, as I was rather worried on the quest ion of drainage and evaporation, I visited a fishmonger's in Twickenham and saw that after 1 lb. of cod fillet had been packed for one hour there was a loss of a quarter of an ounce. In another package of cod 1142 fillet, after 1½ hours the loss through drainage was half an ounce.
As my noble friend did not mention Section 12, subsections (2) and (3), of the 1926 Sale of Food (Weights and Measures) Act, I should like to refer to those provisions to show how necessary it is to have the Amendments we are now considering. Section 12(2) reads as follows:In any proceedings under this Act in respect of an alleged deficiency of weight or measure or number, if the defendant proves to the satisfaction of the Court that such deficiency was due to a bona fide mistake or accident, or other causes beyond his control … the defendant shall be discharged from the prosecution.Subsection (3) reads:In any proceedings under this Act in respect of an alleged deficiency in the weight of any article of food delivered to a purchaser, the defendant shall be discharged from the prosecution if he proves to the satisfaction of the court that the alleged deficiency was due to unavoidable evaporation or drainage and that due care and precaution had been taken to avoid such deficiency.Over the years subsection (3) of Section 12 of the 1926 Act has been most useful when cases have come before magistrates' courts. In particular, I would mention two cases which came before the Harrow Magistrates in October, 1960.
In one case there had been a sale of 1 lb. 8 oz. of cod steaks which, after being wrapped, were weighed by an inspector and found to weigh 1 lb. 7 oz. 5 drams, an alleged deficiency of 11 drams, equivalent to an overcharge, if established, of ld. The defence called independent evidence to show that, on a test, 1 lb. 8 oz. of cod steaks became 1 lb. 7 oz. when reweighed after wrapping, a loss of weight of 1 oz., or 5 drams greater than that found by the inspector. The magistrates dismissed the summons. In another prosecution the summons related to 14 oz. of haddock fillets which, after being wrapped, were weighed by the inspector at 12 oz. 13 drams, a deficiency of 1 oz. 3 drams, equivalent to an overcharge of 3½d., if established. The independent evidence showed that the fillets should have lost only ¾ oz., and the fishmonger was, not unnaturally, convicted on this summons. I am sorry to have been so long in supporting a Government Amendment, but the National Federation of Fishmongers are grateful, and I also wanted to show your Lordships how useful the Government's 1143 Amendments that we are now considering will be for fishmongers.
§ LORD STONHAM
My Lords, we welcome these Amendments and would congratulate the noble Lord, Lord Merrivale, in that he has succeeded in convincing the Government in Committee without making a speech but merely by printing the Amendment. We wish we could be as fortunate on this side. I think I understand the noble Lord, Lord Derwent, perfectly well. He was most lucid about it although he did manage to convey the impression that he did not understand himself as well as I understood him, but possibly that was only his modesty. As I understand it, this will apply only to a retail sale of those foods which, if pre-packed, are not provided for in any other part of the Bill.
§ LORD DERWENT
I am sorry to interrupt the noble Lord, but this is a case of a sale by retail of food not being food pre-packed.
§ LORD STONHAM
I understand that. In view of the insistence of the noble Lord, Lord Merrivale, that this was particularly related to fish, as it obviously is, but of course it applies to other foods as well, I am a little concerned about this question in 2A thatit shall be a defence for the person charged to prove that the deficiency was due wholly to unavoidable evaporation or drainage since the sale and that due care and precaution was taken to minimise any such evaporation or drainage.The due care and precaution which one would expect a retail fishmonger to take in advance would be to throw a bucket of water over it; and that would be a proper and legitimate precaution but, of course, would have a great deal of effect on the weight. I wonder whether that is what the noble Lord has in mind in the drafting of this clause.
Then, when we come to 2B, although it says that it is without prejudice to any defence under subsection (2) or (2A), it says that it would be necessaryfor the person charged to prove that the commission of the offence was due to some cause beyond his control if that cause was one which should reasonably have been foreseen and for which allowance could reasonably have been made in stating the quantity of the goods …".I am quite sure that these are wise provisions to have in this Bill. I thank the 1144 Government for putting them in and I am sure that they will be a defence for an honest trader if they are needed. But I draw attention to the danger the other way. There are some trades where it is often the practice, sometimes necessary, to revive what can only be called wilting produce by giving it a drink, which, of course, adds a lot of weight to it; and I wonder when this was drafted, with regard to the "unavoidable evaporation or drainage", whether the Government had that in mind and whether they are satisfied that this is not covered by the remainder of the clause and that they are not opening the door too wide.
§ LORD DERWENT
My Lords, I thank my noble friend Lord Merrivale for his support of these Amendments and I think they will provide a safeguard for the trader as well as at the same time providing an adequate protection for the consumer. The real point of the noble Lord, Lord Stonham, is this: you cannot by law stop anyone from cheating. That is quite certain. You must, I think, give the honest man a defence for this sort of thing. If an inspector were to find that gross malpractices—I will not say by throwing a bucket of water over fish, which might be in the consumer's interest—were taking place with vegetables or something of that kind, if it came to his knowledge and if he could prove it, which is a much more difficult thing, then there are other clauses dealing with practices "calculated to mislead" which would come into effect. I do not think we can really tighten up at all this particular clause with practical effect. I will certainly have a look at what the noble Lord has said, but I have been advised that the draughtsmen have taken very good care over this clause and I doubt very much whether it can be tightened up at all.
§ On Question, Amendment agreed to.
§ Clause 25:
§ Pleading of warranty as defence
§ 25.—(1) Subject to the provisions of this section, in any proceedings for an offence under this Part of this Act or any instrument made thereunder, being an offence relating to the quantity or pre-packing of any goods, it shall be a defence for the person charged to prove—
- (a) that he bought the goods from some other person—
- (i) as being of the quantity which the person charged purported to sell or
1145 represented, or which was marked on any container or stated in any document to which the proceedings relate; or
- (c) that at the tire of the commission of the offence he had no reason to believe the statement contained in the warranty to be inaccurate, that he did in fact believe in its accuracy and, if the warranty was given by a person who at the time he gave it was resident outside Great Britain and any designated country, that the person charged had taken reasonable steps to check the accuracy of that statement; and
§ 5.46 p.m.
§ LORD LATHAM moved, in subsection (1)(a), after "person", where that word first occurs, to insert "resident in Great Britain". The noble Lord said: I rise to move Amendment No. 9 on the Marshalled List. It is the case that Amendment No. 10 is related to the same subject matter and it is also the case that if Amendments 9 and 10 are carried, No. 11 will be redundant. These Amendments were, of course, moved and defeated during the Committee stage of the proceedings. I make no apology, however, for re-submitting them for the consideration of your Lordships. As I sit through the proceedings on this Bill I am really in a considerable doubt as to what is its purpose. Is it the greater protection and defence of the consumer or is it the greater protection and defence of the trader? I must confess that at times I have an uncomfortable feeling that the Minister is very much more concerned about the interests of the traders than the interests of the consumers.
§ This Amendment is an important one, although it is largely concerned with procedure. Its importance is in helping the weights and measures authorities to protect the consumer in relation to imported goods and, after all, the value of this measure will be entirely determined by the success of its application and operation by the enforcing authorities, and anything that can be done to assist them should be clone. Certainly we should seek to avoid doing anything which would hamper, harass or hinder them in carrying out the provisions of the law.
§ The warranty defence is quite a reasonable proposal in relation to home-produced goods, in which case the person giving a false warranty can be effectively dealt with. Overseas exporters who give false warranties are beyond the jurisdiction of our courts and thereby escape, as does the importer relying on 1146 the false warranty if he can prove reasonable steps to check the accuracy of the warranty. If the goods are imported from the so-called designated country, then it is not even necessary for the person charged to prove that he had taken reasonable steps. That matter will be dealt with in a later Amendment, as I have indicated. But this warranty from abroad is really a nullity. It is of no value to the consumer. It can be of some value to the importer because, although the warranty cannot be enforced outside the United Kingdom, it is the case that in most industrial countries the importer can sue out a civil case for damages as a result of failure to comply with the warranty in respect of goods which are bought. So it seems that it is only the consumer who suffers.
§ The trader who puts the offending goods on the market and excuses himself and defends himself by saying that he acted under a warranty and that he took reasonable care and reasonable steps to ascertain whether the warranty was a good one and whether it would be complied with—and if it is not complied with he has a claim—presumably sells the goods to the British consumer and the British consumer is quite unprotected. This solicitude which is evinced by the Minister as regards the trader, with very little interest and very little concern about the interests of the consumer, is strange. This warranty is a nullity; it is a fiction. The consumer is in a worse position if he buys imported goods, and I noticed that the Minister in the Committee stage on this Amendment, was very much concerned about importers. It is encouraging to know that the Party concerned with Ottawa are concerned to increase imports; but we ought not to seek to increase imports at the expense of the consumer, the consumer being bereft of what protection he would otherwise have if he bought British goods. In these circumstances, I suggest that the least that can be done is to accept the Amendment which I move in order that the consumer may be reasonably treated as regards imported goods. I am not asking for unreasonable treatment for the consumer. This, as I have said, is merely fictional, and it would be of no value at all to the consumer. I beg to move.1147
Page 20, line 21, after ("person") insert ("resident in Great Britain.").—(Lord Latham.)
§ LORD DERWENT
My Lords, I think the object of this Bill was adequately stated by the noble Lord, Lord Stonham, on the Second Reading—I am only paraphrasing, because I have not the OFFICIAL REPORT in front of me—in which be said that it was to protect the consumer and, at the same time, to establish that unduly onerous penalties were not put on the trader. As I understand the noble Lord, Lord Latham, he does not think we ought to consider the trader very much. If the noble Lord will forgive me, in answering him I should like to answer certain points which were raised on the Committee stage but which he has not raised to-day, because I think they are important. Having had a look at what was said on the Committee stage, I should like to answer that debate as well as the noble Lord's case.
I will deal with Amendments Nos. 9, 10 and 11 together. The effect of the first two Amendments would be to deprive any trader who imported goods of the defence of warranty in any proceedings for an offence relating to the quantity or pre-packing of those goods. That is what the Amendments would do. On reading the OFFICIAL REPORT for May 6 of the debate on the Committee stage on these particular Amendments, I cannot help thinking that noble Lords opposite may not have fully appreciated the effect of paragraph (c) of subsection (1) of this clause. It requires an importer who intends to rely on a statement contained in a warranty by a person resident outside this country to takereasonable steps to check the accuracy of that statement.The operative word in that phrase is "check". An importer would not be able to plead under this paragraph that he has ascertained, for instance by a letter from his suppliers, that the statement of quantity on a pre-packed article was accurate. He would have to take actual steps himself to have a reasonable sample of the consignment checked for accuracy. He could do this himself, or, as is frequently done by importers, he could request the local inspector to take samples and certify that the weight 1148 or measure of their contents was as stated on the label. This the inspector is able to do by virtue of Clause 43, subsection (2), but, of course, the importer would have to pay for the inspector's services.
This is the point I want to go into again although it was not raised to-day, because I think it is important in view of what was said last time. On the Committee stage, reference was made to the situation which may arise when goods are sent to this country for sale on commission, either through an auction or by a commission agent acting for the exporter. The noble Lord, Lord Stonham, asked what value there would be in a warranty in such circumstances. As he is not here to mention it this time, he may have found out the answer, but I think the House should know it. A person charged with an offence can rely only on a warranty given to him by the person from whom he bought the goods. A commission agent is not a principal, does not buy goods; therefore Clause 25 does not apply to him. But if a British importer—that is, a principal—buys goods accompanied by a warranty from a principal resident abroad—not an agent—whether he buys the goods at an auction or through an agent, he can rely on that warranty provided that he takes reasonable steps to check its accuracy.
The defence of warranty is one of the most important safeguards for traders in the Bill and it would, we think, be an unreasonable discrimination against an importer, as opposed to a trader who is not an importer, and against imported goods, too, to withhold this defence from all traders who import goods, because that is what these Amendments would do. In our opinion, the additional requirement for importers to take reasonable steps to check the accuracy of the statement of warranty given by an overseas supplier is sufficient protection for purchasers in this country, and I would therefore ask the House to reject the first two Amendments.
The third Amendment is, as the noble Lord, Lord Latham, said, intended as an alternative should the House reject the first two Amendments. This Amendment would make it impossible ever to designate Northern Ireland or other countries in the British Isles for the purposes of this clause. With the clause as it is, it 1149 would be possible to designate, for example, Northern Ireland if the Board of Trade were satisfied that it would be proper to do so, having regard to the law in force in Northern Ireland.
§ LORD LATHAM
My Lords, may I interpose for a moment, for the convenience of the House? Ought we not to bring Clause 28 into the discussion at this stage?
§ LORD DERWENT
I was wondering whether the noble Lord would deal with Clause 28 when he, comes to it. I am just dealing with this as part of my argument. His Amendment on Clause 28 should be gone into in slightly more detail. I am just saying what the effect of this Amendment would be. Goods from Northern Ireland, once it was designated, would no longer be treated, for the purposes of this clause, as though they were imports from a foreign country. That is what we come to in Clause 28. But if Amendment No. 11 were accepted, those countries in the British Isles could never be designated; and the argument whether they should be we come to later. I hope I have explained adequately, both on the previous occasion and this—I am saying this in reference to these Amendments—that the Government think it right and proper to provide for the designation of countries within the British Isles. Therefore, as regards Amendment No. 11, I would ask your Lordships not to accept that because, if it was passed, Clause 28 would have no effect and we could never designate a country inside the British Isles if we wanted to.
I hope I have persuaded the noble Lord, Lord Latham, but I would ask the House not to accept those first two Amendments. I know the noble Lord does not like my phrasing, but I think they would be quite unwarranted discrimination against an importer as opposed to any other trader, without giving any really appreciable additional protection to the consumer.
§ LORD LATHAM
My Lords, would the noble Lord tell the House what is the present situation as regards warranties given by exporters from abroad?
§ LORD LATHAM
It is very material for the House to judge whether this proposal is a new proposal which changes the present law as regards warranty for goods imported or whether it is not. If it is the case that this is a new proposal, one is entitled to be informed as to what has been the experience without this proposal. Where is the warranty in respect of the provision?
§ LORD DERWENT
My Lords, I ought not to speak again, but with the permission of the House and as the noble Lord thinks that this is such an important point I would point out that the Food and Drugs Act covers pre-packed food and provides warranties in respect of imports if the importer has ascertained the accuracy. The wording of this is rather different, and I do not think it is much wider than the present law. The effect of the present law is that pre-packed food is provided with a warranty under the Food and Drugs Act in respect of imports if the importer has ascertained the accuracy. In this Bill he has to check the accuracy.
§ LORD LATHAM
But this is an innovation. What has been regarded as being satisfactory up to the present is expected to be unsatisfactory in regard to the future. That is what I am seeking to show. If that be the case, then the noble Lord should give some evidence of the need for this extension of the proposals as regards warranty. If I may say so with respect, I think the House ought to have been informed that this is a departure from the present law. It is an extension of the present law. In the circumstances, I regret that I am unable to withdraw the Amendment.
§ On Question, Amendment negatived.
§ LORD LATHAM
My Lords, as I indicated at the Committee stage, the purpose of this Amendment is to put 1151 the warranty of persons of so-called designated countries—as to which I shall have something to say when we reach Clause 28—on the same footing as warranties from other countries—namely, to require persons relying on them to prove that they had also taken reasonable steps to check the accuracy of the warranty statements. I submit that importers from designated countries ought not to enjoy an exemption from the requirement to make reasonable checks which they would have to do in the case of imports from other countries, including, for instance, Commonwealth countries. In those circumstances, I beg to move the Amendment.
Page 29, line 40, leave out ("and any designated country").—(Lord Latham.)
§ LORD DERWENT
My Lords, as we shall come on to this question again, shall treat it only comparatively shortly now. I should like to deal with it at greater length later, unless the noble Lord would like me to deal fully now with his Amendment to omit Clause 28. But my objection to this Amendment is, first, as I have said, that if it were carried we should never be able to designate a country inside the British Isles as one of the designated countries. I would just add that we believe that it is advisable, where possible, inside the British Isles, to have the same sort of laws and to be able to trade without all these restrictions with Jersey, Northern Ireland and so on. I shall again be referring to that matter when we come to Clause 28.
The Board of Trade, as will be seen when we come to that clause, will designate a country only in cases where the law of that part of the British Isles is, on the question of weights and measures, roughly equivalent to the weights and measures law in this country, where they feel satisfied that action will be taken against any defaulting trader. I must resist this present Amendment because, as I say, we could never have a country in the British Isles as a designated country even if we were satisfied that their law was the same as ours and that action will be taken. The country would not be designated unless the Board of Trade were so satisfied. I must oppose this Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 26 [Additional defences and safeguards for traders]:
§ LORD DERWENT
My Lords, I spoke on this Amendment when I spoke on No. 8, which was consequential on this one. I beg to move.
§ Amendment moved—
Page 31, line 42, at end insert—
(2A) In the case of a sale by retail of food, not being food pre-packed in a container which is, or is required by or under this Act to be, marked with an indication of quantity, in any proceedings for an offence under this Part of this Act or any instrument made thereunder by reason of the quantity delivered to the buyer being less than that purported to be sold, it shall be a defence for the person charged to prove that the deficiency was due wholly to unavoidable evaporation or drainage since the sale and that due care and precaution was taken to minimise any such evaporation or drainage.
(2B) Without prejudice to any defence under subsection (2) or (2A) of this section, in any proceedings for such an offence in respect of any goods as is mentioned in the said subsection (2) it shall not be a defence under subsection (1)(a) of this section for the person charged to prove that the commission of the offence was due to some cause beyond his control if that cause was one which should reasonably have been foreseen and for which allowance could reasonably have been made in stating, the quantity of the goods or in making up or making the goods as the case may be."—(Lord Derwent.)
§ On Question, Amendment agreed to.
§ Clause 28 [Offences originating in certain countries outside Great Britain]:
§ 6.5 p.m.
§ LORD LATHAM moved to leave out Clause 28. The noble Lord said: My Lords, this Amendment was before your Lordships on the Committee stage. It is regarded as being more important than the Amendment to Clause 27, to restrict the warranty defence to warranties given by persons resident in Great Britain. Clause 28 is entirely new to legislation of this kind, and provides the defence that the offence was due to an act or default by some other person in a designated country. This indeed opens a wide door, as it would provide a defence even where the offence was due to a wilful act or default, a calculation to deceive and actions of that kind, by a 1153 person in a designated country, and any such person could not be made answerable to our courts. Despite the intention of the Board with regard to designated countries, as described by the noble Lord in opposing the Amendment on the Committee stage, it is doubtful whether, in practice, the offences would ever be adequately dealt with.
§ The principle of this clause may be excellent so far as persons within the jurisdiction of our courts is concerned; but in my submission it is quite illogical, and even slightly ridiculous, to extend it to culprits and defaulters who cannot be made accountable to our courts for their actions. The noble Lord said that one of the purposes of this designation is to bring the law as regards weights and measures in Northern Ireland, the Channel Islands and the Isle of Man ultimately into agreement with our own. This may be a most desirable thing to do. But, meantime, the consumer here is without adequate protection. What is the present position as regards these designated countries? Is the importer from them immune?
§ The Minister referred to the Government of Ireland Act, 1920. That Act, of course, has been in operation a fairly long time. Have we found it to be disadvantageous in the degree and measure that it is necessary to alter the law to the prejudice of the consumer? Perhaps the noble Lord will tell the House. As I understand it, this grant of immunity is now being made for the first time. Why is it being dealt with now? Why is it necessary to create this additional protection to the importer? After all, it is the trader who puts the offending goods on the market. He has his redress against the exporter, especially from a designated country. The consumer has no additional immunity but in fact has less protection. There are many provisions for the protection of a trader or the manufacturer who has a right of civil action against him. The supplier or the consumer, as I have said, has none, not even on proceedings and conviction, which might be a deterrent. Here again the Minister, if I may say so, seems to be more solicitous for the trader than for the consumer. It is an attitude of mind which I think is regrettable and in order to avoid casting this additional burden 1154 upon the consumer and removing from him more protection I beg to move this Amendment.
Leave out Clause 28.—(Lord Latham.)
THE EARL OF MANSFIELD
My Lords, I think that a little elucidation might be as well on this. Your Lordships will be aware that in the past few weeks there has been an outbreak of typhoid in this country. I do not think that any proceedings have been brought, so the matter is not. sub judice. That outbreak is now alleged to have been due to meat imported from a certain foreign country which had been contaminated by being cooled in polluted water after it was put into the tin. If this clause were given effect to, what would be the position of a person who had been gravely ill as a result of eating this meat? Would the importer be able to get out of all responsibility? Would, therefore, the consumer have no redress whatsoever, save by the probably impossible method of suing the foreign exporter overseas?
§ LORD DERWENT
May I say first, in reply to my noble friend Lord Mansfield, that the case which he has quoted will not be affected by this clause because the country from which the meat came is not inside the British Isles.
§ LORD DERWENT
If it were a designated country, it would have to be inside the British Isles.
So far as I can see, the principal objection of the noble Lord, Lord Latham, to this provision is that it is new. But, my Lords, it is not new. It is new in weights and measures legislation, but it is not in the least new in other ways. The provisions of this clause follow very closely Section 114 of the Food and Drugs Act, 1955. I know that that is not concerned with weights and measures but it is the same sort of thing. Under that Act, Northern Ireland have been given this special treatment because they have introduced comparable legislation.
§ LORD LATHAM
Would the noble Lord say what the situation is with regard to the Isle of Man and the Channel Islands?
§ LORD DERWENT
I do not know if they have been designated, but I do not think so—if indeed "designated" is the correct word in this legislation.
§ LORD STONHAM
If the noble Lord will refer to the Bill he will see that of course they have been designated.
§ LORD DERWENT
I am talking about the Food and Drugs Act. If the noble Lord, Lord Stonham would listen to what the noble Lord, Lord Latham, said he would realise that.
I do not know quite why the noble Lord, Lord Latham, thinks the importer is such an objectionable person, but I hope to show that under Clause 28 the consumer will not be any worse off than he is now. The object of the clause is to enable the Board of Trade to give a defence to traders in this country against whom an offence is alleged or charged under Part IV of the Bill, if they can establish that it was due to the act or default of some person in a designated country, for example, in Northern Ireland, if that country should in due course be "designated" for this purpose by order. The effect of deleting the clause would be to render traders (who might sometimes be retailers) who were supplied direct by packers in the countries concerned, liable for anything found wrong with the goods supplied by that packer. They would have no protection against the manufacturer. This is a clause which, I suggest, is appropriate and will be widely welcomed. We do not want to erect any unnecessary barriers between the countries which form the British Isles; indeed, where those barriers exist we should like to do away with them.
§ LORD LATHAM
Is that not a matter for general legislation and not as regards one particular activity?
§ LORD DERWENT
We are dealing with the Weights and Measures Bill. If the Board of Trade are satisfied that the requirements of the law in these countries inside the British Isles justify such a step, then, and only then, they can designate these countries for the purpose of any or all of the provisions of this Bill by order. They can designate the country and make this Bill apply in part to the designated country.
§ LORD DERWENT
May I go on a little further? It is not quite as simple as that. The whole essence of this "designation" procedure is to ensure a measure of reciprocity with these territories in the British Isles in weights and measures matters.
It is important to note that foreign countries are not covered by this clause. Moreover, the Board of Trade would not think it proper to designate one of the countries mentioned for the purposes of this clause unless they were satisfied that, if a court in this country concluded that the commission of an offence was due to the act or default of a person in the other designated country, the authorities in that designated country would have the power and would be willing to consider using that power to institute proceedings against the person concerned. This is obviously a matter for negotiation before the Board can designate a country, but if they are satisfied with regard to the other country's law then they may designate the country.
Similarly—and this is just as important—if a designated country reported to the Board of Trade an alleged offence by a packer in Great Britain, the Board would pass on the allegation to the local authority in whose area the packer carried on business, so that action could be taken to watch for any repetition of the sort of fault attributed to him, and if sufficient grounds were found, for proceedings to be taken against him by the local authority in that area. That is what would happen here, of course.
Your Lordships will appreciate that what I have said is virtually a repetition of what I said in answer to the identical Amendment tabled during the Committee stage of the Bill. I make no apology for this, because in my view no new points have been raised on this occasion. To say that because something has not happened inside the British Isles, therefore we should not get anything new and try to get reciprocity between the different parts of the British Isles is a theory which I cannot really accept.
§ LORD STONHAM
My Lords, I really do not think that the noble Lord, Lord Derwent, answered my noble friend's case. He said this—and I took it down: "The noble Lord, Lord Latham, thinks the importer an objectionable person". That was not my noble friend's case at all. 1157 What he wants, what indeed we want, and what I thought the noble Lord would want, is that importers should be subject to approximately the same conditions as manufacturers and producers in this country. Surely that is a reasonable case to put forward. So far as the consumer is concerned, unless we have that kind of position it means that the consumer has no redress in the event of trouble. The noble Earl, Lord Mansfield, in an intervention, put up a case which the noble Lord said he would answer subsequently, but in my view it was not properly answered.
The basic position is that in this Bill the Government are creating a class of exporters to this country whom they call "designated countries", and the noble Lord, Lord Derwent, said that the real reason for this was that we did not want to divide the outlying territories, as it were, from the mainland of the United Kingdom—or words to that effect. I think that is a very praiseworthy object which we should support, but surely it is not right, in doing that, to create a special position for them.
Perhaps I may take another analogy. There are different conditions with regard to income tax in the Channel Islands, and some people hie themselves off to the Channel Islands in order to escape what they regard as the punitive income tax in this country. Sometimes I think they are welcome exports from the United Kingdom mainland, and we could do without them. But this is a rather different thing. We are dealing here, as the noble Lord reminded my noble friend just now, with the Weights and Measures Bill, which is fundamentally designed to protect the consumer. We ought not to agree, therefore, that
§ certain offshore territories should be able to send their products here and that, if there were anything wrong with them, different conditions with regard to the protection of the ultimate purchaser, the consumer, would apply from those in force if those goods were produced in this country.
§ I do not underestimate the value of the wishes of the Government in introducing this particular Clause 28. But in my view it is entirely misconceived. When we are thinking in terms of weights and measures and the proper control, inspection and action where goods are faulty, it is wrong that we should create, as it were, this special class of suppliers against whom in certain circumstances, because of the reliance on the warranty, no action is possible. I do not think that the noble Lord has justified this state of affairs. I do not think he has taken this matter any further than we were in the Committee stage. This is something that we feel is quite indefensible, and it is an indication that the Government are prepared to take the risk of allowing importers opportunities to escape the consequences of selling defective imported goods. That is impossible to deny. That is just what this clause means, and it does not matter whether the goods come from the Channel Islands, the Isle of Man or Northern Ireland. That is the effect of this clause. We think that it is fundamentally wrong, and for that reason we think that this particular Amendment should be pressed.
§ 6.25 p.m.
§ On Question, Whether the said Amendment (No. 14) shall be agreed to?
§ Their Lordships divided: Contents, 20; Not-Contents, 67.1159
|Alexander of Hillsborough, E.||Hughes, L.||Stonham, L.|
|Archibald, L.||Latham, L.||Summerskill, B.|
|Burden, L. [Teller.]||Lawson, L.||Walston, L.|
|Burton of Coventry, B.||Listowel, E.||Williams, L.|
|Champion, L.||Lucan, E. [Teller.]||Williams of Barnburgh, L.|
|Crook, L.||Sainsbury, L.||Williamson, L.|
|Henderson, L.||Sherwood, L.|
|Abinger, L.||Auckland, L.||Bridgeman, V.|
|Ailsa, M.||Balfour of Burleigh, L.||Carrington, L.|
|Albemarle, E.||Bossom, L.||Chelmer, L.|
|Aldington, L.||Boyd of Merton, V.||Clitheroe, L.|
|Atholl, D.||Brecon, L.||Coleraine, L.|
|Colyton, L.||Jessel, L.||Robertson of Oakridge, L.|
|Conesford, L.||Kinnoull, E.||St. Aldwyn, E. [Teller.]|
|Craigton, L.||Lansdowne, M.||St. Oswald, L.|
|Crathorne, L.||Lloyd, L.||Salisbury, M.|
|De La Warr, E.||Long, V.||Salter, L.|
|Denham, L.||Lothian, M.||Sandwich, E.|
|Derwent, L.||Mabane, L.||Somers, L.|
|Dundee, E.||MacAndrew, L.||Soulbury, V.|
|Ferrers, E.||McCorquodale of Newton, L.||Spens, L.|
|Fortescue, E.||Mancroft, L.||Stuart of Findhorn, V.|
|Fraser of Lonsdale, L.||Mansfield, E.||Swinton, E.|
|Goschen, V. [Teller.]||Margesson, V.||Tenby, V.|
|Hailsham, V. (L. President.)||Massereene and Ferrard, V.||Tweedsmuir, L.|
|Hastings, L.||Mills, V.||Waldegrave, E.|
|Home, E.||Monsell, V.||Waleran, L.|
|Horsbrugh, B.||Poole, L.||Ward of Witley, V.|
|Ilford, L.||Remnant, L.||Woolton, E.|
Moved accordingly, and, on Question, Motion agreed to.
§ Resolved in the negative, Amendment disagreed to accordingly.