This is one of the sections that has given rise to legitimate concern on the part of manufacturers, advertisers, trade associations and traders generally. I would ask the Parliamentary Secretary to consider the consequences of what is proposed here, even taking into account the amendments he has made. I do not think the amendments are that significant. They do not change to any great extent the potentially harmful consequences of this section. Subsection (3) gives power to stop advertising that could be allegedly potentially misleading. The first three words are "Any person may" and the position will remain the same even under amendment No. 15 in the name of the Minister. It will still be: "Any person may" at the discretion of the High Court be granted an order prohibiting the publication, or the further publication, of an advertisement the publication of which is or would be a contravention of subsection (1) of this section. That is how subsection (3) (a) will read if amendment No. 15 is accepted.
I draw the attention of the Parliamentary Secretary to the potentially serious consequences of putting a provision in our statute law to the effect that any person may apply to the High Court for such an order. At the moment the High Court will not hear an application from someone who does not have an interest of some kind in the matter about which he is seeking to litigate. I cannot go down to the High Court and apply for an order against someone in respect of something that will not affect me. That has been the rule of the law for many centuries because the courts do not want to encourage people who are vexatious or interfering and so the courts will not allow one to take an action in respect of a matter that does not affect one or potentially damage one.
There was a very interesting example in Britain of this recently in the very famous case related to the Post Office strike. An individual sought to obtain an order from the High Court in London prohibiting the strike on the grounds that it was a breach of the law—I think common consent agreed that it was—because it is necessary in Britain, as it is necessary here, where an individual is trying to take an action that does not relate to him personally in any specific way to get the consent of the Attorney General in Britain. Mr. Silkin refused his consent for reasons with which one might well disagree and in a very historic judgment three judges of the Court of Appeal upheld the right of the individual. There is now tremendous controversy as to whether an individual should have that right without the fiat or consent of the Attorney General. The decision has been appealed to the House of Lords and there is a 50/50 chance that the House of Lords will overrule the Court of Appeal thereby restoring the position to what it was originally.
The reason why there is a good deal of interest on one side is that this is opening the way for all kinds of cranky individuals to take vexatious actions in their own names in regard to matters that really do not affect them at all. Here the exact opposite concept is being introduced into our law. I see no objection to subsection (3) (a) in its original form or in its amended form provided it is not the right of every crank to come along to the High Court and start looking for these orders. To get over that difficulty my amendment No. 16 has been tabled. Under that a person can take action only if he gets the consent in writing of the Director of Consumer Affairs. Naturally, being a responsible person, he will give his consent only where he knows the individual concerned has some valid ground for going to the High Court. The order should not be available to every member of the public by and large. This would prevent frivolous and vexatious applications.
There is, too, great danger of damage being deliberately done by competitors or nominees of competitors, men of straw being put up on the quiet to interfere with an advertising campaign in regard to some new product which, if the campaign were successful, would seriously damage some existing manufacturer. The Parliamentary Secretary must realise it is not in the public interest to give every individual in the country the right to go to the High Court seeking orders of this kind. Even if the order were not granted the very fact that the application had been made, with allegations in court about the advertising possibly forcing the defendant to undertake withholding the advertising until the court could look into it further could, even if the applicant ultimately loses the case, cause immeasurable damage to the advertiser who might be perfectly legitimate. There is provision in subsection (b) that the court may require the person to give certain security but, unfortunately, the sort of people who make applications like this are very often those who could not give any security. If an individual believes he will be damaged and can show that he will be damaged by the advertising then, by all means, let him apply. That is his right and has been for centuries.
Unfortunately, what is proposed by the Parliamentary Secretary goes far beyond the common law concept of allowing someone who is injured or can be injured the right to apply for an injunction to the High Court. The provision suggested by the Parliamentary Secretary, however, could be used by unscrupulous manufacturers and suppliers to cause difficulty and loss to a competitor. The words used are "Any person may" and that person could be a man of straw with no interest whatever. The way I have suggested out of the difficulty is to leave the right but make it a restricted right. Allow it to be exercised only if the Director of Consumer Affairs agrees it should be exercised. He will be in touch with the situation. He will know whether or not there are reasonable grounds for going to the High Court to get the advertising stopped. Tremendous damage could be done and this subsection will be used by all kinds of unscrupulous people for all the wrong reasons if it is let stand as the Minister originally had it or if it is amended. The easiest way to get over it is to accept the substance of my amendment No. 16, to allow those types of applications to be made to stop advertising only with the consent in writing of the Director of Consumer Affairs.
I am told by the Chair that my amendment No. 16 will be out of order if I agree to amendment No. 15. I suggest that is only very technically so because amendment No. 16 proposes to insert certain words after "Any person may". Those words are retained in amendment No. 15 so that amendment No. 16 could come in even if amendment No. 15 is accepted. I ask the Parliamentary Secretary to agree to that in order to prevent abuse of the provisions of subsection (3) which in my view are too wide and which will give rise to harmful, vexatious and frivolous litigation which can have very serious consequences for manufacturers and advertisers.
