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Misrepresentation

Volume 931: debated on Friday 6 May 1977

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I beg to move Amendment No. 12, in page 5, line 28, leave out from 'term' to the end of line 29 and insert

'satisfies that requirement to show that it does'
.

With this, we may discuss Amendment No. 35, in Clause 22, page 11, line 24, leave out 'not'.

We now come to the rather more complicated area of burden of proof for the reasonableness test, and I move this amendment to bring the section in the Misrepresentation Act 1967 into line with that set out in Clause 10(3).

Hon. Members will know that this difficult question of the burden of proof for the reasonableness test was discussed at great length in Committee and that, as originally contained in the Bill, Clause 10 was reversed so that now the onus is on the person relying on an exemption clause to show that it is reasonable. Later today the House will be asked to consider an amendment to Clause 22(3) so that the burden of proof is similarly reversed for Scotland.

Again, if there are special questions on the operation of this proposal in Scotland, I hope that hon. Members will pose them to my right hon. and learned Friend the Lord Advocate.

I hope that these amendments will be accepted, because this is a tidying-up proposal to ensure that the Bill is consistent throughout at this stage. I understand from my hon. Friend the Minister of State, Department of Prices and Consumer Protection that there are still certain reservations in various people's minds, and I understand that he will deal with those in more detail.

As we are taking Amendment No. 35 with Amendment No. 12, I ought to point out that the amendment, while necessary for the sake of consistency between Parts I and II of the Bill—the part for England and Wales and Scotland respectively—does not necessarily represent the final form of this clause.

The burden of proof as between contending parties has to be considered not only in terms of this Bill but in relation to other legislation. Regard has to be paid to such matters as the effect which a duty of the kind imposed by the amendment may have on the normal processes of trade and business, the possible increase in litigation which may be entailed, and the balance which needs to be maintained between the interests of consumers and a reasonable degree of freedom to enter into contracts.

These are complex issues which cannot be resolved finally without a great deal of consideration. That is why, as my hon. Friend said, we are carrying out further consultations before reaching any final views. However, this is a matter which can be left to the later stages of the Bill. Meantime, it is desirable that there should not be any inconsistency on this point between Parts I and II.

With that strong reservation, I ask hon. Members to support the amendment at this stage.

Amendment agreed to

Amendment made: No. 13 in page 5, line 29, at end insert—

'(2) The same section is substituted for section 3 of the Misrepresentation Act (Northern Ireland) 1967'.—[Mr. Ward.]