Clause 6. — (Registration of Goods for Exemption.

Orders of the Day — Resale Prices Bill – in the House of Commons at 12:00 am on 13th May 1964.

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Photo of Mr William Wells Mr William Wells , Walsall North 12:00 am, 13th May 1964

I beg to move Amendment No. 31, in page 6, line 20, to leave out "of any description".

With your permission, Mr. Speaker, it would perhaps be convenient if I explained certain matters arising out of this Amendment. We understood that it was to be taken with Amendments Nos. 32 and 36.

Photo of Mr William Wells Mr William Wells , Walsall North

If you will bear with me for a moment, Mr. Speaker, those two Amendments are linked with an Amendment which has not been selected, Amendment No. 16, in Clause 3, page 3, line 31, to leave out from "same" to the end of line 32 and to insert "class". Standing without Amendment No. 16, I do not think that there would be much object in moving them.

To save a little time, I also refer to Amendment No. 40, in page 7, line 7, at the end to insert: (7) Any person with an interest in the classification of goods for the purposes of this Act may apply by way of summons to a judge who is a member of the Restrictive Practices Court and the judge to whom such application is made shall make such determination in relation to the classification of the goods referred to him as he shall deem to be just.(8) Rules of Court shall be made to give effect to the provisions of this section. That Amendment is also linked with Amendment No. 16. Apart from Amendment No. 16 we think that the objects it would serve are equally served by an Amendment which the Government are to move. In these circumstances, I have simply moved Amendment No. 31.

We have had some discussion on the previous Amendments about the use of the words "conditions of sale". I do not think that the Secretary of State was entirely fair to my hon. and learned Friend the Member for Northampton (Mr. Paget) in the way in which he dealt with my hon. and learned Friend's contribution to that discussion. In the Bill and in the Acts dealing with restrictive practices we are in danger of introducing two different kinds of legal language. The word "description" has a highly technical meaning in the Sale of Goods Act.

It also has a meaning—what the meaning is is a matter of some dispute—under the Restrictive Trade Practices Act and in this present Bill. I shall not weary the House with a long legal argument, because it would be superfluous to do so, but it seems right shortly to indicate what the difficulties are in which we are involving ourselves by introducing this double language.

The first question we have to consider is whether the word "description" in the Bill bears the technical meaning attached to it in Section 13 of the Sale of Goods Act or not. Mr. Justice Wilberforce who, with other learned authors, some years ago produced a book on restrictive practices and monopolies, came down, on the whole, in favour of the view that the word "description" must be translated in the Restrictive Trade Practices Act in a general business sense and not in the technical sense of the Sale of Goods Act.

The matter came before the courts although the word "description" is less important in the Restrictive Trade Practices Act than in the Bill in the British Wastepaper Association's agreement case, in which Mr. Justice Megaw cited the use of the word "description" in the Shorter Oxford Dictionary. This gives two meanings. One is: The action of setting forth in words by mentioning characteristics. That is germane, I suppose, to the meaning of description in the Sale of Goods Act, although not quite the same as the other meaning: The combination of qualities or features that marks out or describes a particular class, hence a sort, kind or variety. 4.30 p.m.

The conclusion at which Mr. Justice Megaw arrived is that it seems clear that "the descriptions of goods" means nothing more than the kinds of goods, but, as Mr. Justice Megaw very wisely added, Another court might take a different view of the question involved. The Secretary of State yesterday said—I do not think that he quite intended what he said—that there is no appeal from the Restrictive Practices Court. That is true so far as questions of fact are concerned, but it is not true so far as questions of law are concerned, so we here find ourselves setting ourselves by the use of the word "description" in the Bill a wholly unnecessary problem.

If I may refer to it—it would be quite out of order for me to pursue it—what we sought to do by the combination of Amendment No. 16 with these three Amendments and Amendment No. 48 was to substitute throughout the Bill both for the purposes of this Clause and for the purposes of Clause 3 the use of the word "class" for description and to provide machinery by which any party concerned in matters under the Bill could obtain a ruling from the Court on the clarification of goods either under Clause 3 or Clause 6.

All I am saying, for the purposes of this Amendment, is that, although we cannot deal with the wider questions we had hoped to be able to deal with, we think that the words "of any description" should be avoided where it is now possible to avoid them, and, in particular, in the present context, we think that these words are merely surplusage and do not add anything to the Bill; they add only a possible cause of confusion. I would hope that, although this is a very minor Amendment to the Bill, the Secretary of State will see that these words in this context are quite otiose and would agree to their removal.

Photo of Mr Edward Du Cann Mr Edward Du Cann , Taunton

This is, as the hon. and learned Member for Walsall, North (Mr. W. Wells) said, something of a technical point. If I may say so, for reasons that I shall endeavour to advance, he has, not for the first time, during our discussions, done the House a service in bringing to light a point which has a basis of some significance. I find myself both in agreement and disagreement with the hon. and learned Gentleman, for reasons which I shall endeavour to retail.

I think that all of us who are laymen are grateful to the hon. and learned Gentleman for not taking us into the labyrinth of legal terminology. On the other hand, I understand the point at issue, and I wish to treat his argument seriously. First, I shall deal with the point where, I think, we disagree in relation to Amendment No. 31, but he has raised a slightly wider point than that. This is where I find myself in some agreement with him.

With regard to Amendment No. 31 I should like to say a word about our basic thinking in relation to the drafting of this Clause, because that is the point which the hon. and learned Gentleman is discussing with the House. As drafted, this subsection provides that where a notice claiming registration under Clause 6 is given in respect of goods of any description", the Registrar shall cause particulars of the goods to be entered on the register.

Subsection (3) operates on subsection (2) of Clause 6. That subsection enables the supplier of goods within three months from the commencement of the Clause to give notice to the Registrar "in respect of goods of any description" supplied by him, and where he is claiming registration in respect of those goods. That is the modus operandi. I am glad to observe that I take the hon. and learned Gentleman with me so far. Therefore, subsection (2) is the basis for the Clause and is, in fact, the substantive part of the Clause.

I said that I would talk a little about principles. In our view, the words "of any description" are essential in sub- section (2) because the supplier will clearly have to describe the goods in respect of which he is maintaining resale prices. I think that the House would agree, in general, that the notice to the Registrar must be, in the particular, clear and definitive. It is no good it simply being phrased in general terms, because the Registrar has to know precisely in respect of which goods resale price maintenance is being practised.

I could think of many analogies. No doubt they will occur as readily to right hon. and hon. Gentlemen opposite as they do to me. For example, it is no good talking about vehicles in general; one must be more particular than that. There are many other analogies. That is the principle of the matter.

The effect of the Amendment which the hon. and learned Gentleman proposes would be simply to delete the words "of any description" where they appear in subsection (3), but he is not arguing that they should be so deleted where they appear in subsection (2), so the result would be, for reasons which I shall explain shortly, that in our judgment—I am so advised after having looked at this with a good deal of care—the effect of the Amendment would not be as substantial as that which the hon. and learned Gentleman wishes to achieve. The supplier would still be required by subsection (2) to give notice in respect of goods of any description.

The requirements under subsection (3) whereby the Registrar is to cause particulars of the those goods to be entered in the register is a requirement which clearly relates to goods of any description included in the notice, and this is so whether the words "of any description" appear in subsection (3) or not.

The hon. and learned Gentleman is a very much better lawyer than I could ever be, even if I took my Bar examinations, which I do not propose to do, and I am sure that he will have followed me thus far. For purely drafting purposes, it is desirable, in our view, that the words should be retained in both subsections, and since, if I take the House with me in the argument that I am putting forward, nothing would be achieved by deleting them in subsection (3), there is really no point in pressing on with this Amendment. So much for the general approach and for the Amendment itself. That is the extent of my disagreeing with the hon. and learned Gentleman.

On the other hand, however, I realise, as the hon. and learned Gentleman explained so very clearly, that the subsequent Amendment is part of a very much wider approach to the whole of this Clause, which he and his right hon. and hon. Friends were intending to pursue. There is a point of substance and of interest in that wide general point which he was making and which, I realise, also bears to some extent on Amendment No. 31. For reasons which I have given, Amendment No. 31 is not acceptable to us.

However, in courtesy to the hon. and learned Gentleman I should go on to detail the area of agreement which there appears to be between us and to talk for a moment or two about the principle of our approach to the Clause. In drafting the Bill we sought to make a distinction between descriptions of goods, on the one hand, which are what are notified to the Registrar, and classes of goods, on the other, which are what are referred to and dealt with by the Court.

The effect of the Amendment tabled by the right hon. Member for Battersea, North (Mr. Jay) and his right hon. and hon. Friends was, broadly speaking, to encourage us to examine, which we wished to do in any case in accordance with undertakings given by my right hon. Friend to the House, the whole approach of Clause 6, and in regard to the distinction which I have been outlining to the House I feel, on reflection, that we have not been entirely successful in our attempt. We want to retain the concept. We believe that the concept is correct. We should, however, like to look at the drafting again and in so far as it is possibly defective to put it right in another place.

We attach great importance to the concept, but we are not satisfied that the drafting is right. I said earlier that we have never thought that the drafting of the Bill was infallible—the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) is grinning; he has played a great part in helping us to improve it—but I yield to none in my admiration for the skill and diligence of the Parliamentary draftsmen. The concept is entirely right, but we do not think that we have necessarily got the wording of the Clause right.

To sum up, for seasons which I have given, Amendment No. 31 is not acceptable to the Government. But we are prepared to look again at the wording, in general, of this Clause, with reference to what the hon. and learned Gentleman said in moving the Amendment. I hope that in those circumstances he will think it right not to press the Amendment.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

I was glad to hear the Minister say something about the skill of Parliamentary draftsmen. The problem of a Parliamentary draftsman is difficult when the Government know what they want and think about their intentions. When the Government do not know from day to day what they want, and change their minds from stage to stage, the job of the Parliamentary draftsmen becomes almost impossible, and they have my unqualified sympathy in the intolerable job which they have been given here.

I must confess not to be taking any great interest in the provisions. The straight answer is that these provisions about registration and the Restrictive Practices Court will be a dead letter anyway. When he can walk around a Bill as easily as he can walk around the Bill, nobody will put himself to all the trouble of climbing over the obstacles which are put into the Bill by getting himself registered and granted permission. When he can maintain his agency system without any difficulty, why should he put himself to all this trouble?

Photo of Mr Norman Cole Mr Norman Cole , Bedfordshire South

The hon. and learned Member for Northampton (Mr. Paget) is on his hobby horse of looking to the future and dealing with agencies. Unlike my hon. Friend the Minister of State, I am a layman and not a lawyer, and I think that a layman has some contribution to make to the Bill because many cases must be dealt with by laymen; they will not always be dealt with by lawyers.

If it is necessary—I agree that it may be—in subsections (2) and (3) to refer to "description", I find it difficult to understand why, when the list is published, we use the word "classes". If the list published is to mean anything at all to people in the trade or to the public, it is equally important to use the word "description", as well as in registering or seeking to register for exemptions under subsection (3). That is probably where my hon. Friend and his advisers wish to think again about the matter.

With great respect to what my hon. Friend said, I do not think it even matters whether we use the same word all the way through. Undoubtedly, the Registrar will have a form on which a full description of the goods for registration will have to be indicated, whether we use "class", "description" or anything else. But it would help members of the public, about whose interests I am always thinking, as we all are, to have the same nomenclature in all cases.

I welcome my hon. Friend's suggestion that he will try to make the wording consistent. I do not think that "class" is synonymous with "description"—certainly not in a layman's mind. If we had the same wording in respect of the same lot of goods—I use that word to avoid confusion—it would be helpful. We should have the same significant word in both cases.

Photo of Mr William Wells Mr William Wells , Walsall North

The Minister has no-balled me on a technicality. It was a pure piece of carelessness on my part not to try to remove "description" from subsection (2), too. I was interested in the broad approach to the question of drafting and to bringing together the wording of Clauses 3 and 6.

Photo of Mr Edward Du Cann Mr Edward Du Cann , Taunton

I am obliged to the hon. and learned Member for what he said. I understand his reference to subsection (2), and perhaps I should have presupposed that explanation. He has been good enough to comment on what I said about the concept of our approach here, and this concerns something which bothers my hon. Friend the Member for Bedfordshire, South (Mr. Cole). We must stand on the concept. That is right, for many reasons which it would be possible for me to deploy at length, but I do not wish to weary the House. I am grateful to the hon. and learned Member.

Photo of Mr William Wells Mr William Wells , Walsall North

I was glad to hear what the Minister said. I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

4.45 p.m.

Photo of Mr Edward Du Cann Mr Edward Du Cann , Taunton

I beg to move Amendment No. 33, in page 6, line 29, to leave out "in respect".

I think that it would be for the convenience of the House to consider, at the same time. Amendments Nos. 34 and 35.

Photo of Mr Edward Du Cann Mr Edward Du Cann , Taunton

Roughly speaking, these Amendments all deal with the same point; they are all designed to leave out "in respect". They are purely drafting. The words "in respect" are entirely unnecessary, and I hope that the House thinks it right to take them out. Any unnecessary verbiage should be removed from the Bill.

Photo of Mr Douglas Jay Mr Douglas Jay , Battersea North

I do not wish to inflict any unnecessary verbiage on the House. We entirely support the Amendment, but I wonder whether the Minister of State has gone far enough. For many years I worked in Fleet Street as a sub-editor. I believe that the Secretary of State has done the same. I calculate that in my eight years' sub-editing I crossed out the words "in respect of" ten thousand times and the words "in connection with" twenty thousand times, thereby saving a great deal of time, ink and space for the newspapers concerned. I therefore wholly support the Government's proposal.

We have been debating this Bill during the months in which we have been celebrating the 400th anniversary of the birth of Christopher Marlowe and of Shakespeare. If hon. Members have studied the works of these poets they will not find the words "in respect of" anywhere in all their recorded works. Marlowe wrote: Was this the face that launch'd a thousand ships,And burnt the topless towers of Ilium? He did not write, "Was this the face in respect of which a thousand ships were launched and the topless towers of Ilium were destroyed by fire." We should learn the lesson.

The question I ask is: have the Government gone far enough? If the hon. Member looks at lines 9 and 10 on page 6, which are not concerned with the Amendment, he will read: (Subject to such directions as may be given by the Board of Trade with respect to the order in which such references are to be made) in respect of all goods of which particulars are for the time being entered in the register. Is there not an opportunity for a little surgical abbreviation there, too? I cannot see that we can just leave out the words "in respect of", but we might use "about" or "concerning" for "in respect of", which will at least give us some saving. I say this not to delay the House, but because the hon. Member told us that the Parliamentary draftsmen, despite their great skill, are not infallible.

Further down the same page, line 40, which is not the subject of the Amendment, says this: The Registrar shall also from time to time publish lists of the classes of goods in respect of"—

Photo of Sir William Anstruther-Gray Sir William Anstruther-Gray , Berwickshire and East Lothian

Order. I am sorry to interrupt the right hon. Gentleman, but I do not think that when we are discussing only up to line 38 we are entitled to leap ahead to lines 40 and 41.

Photo of Mr Douglas Jay Mr Douglas Jay , Battersea North

That may very well be, Mr. Deputy-Speaker, but I am pointing out that it is implied in the Amendment that where these words occur there may be an opportunity for abbreviation.

I therefore advise the hon. Gentleman to look at line 41 on this page, and also at lines 13 and 14 on the next page. He may then continue this good work, for which we thank him, even more thoroughly than he has yet realised.

Amendment agreed to.

Further Amendments made: In page 6, line 34, leave out "in respect".

In line 38, leave out "in respect".—[Mr. du Cann.]

Photo of Mr Edward Du Cann Mr Edward Du Cann , Taunton

I beg to move Amendment No. 37, in page 7, line 1, to leave out "purposes" and to insert "purpose".

It might be for the convenience of the House if, with this Amendment, we discuss Amendment No. 38.

Photo of Mr Edward Du Cann Mr Edward Du Cann , Taunton

I have such respect for the right hon. Member for Battersea, North (Mr. Jay) that I will certainly consider any proposals that he makes in respect of—[Laughter.]—improving the drafting and the language of the Bill. I said last night that I preferred to agree with the right hon. Gentleman. I always find agreeing with him more agreeable than disagreeing with him. I hope that in that spirit the House can now come to these two Amendments.

They are tabled largely to improve the language of the Bill and, again to take up the point made by the hon. Member for Sheffield, Brightside (Mr. Winter-bottom), to clarify it. Amendment No. 37 is purely drafting. So is Amendment No. 38 in so far as it adds the words "for the purpose". Their object is to take some of the strain off the single use of the word "purposes" in the subsection as drafted by using the word "purpose" in two places in the subsection. I hope that the House will think, to that extent at any rate—wholly as to Amendment No. 37 and partly as to Amendment No. 38—that the Amendments are felicitous.

In so far as Amendment No. 38 adds the words subject to rules made by virtue of section 8(2) of this Act"— it anticipates Government Amendment No. 48, in Clause 8, page 8, line 23, to which I hope you will think it appropriate, Mr. Deputy-Speaker, that I should make short reference. The hon. and learned Member for Walsall, North (Mr. W. Wells) was good enough to say that this Amendment, in general, found favour with his right hon. and hon. Friends and himself. It is necessary at this stage of the Bill to have a signpost in the text—that is, a signpost in Clause 6(6)—indicating that the power to group goods conferred upon the Registrar by this subsection is subject to the overriding powers of the Court under the rules of procedure.

I do not think that I need go into the matter of Amendment No. 48 in greater detail, but it would be quite wrong for me to explain Amendments Nos. 37 and 38—the purpose of Amendment No. 37 being drafting, and part of the purpose of Amendment No. 38 being drafting—without going into the detail of the other matter in relation to Amendment No. 48.

Amendment agreed to.

Further Amendment made: In page 7, line 2, leave out "or" and insert: and, subject to rules made by virtue of section 8(2) of this Act, for the purpose".—[Mr. du Cann.]

Photo of Mr Edward Du Cann Mr Edward Du Cann , Taunton

I beg to move Amendment No. 39, in page 7, line 5, to leave out from "appropriate" to the end of line 7.

We have latterly been discussing Amendments which were largely drafting, with the single exception of the point relating to the first part of Amendment No. 38, which I described to the House. This Amendment is a little more than drafting. It tidies up, and indeed cures, an inconsistency in the Bill resulting, not from any failure to get the Bill right in the first instance, but rather from the Amendments introducing the registration procedure. Perhaps I had better go into the matter in slightly more detail than that bald and bold statement.

Amendment No. 115, which we discussed in Committee and which the Committee saw fit to accept, provided that the Registrar of Restrictive Trading Agreements should refer exemption cases to the Restrictive Practices Court under Clause 5—I now quote from Clause 6(1)— subject to such directions as may be given by the Board of Trade with respect to the order in which such references are to be made". The House will remember the point, and I do not think it is necessary for me to retail it now. It was agreed that this was the appropriate procedure to follow.

The words deleted by the present Amendment are not necessarily consistent with the Board of Trade's power of directing the order of proceeding. As the Committee came to that decision, therefore, it is right to take account of it in the further drafting of the Bill, and that is precisely what the Amendment is designed to achieve. To leave the words in as they stand would be a total nonsense. That is why we propose to take them cut. I hope that the House will approve this proposal.

Amendment agreed to.