CONSUMER PROTECTION BILL [H.L.]

§ THE MINISTER OF STATE, BOARD OF TRADE (LORD BROWN)

My Lords, I beg to move that this Report be now received. I wonder whether, in moving this Motion, I might have your Lordships' permission to draw attention to an omission on my part on the Committee stage. In the course of the discussion on recommitment of the new clause relating to improvements proposed to be inserted after Clause 30 I gave the impression that the court in a criminal case has power to order an acquitted defendant to pay the costs of the prosecution. The noble Lord, Lord Cawley, questioned this. I am advised that he was quite right, and the court has no such power.

Moved, That the Report be now received.—(Lord Brown.)

§ BARONESS BURTON OF COVENTRY

My Lords, I wonder whether I may make a few remarks concerning the timetable of this Bill. As the House will recall, the Second Reading took place on November 14. Two weeks later, on November 28, other noble Lords were good enough to support the protest that I made concerning the way in which matters had been arranged, resulting in the proposed Committee stage due to commence that day coming on so late that day that it had to be postponed. We then had three Committee days, November 30, December 4 and December 5. I think it would not be unfair comment to say that the outcome of these three days was less than satisfactory.

640 On December 14 the Government moved for recommitment of the Bill on the Monday following, December 18, instead of taking the Report stage on that date. The noble Lord, Lord Brown, had been good enough to write to those Members particularly interested in this Bill on December 12 explaining, among other details—and I quote: We will ask to delay the consideration of Clause 11 with its special difficulties until after Christmas. This might be the moment to explain, for the benefit of those noble Lords who have not been involved personally in these discussions, that Clause 11 is the main clause of the Bill. Again I think it would not be unfair comment to say that this clause as originally drafted was unsatisfactory, as admitted by the Government during the Committee stage on December 4, when they stated their intention to redraft Clause 11. We then come to the first day of Recommitment, on December 18, and from there move on to the second and final day, January 22, last week. This was six weeks, all but one day, from the Minister's letter of December 12, and seven weeks from the statement made in Committee on December 4.

At the commencement of business on January 22 I asked if it was the intention of the Government to make a statement on Clause 11, to which the Minister replied that he would do so on the then next Amendment. To me it seemed discourteous to the House, and particularly to those noble Lords who had given a great deal of time to this problem, that we should be expected to discuss that day, seven weeks after we had been told that the clause would be redrafted, a Bill without this vital part. The Minister (it appears in col. 22 of Hansard for that day) apologised for the fact that the redraft was not ready. At col. 28—and I trust that I paraphrase him fairly—he did not consider that Clause 11 would be available to us even on Report, and he hoped we should agree that the Bill should be passed without the drafting of the ideas he had put forward, leaving those items to be dealt with in another place.

The noble Lord, Lord Drumalbyn, at cols. 31 and 32, said: We could carry rather too far the idea that everything that goes out from this House should be perfect and not need to be amended 641 in another place. It is well known that Bills come from another place and are amended here by the Government in line with discussions that have taken place. I cannot for the life of me see why the same process should not apply in reverse. That is quite true, and I should not dream of dissenting. But it is not the point at issue here, and it is not what I was putting forward that day. The noble Lords, Lord Drumalbyn and Lord Brown, spoke of the length of time the Bill had been in this House, and advanced this as a reason for not waiting for Clause 11. I think that what I have said earlier to-day shows where any responsibility for this lies, and it is not with your Lordships.

To-day we are being asked to pass a Bill without having before us the main clause. There is no question of our thinking that what we send from this House to another place should be perfect and in no need of amendment. But surely we should at least be able to see what we are sending, and to amend it ourselves in the first place. I think all this is discourteous to your Lordships' House. I think it shows a contempt for the work that we do, and I suggest that we should not have been asked to take the Report stage until the redrafted Clause 11, the main clause of this Bill, was available to us for consideration.

§ LORD AIREDALE

My Lords, I should like to support every word of what the noble Baroness, Lady Burton of Coventry, has said. I can understand that a situation may arise in which during the course of a Bill through one of the Houses of Parliament somebody suddenly discovers some lacuna, and when, because the next stage of the Bill is arranged for the following week, the Government may say: "We will, of course, look at this, and we shall have to do some redrafting. We have only discovered this now, and it cannot be done before next week". But we are not discussing that case at all. As the noble Baroness has said, this matter has been under discussion between, I understand, the Board of Trade and interested bodies for seven weeks; and still Her Majesty's Government have not been able to redraft an important clause of their own Bill. I think there are differences of opinion as to how important the clause is. I believe the noble Lord, Lord Hawke, thinks that Clause 11 is a bad clause, and that any 642 redrafted Clause 11 is going to be a bad clause; and it may be that that is so.

What I would say is that, if there is any danger of there being an unsatisfactory new version of Clause 11, let us see it in this House of Parliament before the Bill is passed by this House: because surely the general rule must be that this House is failing in its duty if it passes a piece of legislation which it knows to be in an unsatisfactory state. Are we to be told that it will be quite all right because it will be put right in the House of Commons; that the Bill will then be reintroduced into this House, and we shall be able to see the redrafted Clause 11? If that is going to be said, are we quite sure that we shall not be told, when the Bill comes back to us: "It is getting rather late in the Session, and there is not very much Parliamentary time. Do you want to endanger this Bill altogether? Are you going to risk a disagreement with another place?". This is going to make it very embarrassing for us if we find that genuinely we wish to amend a redrafted, important clause which we had never seen on the fiat occasion when the Bill was before us.

I think this is an important constitutional point. I venture to suggest that the noble Baroness is quite right when she says that the House is being treated with discourtesy. Why did not the Board of Trade use the Parliamentary timetable as something with which to goad the interested bodies whom they were consulting? Why did not the Board of Trade say to those people: "Come along; you must give us your views in time to put the redrafted clause in front of the House of Lords, because this we have to do." I think this is a most unsatisfactory state of affairs, and a reason why we should not receive this Report to-day.

§ BARONESS ELLIOT OF HARWOOD

My Lords, may I say that I think my office must have been an interested party, since a discussion has been going on between the Consumer Council legal side and the Board of Trade, and I have seen a draft of Clause 11 which we in the Consumer Council put forward ages ago. No doubt it was not satisfactory, but it was put forward long before Christmas. Therefore, I think we must have been—and I am grateful that this should be so—treated as an interested party.

643 With regard to what has been said by the noble Baroness, Lady Burton of Coventry, I think that she has put the whole timetable very clearly. It seems odd to me. I am not very experienced in these matters, but I do not understand why, after seven weeks or eight weeks, during which interested parties have been consulted and discussions have been going on, we should still not have any redraft, and we should discuss here to-day, on Report, Amendments to Clause 11, which apparently is going to be taken out of the Bill anyway, because evidently it it is not a clause the Government want. Otherwise, the noble Lord, Lord Brown, would be backing it. As I understand it, he has not been doing so, and a completely new clause is going to be put up in another place.

This procedure is rather mysterious, and I simply do not understand it. I should have thought that there had been plenty of time to bring forward a new clause. If this clause is not the one which the noble Lord and the Board of Trade want, why is there not a blank, so that we do not waste time discussing it at all, but simply wait until a new clause comes up? My own feeling is that we should have been able to have a clause which we could discuss, which would be recognisable and which another place was going to discuss; but that is something we simply do not know about at all.

§ LORD STRABOLGI

My Lords, I should like to say, with great respect to my noble friend Lady Burton of Coventry, and the noble Lord, Lord Airedale, that I am afraid I cannot agree with them. I must apologise to my noble friend because I did not hear all of her speech, but I know very well what she thinks about this matter—indeed, she referred to it on the Committee stage. But we cannot have it both ways. All the way through our proceedings on this Bill, on the Second Reading and all the way through the Committee stage, we have urged the Government to consult with the interests concerned themselves before clauses are drafted. Here we have an offer by my noble friend the Minister to consult with the interests concerned and to get the clause right. These consultations take time, a very long time, 644 and rather longer than I think the noble Baroness, Lady Elliot of Harwood, gives credit for.

§ BARONESS ELLIOT OF HARWOOD

Eight weeks seems a long time.

§ LORD STRABOLGI

There are a great many interests concerned and to be consulted, and I think it is important that this clause should be drafted in the correct way. We have had many examples of clauses drafted somewhat naïvely and without experience and without consultation with the interests concerned. One example concerned the food labelling regulations, which were in a most chaotic state, and indeed are still by no means satisfactory. That, of course, relates to another Department. Here we have the Board of Trade, who I think have been most co-operative throughout, making an offer and I think we must give them a chance to get this clause right. It can then be submitted to the other place, and afterwards this House will have another chance to consider it when the Bill returns here.

§ LORD DRUMALBYN

My Lords, I find myself in agreement with the noble Lord, Lord Strabolgi, rather than with the other noble Lords who have spoken, for this reason. One does not normally from one Front Bench come to the aid of a Member on another Front Bench, but I think that the noble Lord, Lord Brown, has been conducting this matter with the utmost frankness, and I think that in this case he is a victim of his own frankness. It would have been perfectly easy for him to let this clause go as it was. And, mark you, the clause is workable; there is no doubt in it as it now stands. He could have done that without telling your Lordships that he was intending to amend it in another place, and no one would have complained at all.

§ LORD AIREDALE

My Lords, it would not have been honest.

§ LORD DRUMALBYN

I have said that I think the noble Lord has been extremely frank in the way he has dealt with this matter, and I do not think he should necessarily be pilloried because he has been frank. We had before us a clause that is perfectly workable. It is perfectly easy for the noble Baroness—she has 645 Amendments down to this clause—to put her points. The Government, I am certain, will take into account the points she has made, and those points may influence the further drafting of the Bill.

If—I say "if"—an Amendment is made in the other place the Bill will return here. If it now goes to the Commons there is a great deal more chance of its coming back to us in time for us to have a proper discussion of it, than if it is held up until further consideration of the Bill takes place. On the other hand, the noble Lord, Lord Brown, has made it quite clear that it is by no means certain it will prove feasible to amend the clause as it now stands, to redraft it altogether; and I, for my part do not think there would be any great tragedy in that. I think we ought to proceed with business and agree to this Motion. I hope the noble Lord will be allowed to have his say, and I hope your Lordships will accept what he has to say because I think he deserves some credit in this matter.

§ LORD BROWN

My Lords, I am extremely grateful to the noble Lord, Lord Drumalbyn, for what he has said, because I was feeling a little ill done by as a result of the remarks made. I make this short statement because, whether it is due to words I have used, or to those who heard them, there is certainly confusion about this matter. First, Clause 11 is not the main clause of the Bill, though opinions will differ on this. It is a very important Bill, notwithstanding this clause. Secondly, the clause, as Lord Drumalbyn said, could quite well stand as it is now in its amended form. It would certainly render some additional protection to the consumer as it is, and it is enforceable as it stands. Thirdly, the alterations to which I referred at the last Committee stage are not necessarily alterations that it will be possible to make. They have to be worked out. I cannot commit the Government and have not done so, to making further alterations, and there may not be a complete redrafting of the entire clause; there may be an addition to the clause as it stands.

Fourthly, we have not had eight weeks to consider a redraft, because previous discussions about Clause 11, and consultations with interested parties, did not throw up in any form whatever a feasible 646 idea for carrying out the original intentions of the Bill. Nor, with respect to this House, has such an idea arisen here which would have made the protection originally envisaged in such a way that it would be enforceable at law. The officials who have been handling this matter have spent weeks trying to devise a method of drafting this clause which would render it enforceable at law, and up to five days before the last Committee stage no feasible idea had arisen. So the idea which I disclosed to the House—very unwisely, I think now—had been under consideration for perhaps as little as four days, and there had certainly been no time for consultation about this particular idea. Fifthly, we have not therefore yet consulted at all on this particular idea, and it will take time to do so. We must go to some of those whom we previously consulted to see whether or not it is feasible.

That is as clear a statement as I can make of the situation, and I can only add this. With the best will in the world we in the Board of Trade, or the Government, cannot produce ideas at will to make the intentions of some noble Lords in this House workable. It is not always possible to solve every problem presented to us. And if, indeed, the ideas which might turn out to be workable come rather late in the day, instead of earlier. I cannot accept that as condemnation. Rather I think I should be congratulated for going on thinking about this until the end of the day to see whether we could produce something; and if something can be made workable by some very skilled drafting and is produced at a late hour, I think it is hard for me to be accused of all I have been accused of simply because I went on trying.

§ LORD DRUMALBYN

My Lords, I should like to put a point to the noble Lord, Lord Brown. We have regarded it as a great improvement that "false" should mean "false to a material degree" for the purposes of this Bill. We think this is a point of great substance. If the noble Lord will look at the con- 648 struction of this sentence he will see that virtually it amounts to (x = x - y) and we are afraid that the "y" may be nothing at all in that case. I do not think this is likely to mislead many of Her Majesty's judges as to what is meant, but at the same time I think it is much more correct to say that "a false trade description means a trade description which is false to a material degree". I would also invite the attention of the noble Lord to the Labelling of Food Regulations 1967 (No. 1864) (Food and Drugs) in view of what the noble Lord said about definitions. If he will look at pages 3, 4 and 5 he will find that almost every one of the interpretations, if it does not say "includes" says "means". For example, "'flour confectionery' means any solid or semisolid product …" Since we are giving an artificial interpretation to a particular phrase and not a natural definition, I should have thought "means" was obviously correct. I hope that at last the noble Lord will be able to accept this Amendment.

§ LORD BROWN

My Lords, as has been pointed out already, this Amendment has been debated twice, once in Committee and again on recommitment. I recited at great length at the last stage the reasons why I did not see my way to accept the Amendment, and I do not propose to go over the whole ground again. There is a clear difference of opinion in regard to this matter. Clause 3(1) is commonly interpreted as "for the purposes of this Bill". This is always in front of these definitions. I can see absolutely nothing wrong with the words: A false trade description is a description which is false to a material degree". The interpretation at the beginning is commonplace. I think the noble Lord is quite wrong. The subsection does not make a statement of fact; it lays down a rule of law, namely, that in this Bill a false trade description is a trade description which is false to a material degree. I am afraid if he cannot see my point of view, and I certainly cannot see his, we must agree to differ, but I hope the noble Lord will withdraw the Amendment.

§ LORD AIREDALE

My Lords, I think that last sentence is a fair summary—we must agree to differ.

§ THE LORD CHANCELLOR

My Lords, there being an equality of votes, in accordance with Standing Order No. 49 (which provides that no proposal to amend a Bill in the form in which it is before the House shall be agreed to unless there is a majority in favour of such Amendment), I declare the Amendment disagreed to.

§ LORD BROWN

My Lords, when we were considering Clause 6 in Committee, the noble, Lord Cawley, pointed out that it spoke of a person being deemed to offer goods for supply, whereas Clause 1 spoke of a person offering to supply goods. This Amendment, which is identical with the suggestion for improvement of the clause made by the noble Lord during our earlier debate, removes this inconsistency. I beg to move.

§ LORD CAWLEY

My Lords, I am grateful to the noble Lord, Lord Brown, for this Amendment. I think it is interesting that in the former Bill in the last Parliament this error went all the way through this House to another place and nobody noticed it here, including myself. I would thank the noble Lord again.

§ LORD DRUMALBYN

moved, in subsection (1), to leave out the second "of" and insert "offering to supply". The noble Lord said: My Lords, this Amendment also looks like a purely verbal one, 651 but it is not. The purpose of the Amendment is to restrict the power of the Board of Trade to make orders requiring information to be given in advertisements which offer to supply goods; that is to say, those which invite readers to purchase goods by writing to the advertiser direct and ordering. First, may I say a word about the background of this clause? I have searched the Molony Committee Report in vain for a recommendation that the Board of Trade should be given such a power as is given in Clause 9. It is true that Molony thought that more information should be given in advertisements, but, so far as I can see, the Report did not recommend that powers should be sought to require it to be given.

Secondly, in Committee, your Lordships tried to elicit from the Government what justification there was for requiring such a power as is contained in Clause 9 and how the Board of Trade proposed to use it, and the noble Lord, Lord Brown, said: It might for instance be a good thing for shoppers to have their attention drawn in advertisements to the fact that particular equipment may be needed with the goods, such as plumbing with a washing machine."—[OFFICIAL REPORT, 30/11/67, col. 325.] It would certainly be reasonable if the advertiser intended the reader of the advertisement to place an order for a washing machine by post or telephone in response to the advertisement; he should warn the buyer that the expenditure might not be limited to the cost of the washing machine. But if the advertisement was merely intended to encourage the reader to think of buying a washing machine, or in particular buying the washing machine actually advertised, such a warning would not be necessary, because the reader would naturally go to the dealer and inquire, and compare the merits of different machines and the prices, the installation costs, credit terms, all the rest of it.

One cannot legislate for extreme cases. I remember a lady in the Outer Hebrides instructing my mother many years ago to buy her a washing machine. My mother then inquired whether there was any electricity in this part of the Outer Hebrides, and of course there was not. One cannot legislate for that sort of thing.

652 The noble Lord went on to say: We cannot agree that the power should relate only to safety. There is, for example, mail order selling. And he said, in regard to goods bought as a result of mail order selling: You may have to make clear that if they are bought, the cost does not stop at the price of the goods: there may be substantial installation charges to be met. I am inclined to concede that, but only for the reason that the prospective customer in mail order selling is being invited to order goods without having had a chance to inspect them or to ask questions about them; that is, without having had a chance to behave like a normal, sensible shopper. The purpose of this Amendment is to cover all such cases: the bargain spaces in Saturday popular newspapers, mail order catalogues, advertisements containing coupons for ordering the goods, which coupons the readers are invited to fill up and return to the advertiser and so on. I would suggest to your Lordships that so far the noble Lord has not attempted to make out a case for anything more than this; yet the clause as drafted applies to any kind of advertisement for any kind of goods.

I recognise that the Government have already amended the clause, and we are grateful for that. They have amended it so as to make it necessary for an order to prescribe the description of advertisement to which the order applies. But it still remains true that the order can cover any kind of advertisement. We are still being asked here to give the Government an absolutely blank cheque. The provision about consultation is only a safeguard if the Government will accept the advice tendered when they consult, and this, in the most recent example, the case of food labelling, they have signally declined to do.

I have tried in vain to find out whether the expression "information relating to the goods" which is involved here covers terms of sale. I hope that the noble Lord will be able to answer this question at least, because what we are trying to do is to find out what the Government envisage they want these powers for. I suggested at an earlier stage that they might want them to cover terms of sale. We learn from a Written Answer by the Minister of Technology in another place last Thursday that the President of the 653 Board of Trade is studying the suggestion contained in the Report of the National Board for Prices and Incomes on television and radio rental and relay charges— about the desirability of requiring suppliers to include in advertisements information about charges payable over a period of years."—[OFFICIAL REPORT, Commons, 25/1/68 col. 187.] As I have had to study this subject myself, I know how difficult it is to lay down requirements about information that will not tend to confuse rather than enlighten readers, because of the infinite variety of credit terms, terms of one sort or another, that are offered. And I would say that one cannot hope to require all the information that would be needed by all readers with their wide variety of wants. All one can do is to try to ensure that such information as is given is not presented in a way that is liable to mislead; and this clause is not needed for that purpose. Perhaps the noble Lord can tell us at any rate whether the clause as drafted would enable the Board of Trade to require the kind of information the Prices and Incomes Board has suggested might be desirable, and whether information about rental terms varying over a period of years is "information relating to the goods", or whether it is merely information relating to the sale of the goods. I wonder, also, whether it covers hire-purchase terms. Does it cover price?

The main point I would drive home here is that, while ordinary advertisements may induce people to decide to try something relatively inexpensive, sensible folk will not be persuaded by an advertisement to buy or hire some costly piece of equipment without making further inquiries; and therefore there is no need to give the Government power to make orders requiring information to be included in advertisements, except in those circumstances where they are being invited to buy on trust some fairly expensive piece of equipment. For that reason, I am moving this Amendment to restrict the power to those advertisements which offer to supply goods and invite people to order them without inspection and further inquiry. This is the purpose of the Amendment, and it is the purpose of this Amendment that I commend to the noble Lord. I beg to move.

§ LORD BROWN

My Lords, I may have misled the noble Lord in the previous discussion on this matter by emphasising one part of my argument against a similar Amendment which he put down, and possibly dealing with the other part of it from innuendo. The point is, I am advised, that as drafted this Amendment would restrict the scope of the clause in a considerably more drastic manner than the noble Lord himself understands at the moment. If, as an hypothesis, I had been able to accept the arguments that the noble Lord has just presented, which on balance I do not, I should still have been unable to accept this Amendment for the following reasons.

The expression "offer to supply" has a well-recognised legal meaning. It is an expression used to signify a firm offer to enter into a contract, the mere acceptance of which offer makes the contract binding. I understand that few advertisements would amount to offers to supply within this interpretation, for if they did it would mean that any person could accept the offer contained in an advertisement and take the advertiser to court if he failed to supply the goods. But this is not the position. On the contrary, most advertisements would merely be regarded as, at most, invitations to treat.

There is a serious risk that if we were to accept the Amendment the courts would interpret "offering to supply" in the strict sense, and the power of the Board of Trade to require advertisements to contain information would be restricted to the small minority of cases where an advertisement actually amounted to an offer to supply within the strict legal meaning of the phrase.

We have on earlier occasions discussed at great length our reasons for seeking the powers proposed in Clause 9, and whatever views some of your Lordships may have on that proposal, I think you must all agree that the restriction on its use which this Amendment would impose would be inconsistent with the designed purpose of the clause. It is for this reason that the Amendment is not acceptable to the Government, and in view of the possible new light that I have thrown 655 on the meaning of the words proposed, I hope that the noble Lord will see fit to withdraw his Amendment.

§ LORD DRUMALBYN

My Lords, of course, in the end I am bound to withdraw my Amendment, in view of the noble Lord's explanation. But the purpose of the Amendment has not yet, unfortunately, been served, because we have got no nearer towards seeing for what reason the noble Lord wants the powers of Clause 9. This was the purpose of moving the Amendment, and I had hoped that he would at least be able to answer my question as to whether it covers the matters referred to by the Minister of Technology in another place about rentals; also, whether it covers price, and whether it covers credit and hire-purchase. I think all these are relevant questions. If my Amendment were in suitable terms to effect its meaning—

§ LORD BROWN

My Lords, before the noble Lord proceeds further, may I just say that I am sorry I omitted to answer these questions. If the clause were left as it is, I think there is little doubt that it would be able to deal with the issues which the noble Lord raised. But it is clear that if it were amended as proposed there would be great danger that it would not be able to deal with it.

§ LORD DRUMALBYN

My Lords, if it can deal with those things, then it can deal with almost anything. This has been the complaint about the clause, that it is exceedingly wide. I feel certain that the Government will be pressed very hard in another place to say what they mean by this and will be asked to try to restrict the powers to what they really envisage they require. They cannot want everything. While I ask leave to withdraw the Amendment, I do so feeling considerable regret that, in the course of our long discussions, the Government have not been able to make clear the purposes for which they want the clause. I beg leave to withdraw the Amendment.

§ LORD BROWN

My Lords, when we last discussed this clause the noble Viscount, Lord Colville of Culross, pointed out that the private individual advertising his private possessions for sale 656 could not reasonably be expected to know whether there was a Clause 9 order in force applying to that kind of advertisement. On reflection, I think it is a little anomalous that the offence in this clause is not expressly confined to people acting in the course of trade or business. This Amendment would put matters right by limiting the offence of publishing an advertisement which fails to comply with an order to cases where the offending advertisement is of goods which are to be supplied in the course of any trade or business. I hope that this will seem reasonable to your Lordships and that you will accept the Amendment. I beg to move.

§ LORD DRUMALBYN

My Lords, on behalf of my noble friend Lord Colville of Culross, I should like to thank the noble Lord for this Amendment. May I add one comment? This Amendment will have one interesting effect. There is a practice which is all too current, I regret to say, by which traders masquerade as people not in trade or business and offer, through the classified advertisements, to sell goods. They just give a box number or something of the kind, with the clear implication that they are not in trade or business and are offering goods merely as one individual to another. It is interesting to see that traders of that description will now be within the scope of the Bill, whereas the private individual simply using the classified advertisements to offer his goods will not. Am I right?

§ LORD BROWN

My Lords, that is a rather different point. I think, on reflection, that the noble Lord is right. If it is quite clear that an advertisement is inserted by somebody who is doing so in the course of trade or business, then he will be liable to be prosecuted if his advertisement is not in accordance with the law, and that the private person will not.

§ LORD HAWKE

My Lords, the insertion of this Amendment by the noble Lord, Lord Brown, points to the difficulties of this sort of clause. He has had to exempt any private person who 657 is advertising. One thinks of the hosts of people who are small traders advertising in local newspapers and that sort of thing. They probably do not belong to a trade association, nor have they time to read all the literature. When they go along to the local newspaper office to advertise something or other, who is to advise them whether the Board of Trade has decreed that advertisements regarding a particular type of goods must contain some particular form of information? Is it the local newspaper which will be expected to keep up to date with all the requirements of the Board of Trade, or what will be the position? Otherwise an immense burden of clerical work will be thrown upon everybody in the country by these silly sort of provisions.

§ LORD DRUMALBYN

Is the noble Lord going to answer that point?

§ LORD BROWN

My Lords, I shall do so with the permission of the House, since I shall be speaking for the second time on Report stage. My reply to the noble Lord, Lord Hawke, would be this. If a person is seriously engaged in a trade or business, I do not think that it is throwing an undue burden on him to expect him to be familiar with the laws of the land governing trades or businesses. This is the general condition as applied to the country in legislation. If we were to get into a bother because we felt that a certain number of traders would find it difficult to know the law, we should be bothering over every piece of legislation we pass through the House. With respect, I do not think that this is a valid objection.

§ LORD LEATHERLAND

My Lords, my noble friend Lady Burton of Coventry and I have, I think, walked hand in hand along the consumer protection lane for many years. I remember that when I was assistant editor of one of our daily papers, I was responsible for organising what the paper called a Fair Shopping Bureau, and vie had many consultations with my noble friend on that occasion. We found that there was a great need for some agency that would take up the complaints of people who had been swindled by dishonest shopkeepers.

I find some difficulty, however, in trying somehow to reach a middle way between what my noble friend says and what the clause says. If we do not have this particular line in, which will enable people to be punished if they falsely state that their price is less than the recommended price, then we are not going to take any cognisance whatever of a recommended price. But how are we then to put an end to this racket which labels so many goods "3d. off", "5d. off", and so on, because it is obvious that when a packet is labelled "3d. off" the recommended price must be what you pay—2s. perhaps—plus 3d. Without some provision such as is in the clause at the moment, I do not see how we are going to get rid of that difficulty.

My noble friend has mentioned getting for £5 goods alleged to be worth 19 guineas. I should think any housewife who had any sense at all would know that there was something wrong there. But women are very funny creatures, and if you tell them that they are getting for 39s. 11d. a hat which is supposed to be worth £5, they will convince themselves that they have undertaken a piece of very good shopping. Nevertheless, I do not see how we can delete this line, 662 although we know that many of the recommended prices are "phoney," if we are to tackle some of the grave evils which there are in the shopping world to-day.

But I do not know that the line as it stands in the Bill is beyond criticism, because when we talk of a recommended price, by whom it is recommended? Is it a price recommended by the manufacturer, is it a price recommended by the wholesale warehouseman, or is it a price that the retail shopkeeper has himself recommended by sitting down in front of his fire and thinking of a number? While I do not want to support the Amendment of my noble friend, it seems to me that something must be done to clarify this clause, and this provision of this clause, in some way before it will be really satisfactory.

§ LORD DRUMALBYN

My Lords, when I said that I thought the clause in its present state was workable, I am afraid I had overlooked the fact that at each stage I have put down an Amendment to try to do something about "recommended price". The noble Baroness, Lady Burton of Coventry, has done it this time, and the reason why I did not do it on this occasion was because the noble Lord said that the whole clause was going to be remodelled.

We are in a real dilemma here, because if we leave in the phrase "recommended price", then we have protection against people claiming that they are selling at less than the recommended price, if they are not in fact doing so. On the other hand, if we take it out, then people can say anything they like about recommended prices. They can put in any kind of recommended price at all. With great respect to the noble Baroness, I think that what she is after is quite right, but I do not think her Amendment would achieve it. It may be that the right course would be to stop recommended prices altogether, but that is hardly a function for this Bill. We have to decide what to do in relation to them so long as the recommended prices ale agreed. I think I am right in saying that "a recommended price" is a term of art which arises out of the Resale Prices Act 1964—I think it is Section 2 —and at an earlier stage I put down 663 an Amendment more or less to incorporate the definition from there. I think something has to be done, and I hope that the noble Lord will be able to tell us what to do about it.

§ LORD INGLEWOOD

My Lords, may I reinforce the plea of the noble Lord, Lord Leatherland, that somewhere, at least, there should be some definition of the phrase, "recommended price"? I must apologise that I have not been listening to all the debates during the course of this Bill, but I am much interested to see that those who have been studying this Bill throughout all its stages are no less confused than I am as to the meaning of this phrase. Even though it may be defined in another Statute, I think that, since this Bill is surely not intended to be a lawyers' Bill but one which every shopkeeper and every shopper is expected to understand, it would be greatly improved if it could be made clear, as the noble Lord, Lord Leatherland, has pointed out. Is it intended to be a manufacturer's recommendation, or is it intended to be a retailer's recommendation? And if it is neither of those things, what is it intended to be?

§ LORD BROWN

My Lords, even a lawyer in my position would be taxed by some of the questions which have been put, and for an amateur in this matter this is indeed quite a trying experience on this particular clause. First, I think we had better get quite clear one or two things which have not been discussed yet, except perhaps by the noble Lord, Lord Drumalbyn. It is clear that we are confronted by two quite separate and distinct problems in discussing this Amendment. The first is the problem of the man who deliberately overstates the amount by which his price is lower than the recommended price, or who compares his price with a recommended price which does not in fact exist. That is one sort of offence. The second problem is that of the "phoney" recommended price, to which the noble Baroness has drawn attention.

It is with the first problem that the Bill as it is now drafted sets out to deal. Nothing in our reconsiderations has shaken my belief that the present provisions deal with the first problem, and 664 it is right that we should so deal with it. We have been told that "phoney" recommended prices have been quoted to a disturbing degree, and I agree with the noble Baroness and with other noble Lords who have spoken that this is a most distressing social problem. At the same time, we must recognise that many recommended prices are still perfectly genuine. The noble Baroness referred to them as being in the minority. I do not know—we have not done a census of all the recommended prices—but I think it might be rash to jump to the assumption that the genuine recommended prices are in a minority.

§ BARONESS BURTON OF COVENTRY

My Lords, I am sorry, but I must interrupt the noble Lord because he has got it completely wrong. I was very careful to emphasise that it is the minority which are dishonest.

§ LORD BROWN

I am sorry; I misunderstood the noble Baroness. If that is admitted, then, it would be dangerous to eliminate recommended prices if it is agreed that the majority are quite genuine. Even if the recommended price itself is a "phoney" one, an overstatement of the amount by which it is being undersold will in the great majority of cases be an offence which enforcing authorities can prove without undue difficulty. So that even in the case of the "phoney" ones there may be an opportunity of enforcing a better code of conduct than at present exists.

The fact that there is a second and, I suggest, quite separate problem is no reason why we should not deal with the first one, as the Bill already proposes. This is one of the primary reasons why we do not want to accept this Amendment: that it would allow a practice to continue which would become an offence if the Amendment is rejected; and to that extent we are making some inroad into what all the noble Lords who have spoken admit is a social ill. The argument that some noble Lords have put forward would almost add up to the idea that half-a-loaf is not better than no bread at all. We are not going to improve the position by making the use of recommended prices in a dishonest manner free from attack by the law at all. That is not going to help anybody.

665 Now may I move on to the second point? My noble friend Lord Leatherland and the noble Lord, Lord Inglewood, both want what I should like to have—a definition of a recommended price. We in the Board of Trade have not given up trying to tackle this matter. I am not going to commit myself again to rethinking on this and then be asked to delay the Bill until we have done our rethinking. I do not think we are going to reach a solution on this point. All sorts of ideas have been put forward and discussed, and we do not see our way through it; but we have not yet stopped thinking. If a definition of a recommended price can be produced which will enable us to separate the "phoney ones from the real ones, then we shall have gone a long way forward to protect the public from the sort of abuse to which the noble Baroness has drawn our attention. But it is one thing to wish for this sort of protection for the public; it is another thing to produce a law which is enforceable and which can be applied with reasonable consistency in the courts.

The noble Baroness has also commented to the effect that the Board of Trade seem to be highly reluctant to produce clauses that would stand any risk of not being able to avoid confusion in the courts. We are prepared to leave a great deal of hard work to the courts by way of interpretation, but what we are not prepared to do is to produce clauses in this Bill which are clearly unenforceable at law, because I think noble Lords will agree that the worst thing we in this House can possibly do is to add to the volume of unenforceable law that already exists. This does nothing but bring the law into contempt; and it also inhibits voluntary societies, who have done noble work on this whole question of protecting the consumer, from carrying on with their work as they have done in the past. So we should make the situation worse, not better. I hope that, in view of what I have said on this, noble Lords will agree that this is not a suitable Amendment, and I hope the noble Baroness will withdraw it.

§ BARONESS BURTON OF COVENTRY

In view of what the noble Lord has said, and hoping that he will be able to deal with the second part of the problem, 666 I beg leave to withdraw the Amendment.

§ LORD AIREDALE

My Lords, I reminded the Committee earlier that Sir Ernest Gowers had defined the word "either" as meaning, "one or other of two". In subsection (4) of Clause 18 "either" is made to serve the purpose of being one of three, so this word is being used for a purpose which it is not equipped to carry out. Furthermore, I think the inclusion or omission of the word "either" in this subsection makes not an iota of difference to the meaning of the subsection. It is quite superfluous in any event, and I beg to move to leave it out.

§ LORD STRABOLGI

My Lords, I hope that the Government will accept this Amendment. The wording in the Bill at present is an appalling piece of English and I think that what the noble Lord, Lord Airedale says, merits consideration.

§ LORD BROWN

My Lords, I am glad to be able to accept the noble Lord's Amendment and to express my pleasure that his determined efforts to improve the drafting of the Bill have once again been crowned with success.

§ LORD CAWLEY

My Lords, this Amendment shows the serious dilemma that any prosecutor will be in where oral statements are concerned. The law as to passing off (which I mentioned before) is quite clear. If you put in a trap order—that is, if you go round and deliberately ask for something by its trade name in a shop and you are handed something else—you must tell the shopkeeper as soon as possible about the order so that he will have a chance of defending himself. I know of one case about ten years ago which Mr. Justice Harman threw out straight away because the intending plaintiff waited for 28 days, or about a month, before telling the shopkeeper. The judge said that it was unfair to the shopkeeper, because he could not be expected to keep in mind the event on some day a month before; he could not even be expected to identify the assistant who served the intending plaintiff. I think it is possible that 28 days is far too long a time; but I realise also that it is too short a time if it has to be decided whether it really was a trade description or not, because obviously the question of analysing the goods comes in. It illustrates the dilemma in an acute form. I would otherwise support this Amendment.

§ LORD BROWN

My Lords, we are again in a dilemma as the noble Lord, Lord Cawley, has said. I have given careful consideration to the possibility of providing that a person who is to be charged with an oral offence should receive early warning of the fact. If you think about certain types of transactions you at once are biased towards acceptance of this sort of Amendment; but if you think of other sorts, then you are biased against this Amendment. I will attempt to show that this is so in a few moments. The fundamental difficulty is that the Bill covers such a wide range of offences that may be committed by means of an oral statement, and in many 669 cases the commission of the offence may not be discovered until a considerable time has elapsed. There would certainly be many offences which would not or even could not come to light within the time limit of 28 days proposed in the Amendment. I do not think that the analogy which was drawn in the previous discussion with the Road Traffic Act is at all apposite. There is a crucial difference. I will not follow that line again. Nobody raised it on this occasion.

What I am deeply concerned about is this. One thinks of consumer durables; for example, motor cars. The purchaser is assured by the eager seller that this motor car will certainly, when it is run in, average above 30 miles per gallon in petrol consumption. This is a very important selling point. It may take reasonably a couple of months to run it in. The purchaser then has no redress at all on this. And so it goes for all sorts of consumer durables where one takes time to find out that the machines are not consistent with the oral descriptions given by the seller. I admit the difficulty in which one puts the seller.

§ LORD DRUMALBYN

My Lords, I think the noble Lord meant that the purchaser had no redress under this Bill. He might have redress under the Misrepresentation Act or in some other way.

§ LORD BROWN

My Lords, that is true. I was talking about this Bill and the feasibility of the authorities prosecuting under this Bill. I am aware of the other Acts under which a complainant can prosecute. But the noble Lord will agree with me that it is not always an easy matter under those Acts for the person who feels he has been deceived to proceed with his own prosecution in this way. One is faced with these two different types of transaction, in one of which it would be utterly reasonable to restrict the time within which prosecution should be brought; and the other case where it would be utterly unreasonable to restrict the time for it would virtually make these offences outside the law.

On these grounds I ask noble Lords not to accept this Amendment, because I think it would weaken the Bill in dealing with the more serious type of offence which very often is concerned with a much more expensive type of purchase and is, possibly, more open 670 to the sort of deception which the clause will catch than the smaller type of transaction which is often of lesser value and about which these sort of oral mis-descriptions do not quite so often apply.

§ LORD LEATHERLAND

My Lords, may I ask my noble friend whether this clause refers to oral descriptions or not? The three paragraphs seem to exclude oral descriptions.

§ LORD BROWN

, My Lords, as I understand it, the entire Amendment is concerned with the limitation of the time during which prosecutions can be brought for oral misdescriptions.

§ LORD DRUMALBYN

My Lords, I am obliged to the noble Lord for the way in which he has dealt with this matter. As he said, it is a difficult question. I think it illustrates how very difficult the administration of the law in regard to oral misdescriptions is going to be. From what he said, it looks as if it is more likely to bite in the cases of oral misdescriptions where the value of the goods is higher and the number of transactions lower than in the other case, and this is probably as it ought to be. I beg leave to withdraw the Amendment.

§ LORD DRUMALBYN

My Lords, Amendment No. 9, in the name of my noble friend Lord Colville of Culross is a paving Amendment for his Amendment No. 10. Here we are dealing the case where the allegation is that the commission of the offence was due to the act or default of another person. Amendment No. 10 goes on to say: … the person charged shall not, without leave of the court, be entitled to rely on that defence unless, within a period ending seven clear days before the return day of the summons, or, in Scotland, the date fixed for the diet, he has served on the prosecutor a notice in writing specifying the name and address of that other person or any other information in his possession which might be of material assistance in identifying that other person. This is my noble friend's second effort on this matter. I do not think I need go into the merits of it, except to point o that the noble Viscount has qualified the 671 position where, unless the name and address was given to the prosecutor where this offence was evoked within seven days before the return of the summons, it would not be possible to rely on the defence. Here my noble friend has introduced, in the first place, the idea of leave of the court, and in the second place he has also introduced the qualification at the end that one reason for not being able to give a name and address is that it is not known. He has introduced the qualification: or any other information in his possession which might be of material assistance in identifying that other person. In other words, as I see it, if someone wanted to make use of the third party defence in this way, he would have to give notice, and would have to give such information as was at his disposal. Previously my noble friend was criticised for not having put in an application clause, so to speak, for Scotland. He has now done it neatly in a few words, so that point is also covered. I hope that at this second attempt the noble Lord, Lord Brown, will feel able to accept the Amendment. I beg to move Amendment No. 9.

§ LORD BROWN

My Lords, I am sorry that the noble Viscount, Lord Colville of Culross, is not here to hear my congratulations on the co-operative spirit he has shown in dealing with this difficult problem, and the skill with which he has set out to meet the various criticisms which I made of the Amendment put down to this clause when it was last discussed. I will not weary your Lordships by reciting all the technical difficulties which we saw in the previous Amendment. It is enough to say that, with one exception which I shall mention in a moment, it seems to us that the noble Viscount has met them all. He is quite right to drop the third party procedure, as such. What he would now provide is simply an obligation to give notice to the prosecution of the name and address of the alleged real offender: or any other information in his possession which might be of material assistance 672 to the prosecution in identifying the alleged real offender.

When we discussed this matter on a previous occasion I expressed my fear that this obligation to give notice might operate to the prejudice of an ignorant or careless defendant. The noble Viscount has met this criticism by vesting the final discretion in the court which will thus be able to ensure that no one will be prejudiced through his own ignorance or carelessness. The noble Viscount has, to quote his own words, produced something which is not only right but a real improvement.

I am advised, however, that the time limit proposed in this Amendment, although a vast improvement on the limit proposed in the last Amendment, is still not quite right. I do not wish to sound mealy-mouthed about this, but there are one or two little technical foibles about the drafting of the words within a period ending seven clear days before the return day of the summons, or, in Scotland, the day fixed for the diet which my advisers think ought to be examined, particularly with the Scottish authorities. I should have liked to accept the Amendment as it stands, but I think that would be a little unwise on this minor point of detail. So if the noble Lord will agree to withdraw the Amendment, I will give an assurance that, subject to adjustments—or, indeed, without adjustments, but subject to examination on detailed points—an Amendment will be put down in another place.

§ LORD DRUMALBYN

My Lords, I am grateful to the noble Lord, Lord Brown. I should have thought it would be possible for him to accept the Amendment now and make any possible minor adjustments in another place. I hope he will be able to do that.

§ LORD BROWN

May I rise again, my Lords, to answer that one point? I had hoped to be able to do that myself. I explored this problem with those responsible for the drafting this morning. It was my wish to do that. I am advised that it would be easier from their point of view if I were to accept the principle in this way, which is more customary, rather than to accept an Amendment and the Government later to put down their 673 Amendment to it. To preserve the position, the Government make the Amendment and then put it down as a Government Amendment. I am sorry that I am not sufficiently familiar with the procedure in this House to know whether this is usual or not, but I was advised that it is more often the manner adopted and I acceded to that request. I hope that the noble Lord will accept my explanation.

§ LORD AIREDALE

My Lords, does it not give the proper credit due to this House as a revising Chamber that Amendments which are inspired and originate in this House should be seen by the great big world outside to be Lords Amendments?

§ LORD DRUMALBYN

My Lords, I hope that the noble Lord will be able to have the necessary consultation between now and Third Reading, if the Third Reading is on the day we now expect it to be. It does not seem to me that to straighten this out would involve a great deal of consultation or a great deal of difficulty.

§ LORD BROWN

My Lords, if noble Lords will excuse me rising for a third time—I know that it is quite wrong—I am emotionally with the point made by the noble Lord, Lord Airedale, and by the noble Lard, Lord Drumalbyn. I think that I am going to change my mind and accept the Amendment, and leave it to the Government to move their Amendment at a later stage.

§ LORD DRUMALBYN

My Lords, I am very grateful to the noble Lord, and I am sure that your Lordships' House is grateful to him.

§ LORD DRUMALBYN

My Lords, I beg to move Amendment No. 10.