§ 4.15 p.m.
§ Mr. Douglas Jay (Battersea, North)
I beg to move Amendment No. 50, in page 4, line 11, to leave out subsection (4).
§ The Chairman
It will be convenient to discuss with this Amendment Amendment No. 51, in page 4, line 11, to leave out "If", and Amendment No. 52, in page 4, line 12, to leave out from "Act" to the end of line 28 and to insert:the burden of proving that supplies of goods which have been withheld by the supplier from a dealer were withheld because the dealer had acted as described in paragraph (a) of subsection (1) of that section or was likely to act as described in paragraph (b) of that subsection in relation to the goods in question shall be upon the party bringing the proceedings".
§ Mr. Jay
Clause 4, together with Clause 2, compels certain traders in certain circumstances to trade with other people when they do not wish to do so. Whether this is right or not, we say that this is a suggested form of legislation which needs to be carefully considered.
Our general attitude throughout the Bill has been this. As the right hon. Gentleman the Secretary of State knows, we have supported Clause 1 which, in effect, repeals Section 25 of the Restrictive Trade Practices Act, 1956. That Act gave suppliers and manufacturers the power to enforce their prices on retailers against their will. We opposed that provision in 1956 and we now support its repeal.
1113 I may say, in passing, that the Secretary of State, who was getting very self-righteous last week about the attitude of my right hon. Friend the Leader of the Opposition to that matter, is not in a very strong position to talk about consistency, because in 1956, when we were opposing this proposal, he was the Chief Whip in the Government who were shepherding everybody into the Lobby in favour of it. Now he is not merely asking us to repeal it, which we are quite willing to do, but is enthusiastically and sanctimoniously in favour of it and is making the accusation of inconsistency against anybody who is not in favour of it. I do not think that the right hon. Gentleman is in the strongest position to take up this high moral attitude.
I am not accusing the Secretary of State of malicious dishonesty. The trouble about him is that he always reads out whatever brief he has at the moment. He reads it very fluently and is almost word perfect. In 1956, he had one brief, and now he has another. In Brussels, he had one brief, and at Geneva another. He reads them very nicely, but the trouble is that the briefs tend to change from time to time.
I return to our attitude on this matter. Our reason for opposing Section 25 was and for supporting Clause 1 is not purely the familiar economic arguments. We thought that as a matter of equity and civil liberty it was rather a steep proposition for Parliament to enable one trader to enforce on another a contract which that other trader had never entered into. It might be that that was justifiable, but we thought it a steep proposition and we were never satisfied that the case for it had been made out. When it comes to Clause 1, in respect of which we agree with the right hon. Gentleman, and to Clauses 2 and 4, which go together, it does not seem to us that the right hon. Gentleman has made out his case.
In Clause 2, Parliament is asked to say that in certain circumstances, which I will attempt to elucidate, I hope correctly, with the assistance of all the legal advice which we have today, some traders shall be compelled by law to trade with those with whom they do not wish to trade. Whatever the economic arguments, the arguments for this on grounds of general equity and civil liberty are the other way round. I am 1114 not saying that it would never be justifiable for Parliament to say that people must trade unwillingly with others not of their selection. But in that case a strong case must be made out. I do not think, therefore, that the Secretary of State can wholly justify this proposition in the rather sweeping way that he, or one of his colleagues, did at an earlier stage of the Bill by saying that if we did not have this provision we should undermine the whole purpose of the Bill because people would surreptitiously enforce resale price maintenance by withdrawing their supplies. That is an argument, but I do not think it is the whole argument with which we must deal.
We are attempting, by the Amendment, to put the burden of proof in a disputed case about the manufacturer's motive not on the manufacturer, but on the plaintiff—the retailer, member of the public, Registrar or the public authority bringing the action. The position under the Bill as drafted would be that the manufacturer would seek to withdraw his supplies. Proceedings would be brought against him for unlawfully doing that and the onus of proof would be on him to prove that his motive in withdrawing supplies was not the fear that the retailer night reduce his prices.
If the Amendment were carried the position would be that, so that the manufacturer should lose his case, it would have to be established that he was withdrawing supplies on the ground that the retailer was likely to sell below the recommended price. In other words, without Clause 4(4), Clause 2 would stand and, it effect, the onus of proof would be the other way round.
As the Bill now stands the onus of proof is, in a sense, doubly on the manufacturer and not on the public authority or whoever might bring the action. Although we have not yet reached that part of the Bill, for a specific exemption to be given to a certain class of goods the onus is put on the manufacturer or group of manufacturers who wish to have that exemption. We will come to that later. Suppose a manufacturer does not obtain that exemption and suppose that in certain circumstances he seeks to withdraw his supplies, as the Bill stands the onus of proof—because of the provision in subsection (4)—is again on 1115 the manufacturer, who must prove that his motives were not of the wrong kind.
When some of my hon. Friends and I remarked on Second Reading that one of the curious features of the Bill was that it went so far as to lay a legal obligation on people to trade in certain circumstances with those with whom they do not wish to trade, the Minister shook his head in apparent disagreement and gave the general impression that that was not the intention of the Bill. Nobody now doubts that that is a feature of the Measure.
If we consider Clause 2 with Clause 4(4) it is perfectly clear that that is the case. For example, Clause 2(1) states:…it shall be unlawful for any supplier to withhold supplies of any goods from a dealer seeking to obtain them for resale in the United Kingdom on the ground that the dealer—(a) has sold in the United Kingdom at a price below the resale price goods obtained…In other words, it is unlawful for him to withdraw his supplies on the grounds mentioned in the Clause.
That means that he must make his goods available. He is, therefore, compelled to trade. We find on reading Clause 4 that the Bill spells out what is meant by the phrase "on the ground that" because it tells us in what circumstances it shall be presumed—and "presumed" is the word used in the Clause—that the supplier is acting with those motives.
That is presumed if three conditions are fulfilled. The first is that there must be a condition of fact that he is seeking to withhold supplies. I assume that one, but then we find that, over and above that, if it is shown that the manufacturer was selling goods to the retailer in question previously or that he is now selling goods of the same kind to other retailers, that, too, is a condition.
I urge the Committee to note this because that was precisely what we pointed out on Second Reading, when the Minister appeared to be trying to deny it. I therefore draw attention to the words in Clause 4(4,a):…down to the time when supplies were so withheld the supplier was doing business with the dealer or was supplying goods of 1116 the same description to other dealers carrying on business in similar circumstances…That makes it clear that not merely does the Clause compel the trader to supply to people with whom he does not want to trade, but also makes it compulsory for him in certain circumstances to supply goods to another trader with whom he has never traded up to that point. There can be no doubt that that is what the Bill means. We pointed this out on Second Reading and the Minister then attempted to deny that that was its meaning. I do not think that he will deny it now.
Therefore, the first condition is that the trader…was doing business with the dealer or was supplying goods of the same description…The second is that the dealer must have either already made a reduction in the price to a point below the recommended price—I am tempted to use the phrase "price cutting", but that may be considered too tendentious—or, alternatively, have made it clear that he intends to reduce the price to that point. If those two conditions are fulfilled, then, according to the Clause, the manufacturer can prove that that was not his motive.
The manufacturer is compelled to supply goods against his will to the dealer in question and we reach the situation, therefore, that the manufacturer must, first, trade against his will—even with someone with whom he has never traded before and with whom he does not wish to trade—and, secondly, the onus of proof is doubly on him because if he is to get his exemption he must first prove the case before the Court and a second onus of proof is on him because of the words at the end of the Clause:…it shall be presumed, unless the contrary is proved, that the supplies were withheld on the groundߪThirdly, the manufacturer must prove his own motive. As a layman, this appears to me a rather odd thing to demand. Fourthly—on top of all this—he must prove the negative because he must, in effect, prove that his motive was not fear that the dealer might be selling goods below the recommended price.
I should have thought that all this represented a rather stiff proposition. It seems to go a good deal too far and 1117 my hon. Friends and I propose what we believe to be a fair and moderate Amendment of this proposition. If hon. Member; opposite intend to pass legislation compelling people to trade against their will they are setting some remarkable precedents.
There has all along been a standing controversy about what is called direction of industry. I have always argued that although one can legislate in the sense of saying, "If you set up a factory in London you will be subject to a penalty", I do not believe that one should legislate by saying "If you do not set up a factory in, say, Glasgow, we will put you in prison", because the answer may be, "I do not know how to set up a factory in Glasgow because I do not have the capital to do so and, anyway, you should not compel me to do business against my will".
That is a point of view which we on this side have always maintained against some people who, perhaps, have not fully understood the issue, but I must say that if the right hon. Gentleman is to legislate like this he will set a remarkable precedent which will extend, I should think, a good deal wider.
In this Amendment we are being very moderate. We are not saying that in no circumstances, as a buttress to the main purpose of the Bill, should we compel people to trade with those with whom they do not want to trade. By the Amendment and the two following ones we are merely saying that if a complaint is brought, then in certain cases, in our view, at least the onus of proof must be the other way round.
That is to say—I hope that that is what this Amendment provides—it is not to be obligatory on the manufacturer to prove that his motive was not fear of price reductions. It would be obligatory on the plaintiff—whoever that was; I suppose it would normally be the retailer, or it might be some member of the public, or it might be the Registrar—to prove that this was the motive of the manufacturer, contrary to the intentions of the Bill, in withholding supplies.
We should simply be left with the provision in Clause 2 thatit shall be unlawful for any supplier to withhold supplies1118 on the grounds stated. As I understand the law, it would then be for the Court to decide whether the supplier was doing it on those grounds, and then, presumably, the onus would be on the people bringing the case to show that that was why the goods were withheld. This Amendment would shift the onus of proof in one case only, not in another we shall discuss later. It merely provides that where a mm is having that obligation laid upon him at least the main onus of proof should be on those advancing the argument and not on the manufacturer against whom it is advanced.
That would seem to us to preserve the main purpose of the Bill, and as far as ordinary equity and normal liberty of trading goes would be much more moderate, more reasonable, more acceptable to the Committee, I should have thought, than the rather extreme proposals which the Secretary of State has laid before us.
§ Mr. Graham Page (Crosby)
I think that the right hon. Gentleman the Member for Battersea, North (Mr. Jay), in moving his Amendment, has exaggerated his interpretation of the Clause. He said, if I understood him correctly, that the Clause is forcing a man to trade against his will. It is not really forcing a man to trade against his will. It is providing that he should not refuse to trade with the intention of maintaining resale prices; he should not have that as his intention in withholding the goods.
§ Mr. Page
The burden of proof is thrown on him by subsection (4) of the Clause, and although I support subsection (4) partially, in certain cases I would consider it should not apply. That is the argument I want to adduce.
As I understand it, the combination of this subsection (4) with Clause 2 is that goods are presumed to be unlawfully withheld if two things apply. In each of these categories there are alternatives, first, if they were actually withheld, or refusal to accept less favourable prices. That is Clause 2 (3,a). Or if the purchaser were treated in a less favourable manner than other purchasers. That is Clause 2 (3,b). These 1119 things have to be proved. Also, if the dealer, a customer of the supplier, had been undercutting, or he threatens to undercut; that is the second class of items which one has to prove.
There is good reason why my right hon. Friend should have the Clause in the Bill and throw the burden generally on the dealer who refuses supplies except where it involves the condition as to cash payment or refusal of credit. I consider that the supplier should always have the right to refuse credit and that the burden should not be thrown on him to prove that he has not refused credit for some wrongful reason. If that can be excluded from the Clause, then I think that the Clause is unobjectionable.
The situation which I fear is that, as the Clause stands, the dice are so loaded against the supplier who gives generous credit terms to his customers that he will be frightened to go on giving those terms, that he may lay himself open to litigation if a newcomer comes along and says, "You are giving credit terms to so many hundreds of your retailers who are buying from you. I want the same sort of terms." If he is to be faced with litigation if he does not give those same terms of credit to the newcomer, I think that his customers will suffer because he will stop giving credit to them.
§ Mr. William Wells (Walsall, North)
We are grateful to the hon. Member for being with us so far, but why does he draw this distinction between credit and everything else? Suppose that the case may be simply that the manufacturer has not enough goods to supply all the dealers who come to him and chooses to prefer one dealer rather than another, if he has not enough goods. What is wrong with that? Why should he have the burden of proof of this put on him?
§ Mr. Page
He will, of course, be able to show, if any complaint is brought against him, that that was the reason for refusing to supply the goods, but if the burden of proof in all cases is turned the other way I think that there is too great opportunity of sabotaging the whole purpose of the Bill.
Let me take an example. Suppose the wholesaler gives credit to his normal 1120 customers and Joe Bloggins comes along and says to him, "I am just going to set up a shop and I shall sell at lower prices than your recommended prices. You have got to give me credit." The wholesaler says. "No" If the Clause stands as it is, then Joe Bloggins can say, "Now prove that my saying that I was going to undercut your recommended prices was not your reason for refusing me credit."
I think that that is unreasonable; but apart from that, the possibility, without subsection (4), of sabotaging the whole Bill is quite substantial, and I think it reasonable to provide against the other things than a refusal to supply credit. The supplier should always have the right to make that refusal, but I do not think that it will harm him if he is obliged to say, if he refuses for another reason, that it was not for the purpose of maintaining resale prices.
§ Mr. R. E. Winterbottom (Sheffield, Brightside)
I am obliged to the hon. Member for Crosby (Mr. Graham Page) for raising the point of cash and credit, but I should like to take the credit argument a little further and point out that under the Clause, and, indeed, under the Bill, till we have some clarification from the Minister about regard to cash and credit—and we have not had that clarification as yet—it will have to be assumed that a person starting a new business will be entitled from the supplier to credit. We have the complication: who is to be the supplier? In some cases the question is whether it is to be the second or third wholesaler, or whether it is to be the manufacturer. The Bill is not very clear about these things when it refers to the supplier.
What about the person who is already a trader, who has defaulted on his accounts with his existing wholesaler or supplier and who has gone from supplier to supplier owing money to each and every one? That point is not clarified. Before we can deal with the Clause in its entirety, we should hear the Minister's view about the contracts which have to be reached in respect of cash and credit trade.
I am not satisfied with the Bill, and I support the Amendment because it eliminates subsection (4). We have to remember that in the world of distribution there are all kinds of people and 1121 all kinds of methods. For instance, there are stationers' shops which do not sell newspapers. They receive, from the wholesaler who sells stationery supplies, certain magazines and periodicals, but they do not receive newspapers. If the Clause is passed, those retailers will be able to claim from the newspaper wholesaler the right to sell newspapers. Moreover, subject to the exemptions, they will be able to sell newspapers at any price they like.
That leads me to the conclusion that it is wrong to place the onus of responsibility on the wholesaler on every possible occasion, as is done in the Bill. We have to take into consideration the fact that the wholesaler has his own finances to look after and has the problem of turnover. In many cases turnover varies between different sections of the distributive trade. One can have a twice-a-year turnover in the fashion trade, fifty-two times a year in butchery, and perhaps once in every three weeks in groceries—if one wants a fair type of turnover in the type of trade which is related to the average receipts in a grocer's shop. The wholesaler has to provide for the whole of his retailers in order to take the burden of turnover from their shoulders as much as he possibly can.
By the Clause we are saying to the wholesaler, "You must carry excessive stocks in case, if you have not the stocks to supply all and sundry at the time of request, you are implicated by the Bill". That is quite unfair. If there are wrongs in the world of resale price maintenance and if there must be abolition, then let us place the responsibility upon the people who are affected. What about the wholesaler who also has retail establishments? Instead of dealing with resale price maintenance we should there be dealing with direct price maintenance. It would be possible for some of the tobacco wholesalers who also have retail establishments to sell packets of cigarettes at less than the price charged by their customers on the wholesale side, and yet to get away with it without let or hindrance because it was direct price maintenance. But the moment it was brought within the scope of resale price maintenance, the difficulty would arise. I suggest that it is utterly wrong to place the onus of responsibility on all occasions on the wholesaler.
1122 I believe that the Minister is putting a rod in pickle for himself because—heaven forbid—he may be the Home Secretary, and if he takes the conception of law as he has it in the Bill and applies it to the criminal law it will no longer be necessary to prove that the murderer committed the crime; the murderer will have to prove that he did not commit it. That would be a negation of justice, and that is why I think that to accept subsection (4) is to place far too much responsibility on the wholesaler. It will create untold difficulties, not only in anomalies in the world of distribution but for the wholesaler.
It would have been far better if the Minister had left subsection (4) out of the Bill and—even in the interests of the abolition of resale price maintenance, had left it to the exact wording of Clause 2
§ Sir Douglas Glover (Ormskirk)
I support my hon. Friend the Member for Crosby (Mr. Graham Page) in opposing the Amendment and in asking my right hon. Friend to give further consideration to the question of credit. I will not repeat all the arguments. We had a tough time on this matter on Clause 2.
§ Sir D. Glover
The hon. Member was here and should remember it. He should not have such a short memory. He is usually "on the ball".
§ Sir D. Glover
Then we had a very smooth discussion, and I stand corrected, but it was long and interesting. The hon. Member certainly intervened at great length. My hon. Friend the Member for Crosby made a point about financial problems, and my right hon. Friend said that under this Clause he would try to help. I hope that before we leave the Clause we shall have reassurance from my right hon. Friend on this aspect.
§ Mr. Michael Foot (Ebbw Vale)
Is the hon. Member asking the Government to say whether they will introduce a fresh Amendment to the Clause to cover the point which he is making?
§ Sir D. Glover
That is exactly what I am doing.
I turn to restrictive franchises and dealer arrangements. All through the Bill my right hon. Friend has stated that restrictive franchises, dealer arrangements, agencies, and so on, were not affected by the Bill. I believe that in law this is true, but the number of lawyers in the House who are not convinced that this is so is amazing. The hon. and learned Member for Walsall, North (Mr. W. Wells) either has not studied the Bill, or in his view in law these restrictions are not valid.
Perhaps my right hon. Friend, between now and the Report stage, could make the situation crystal clear by bringing in a new Clause stating that restrictive franchises and dealer arrangements which have operated in the past, or which a firm may wish to bring into force in future, are not affected by the Bill. If he were to do that, it would not widen or narrow the scope of the Bill, but it would be a great assurance to the enormous number of distributors and retailers who would thus see this protection in black and white and realise that their situation will not be adversely affected.
My right hon. Friend says that under the Bill as it stands they will not be adversely affected, but, by categorically stating it in the Bill, he would remove a good deal of misunderstanding which exists not only among people outside but among a number of hon. Members.
§ Mr. Hale
The intervention of the hon. Member for Ormskirk (Sir D. Glover) and his modest request to the Secretary of State to introduce an Amendment to make this provision crystal clear seemed to me to be somewhat hopeful aspirations. No one at the moment, not even my right hon. Friend the Member for Battersea, North (Mr. Jay), whose Amendment I support, has suggested that the situation is anywhere near crystal clear. But, of course, we do not know what has been said upstairs. We get our information about the progress of the Bill from the Press.
At an earlier stage of our proceedings I paid humble tribute to the Secretary of State, but now I am not sure that I was completely justified, although I do not withdraw it for I am anxious to be generous to him. I congratulated 1124 the right hon. Gentleman on his rout of the rebels. We are told, however, that they did a retreat from a mere sortie, that they are now on the attack again, and that concessions have been made. It may be that the right hon. Gentleman has been led to expect the same confabulations in another place.
§ Sir D. Glover
I can assure the hon. Gentleman that the whole proceedings on the Bill have taken place on the Floor of the House. I have only repeated what I have heard in this Committee.
§ Mr. Hale
I am glad that the colleagues of the hon. Member for Ormskirk have kept him informed. It has never been my desire to intervene in a private row, but the hon. Gentleman referred to me and I want to raise a point of substance.
This is a highly complex Measure which no one seems clearly to understand—certainly I do not. I therefore take refuge in theory. It is claimed that, if we do not know what it means, the judiciary will. That was said about clearance sales and about the Arabian oryx. But my recollection of litigation is that it is the habit of many judges to pretend not to know what a Bath bun is or not to have heard of a distinguished lady of the stage or her activities. Indeed, judicial ignorance often is taken to the point of being ludicrous.
We are told that it will be all right for the retailer, because he will be able to sue the supplier. Of course, we all know that the courts of law are open to all, like the London Tavern. Indeed, one can apply for legal aid to sue and can bring an action which, according to the previous subsection, is conditioned on the terms of an action for breach of statutory duty. But there is a standard of proof apparently quite different from the standard of proof under the criminal law because the supplier only has to establish a reasonable cause. He does not necessarily have to be right. He does not have to bring the sort of evidence which he would have to bring under the common law and the normal statute law of the land.
This brings us to the condition of the retailer. The wholesalers cut off his supplies. What happens? The retailer 1125 goes out of business. How long will it take him to bring litigation? When will the issue be tried? What will happen to his shop until then? What real chance is there of his contesting the action of the wholesalers?
It may be said that, after an application for an injunction, one can ask for an early trial. But even then the retailer will be faced with the day-to-day problems of carrying on business, and without the goods he cannot do so. If credit and supplies are both cut off, the retailer will be out of business before he can do anything. The suggestion is that the retailer should embark on litigation against a wholesaler on an issue on which that wholesaler may have the full support of his trade association. Litigation is not as easy as is implied.
It reminds me of the very distinguished and experienced solicitor who retired after a successful career. He was pestered to give his advice on what conditions were necessary for a litigant to view his litigation with confidence. He said, "First, you need a good case, and, secondly, good witnesses". "Ah", said his questioner. He went on. Thirdly, you need a good solicitor". Naturally said his questioner. Fourthly, you need a good counsel." Remarked his questioner "I expect so". The solicitor went on, Then, of course, you need a good jury and a good judge". With less enthusiasm, his questioner said, "I understand". But the solicitor added, cheerfully, "If you have all these six essentials all you need after that is good luck".
We are told that an action can be brought in the nature of an action for breach of statutory duty, subject to the defence details which are not available normally in cases of breach of statutory duty. There are not many actions for breach of statutory duty. In my experience, most of them are damages for personal injury caused by a breach of statutory duty. The Government are thus introducing an action for breach of contract as a form of breach of statutory duty.
The court, however, will not say what damages can be awarded. The Clause merely says that the Court may award such appropriate remedy as it thinks fit. This is to leave the matter at large. As one who, had I been in practice still, 1126 would have been called upon to advise the retailer as to his chances and possible remedies and about what the Court might think appropriate, I should probably have said to him, "I have not the faintest idea and nor will learned counsel have. Whatever opinion you get will show no certitude. If you are 'bust ' you might as well sue. If you can carry on without the goods you would be wiser to accept the position."
My right hon. Friend's Amendment says that if the wholesaler does something which the Act says is unlawful—withholds supplies—he may be punitively dealt with in certain circumstances. It would place the onus of proof upon the wholesaler to show that he was withholding supplies for proper reasons. That would be fair enough.
What possible objection can there be to that? He is the man who takes the punitive action against the retailer. He is the man who says, "I am bound by the Act to continuing supplying unless and until I can establish that I am satisfied that there has been a breach of the obligations about loss leaders, and so on".
On every consideration of equity, the man who asserts the wrong is the man who should prove the wrong. The retailer is entitled to supplies so long as he pays on the normal credit terms, and he is entitled to continue to receive supplies unless it is alleged against him that he has committed a breach of statutory duty. If supplies are withheld from the retailer on the basis that he has done something wrong, the man who takes the action is the man who should establish the, facts. [HON. MEMBERS: "No."] There is some doubt. I am constantly iii error, so I will quote Amendment No. 52:the burden o f proving that supplies of goods which have been withheld by the supplier from a dealer were withheld because the dealer had acted as described in paragraph (a) of subsection (1) of that section or was likely to act as described in paragraph (b) of that subsection in relation to the goods in question shall be upon the party bringing the proceedings".I accept that there is a dilemma there and that it is said that if the proceedings are being brought by the retailer, he has the burden of proving that the wholesaler withheld supplies wrongly. I do not want to dispute that, in the 1127 main, the retailer has to establish that goods have been withheld. No doubt, as part of his case, he would have to go into the witness box and say, "I did not commit any breach".
However, we are still left with the fact that the wholesaler then has to establish and must establish that there was a reason for committing that breach. There is the real question of proof and the retailer has no possibility of proving the state of the wholesaler's mind. I appreciate that it is said that this is the wrong way round, but the whole proceedings are the wrong way round. The wholesaler commits an act which he claims to be lawful. The retailer says that it is unlawful because the only assumption which permitted the wholesaler to withhold supplies is the allegation that the retailer has broken the terms of the Bill. All the retailer can say is that he has not done so. He does not know and will not be supplied with particulars and will not even know the nature of the allegation against him except by a long procedure of discovery or interrogation, which at once becomes a part of long and detailed proceedings.
But it is on the process of discovery that one is left with a virtually impossible onus. The retailer asks the question. The wholesaler says that his reasons for withholding supplies were—what? As I said earlier, he will probably allege no more than that a cheque was late, or payment was slow. If he has any doubt about the accuracy of the information upon which he acted in the first place, it is extremely unlikely that he will allege that his reasons were the use of loss leaders by the retailer. He will try to establish some breach of ordinary trading conditions, in which he would be perfectly justified in withholding supplies.
He is entitled to say that the retailer was a bad payer and that he was cutting off supplies because he was a bad payer, that his cheque was late, that he was not up to date and that not only did he not pay within the terms of the normal discount provisions, but did not pay until some little time afterwards and that he, the wholesaler, had cause to believe that the retailer was in a semi-solvent condition. In that way the issue is shifted.
1128 At this stage, on whom is the burden of proof? This is where to some extent I part company from my hon. Friends on the Front Bench.
§ Mr. Hale
That is probably true.
This is where the Bill is completely cock-eyed. There is not imposed on the wholesaler a statutory duty that he should have to seek some legal permission or approval for an act which ruins a man. As the Bill stands, and as it will stand as amended by my hon. Friends, the retailer is forced to bring proceedings, because no proceedings are brought against him. He suffers the injury, he suffers the damage and he suffers the ruin. He is the party bringing the proceedings, because, under the cock-eyed terms of the Bill, he has to seek a remedy in the courts for an injury, a remedy which the courts cannot give, on terms which he cannot establish.
Therefore, it is at the proceedings of interrogatories, the proceedings of ascertainment, that there is left to the wholesaler the right to shift the onus while there is left to the retailer the duty of establishing the issue which has to be established in more than one form. It is not sufficient for the retailer to say that he has not done anything wrong. He has to go further. On whom at this stage is the burden of proof? The Attorney-General would be in some difficulty in dealing with the burden of proof at this stage.
The retailer says, "I should like to establish that I have not committed any breach of the terms of the Act; I have sold no loss leaders; nor have I had any mass discount sales". He then has to establish that the wholesaler acted with that consideration in mind. How is the state of mind established in those circumstances? The wholesaler says that he is prepared to swear that he was not actuated by those considerations.
If we are to deal with this matter at all, we have to provide for the wholesaler to claim to withhold supplies on the ground of a breach of the terms, giving to the retailer at the time fullest details of the breach he has in mind and which he believes to have been committed, or has reasonable cause to believe to have been committed. At this 1129 stage, if the retailer serves a counter notice to say that he has not committed any breach and denies the charge in toto, supplies should not be withheld unless and until the wholesaler has applied for some judicial authority and established his case.
The wholesaler would then be the party bringing the proceedings, as he should be the party bringing the proceedings. As the party bringing the proceedings, he should have the onus of proof of those facts disputed by the retailer firmly placed on his shoulders. I think that this was what the hon. Member for Ormskirk had in mind—he was a little more vague about it than usual and we still have to find out what he expects to be done on Report. At present, I find it difficult to know who is bringing the proceedings at any one stage and on whom the burden of proof rests. The party bringing the proceedings for the purposes of the Bill should be the party taking a step in contravention of the Bill, and that is the wholesaler. That is why I think that under suitable conditions, under the safeguards which I have indicated, the burden should be on the wholesaler to take appropriate measures to inform the retailer and give him a right of reply before a withholding of the goods takes place.
§ Mr. Graham Page
The person bringing the action is the person who is injured. It is the retailer who has suffered, and it is normal that the person who suffers the damages brings the action. The hon. Gentleman has turned it the other way and is saying that the person who has caused the injury should bring the action.
§ Mr. Hale
The Clause specifically refers to an injunction. If we are to make an act unlawful, but specify that it can be done lawfully under certain conditions, surely the onus of establishing that there has been a breach of the conditions and justifying a special defence rests on the person who commits the unlawful act? This is assured by the first Amendment.
This is really one of the bases of an action for a breach of statutory duty. It is true that in an action for breach of statutory duty for a personal injury the person who brings the action is the person who has suffered, and he has to establish that he has suffered. He 1130 puts forward evidence to say that in his view what happened constituted a breach of statutory duty, but the hon. Member for Crosby (Mr. Graham Page) knows that the standard of judicial interpretation in such matters would be very different from the standard for common law.
The courts have said time and again that if an obligation is imposed by Statute the assumption that there has been a breach of statutory duty is not governed by the same at large conditions. The defence of an action for breach of statutory duty is a much more difficult form of defence because, in fact, in the main, the plaintiff merely has to establish the bare facts of the case and say that they are a breach of statutory duty, and the burden of supporting the consequent legal argument rests, in effect, on the defendant and not on the plaintiff, in spite of the general rule. A special defence imposes an obligation.
There it is. I rose only to reply to the hon. Member for Ormskirk. Of course, we want clarity. Of course, we need clarity. Where is it to come from? The Bill, has now become complex. It will, we are told, be amended again as a result of the discussions that have taken place either upstairs or downstairs—I would have thought downstairs was rather more appropriate in the circumstances. All of us find difficulties in matching up the implications of Clauses 2, 3 and 4.
The Bill has not specified in any way the nature of the remedies which a court can give, and I therefore feel that we are entitled to hear from the Attorney-General how he visualises the proceedings may take place, on whom the onus of proof is to lie, who is to bring them, what are the natures of the defences available, and what are the remedies which it is intended the courts should try to give.
§ Mr. Edward Gardner (Billericay)
I listened with great interest to the hon. Member for Oldham, West (Mr. Hale), and I think that I understood the story he told about proceedings in court and the condition; that have to be fulfilled. I thought that it was very funny, but I do not think that I followed very fully his argument which, as I understood it, was 1131 in favour of the deletion of subsection (4).
It seems to me that the matter at issue is not one that presents a novel difficulty, nor one that needs any novel remedy. Whenever one tries to look into a man's mind to discover his intentions, one is in a difficulty, be the intention one that has an element in a criminal case, or one that is part of a contract. The Court will have to apply the Bill when it becomes an Act. Courts have rules which have served well through the centuries.
The usual way of getting round this difficulty is the way in which this Bill, by this subsection, attempts to overcome the obstacles placed before it on the burden of proof. The hon. Member for Oldham, West—and I entirely agree with him—said that it would be an overwhelming difficulty and an absurd hardship to make the retailer who will have been injured further offended and exposed to further injury by insisting that he should have placed on his shoulders the burden of proving something which perhaps would not necessarily be something which could be proved by ordinary evidence, namely, an intention in the mind of the wholesaler. Because of that difficulty this subsection puts on the shoulders of the wholesaler the burden of proving what was in the wholesaler's mind in withholding supplies from the retailer.
I suggest that if one looks at it in that light, the matter is comparatively simple. The first stage is that one shows, and has to show, that there has been an attempt by the supplier to impose upon a retailer a measure for the maintaining of retail prices. That is achieved by satisfying the conditions set out in subsection (4). It is done by proving that the supplies of the goods were withheld by the supplier from the dealer.
One then proves, according to subsection (4,a)that down to the time when supplies were so withheld the supplier was doing business with the dealer or was supplying goods of the same description to other dealers carrying on business in similar circumstances.Thirdly, one provesthat the dealer, to the knowledge of the supplier had within the previous six months acted as described in paragraph (a) of subsection (1) of that section1132 namely, that he had sold goods below the resale price, or was likely to sell such goods in the future, This is all simplicity. There is no difficulty. Whether one thinks it is just or not, is another matter.
Let us consider the practical difficulties and the ease or the impossibility with which they can be overcome. These are matters which can easily be proved in a court. We then come to the question—and this is the essence of the argument—is it just from that moment onwards that the Crown—or the retailer should be able to sit down as it were in court and say, "I have proved my part of the case"?
As I understand it, the Amendment and those who support it seek to say that it would be wrong for the matter to be left there. The retailer—or the Crown if the Crown is bringing in proceedings—should go further than that. He should prove the intention of the wholesaler in withholding his supplies. I suggest that that would be asking the impossible in many cases.
Furthermore, I submit that it would be wholly unjust to a retailer to insist—as would be the case if the Amendment were accepted—that he should shoulder the burden of satisfying the Court as to what was in the mind of a supplier.
§ Mr. Gardner
Of course not—because here it is presumed that the wholesaler had done something unlawful unless he proves to the contrary, and this is something that he can well do.
§ Mr. Winterbottom
What about the case of the new applicant—the one who is applying for goods that he has not had before from a wholesaler? In such a case the wholesaler is completely innocent.
§ Mr. Gardner
The right hon. Member for Battersea, North (Mr. Jay) says that the wholesaler will be the victim. I see no possibilities of victimisation. The 1133 wholesaler is withholding supplies for one reason or another. There may be many good and justifiable reasons for withholding supplies. A supplier may be nervous about the credit-worthiness of a retailer. There may be many other reasons why he can quite properly say, "I am not prepared to supply this retailer." In that case all that he has to do, as the subsection stands, is to satisfy the court that the reason why he is withholding supplies has nothing to do with resale price maintenance.
§ Mr. Winterbottom
If the wholesaler has not been supplying goods in the first place he is condemned to go to the Restrictive Practices Court and be committed to an action through no fault of his own. To my mind, that is wrong.
§ Mr. Gardner
One can always take extreme and eccentric cases, but we still have to face the problem as a practical one, which has to come before the Court and with which it will have to deal. I submit that we are placing a quite intolerable and utterly unjust burden upon a retailer who has already been injured if we try to make him prove, in addition to the elements set out in subsection (4), the intention of the wholesaler.
§ Mr. Winterbottom
No. The cases that will arise where a retailer will not receive supplies will be infinitesimal. Those cases, on the other hand, which arise quite by accident, because of trouble arising over goods not arriving at the requisite time, will be far more numerous. I can see the dangers. Perhaps the hon. and learned Gentleman does not, but his is the mind of a lawyer; I am talking about the men who work in the shops and who know.
§ Mr. Gardner
I hope that I can say, in chorus with the majority of hon. Members, that it is our great concern, in debating this and all other aspects of the Bill, to achieve justice, whether or not we are lawyers. It is in the spirit of attempting to arrive at a just solution to these formidable difficulties that all these points are being debated today.
If we are trying to arrive at an equitable solution—and I am sure that that is the ambition of us all, including the right hon. Member for Battersea, North—perhaps it is not unhelpful to look at what the law has done in similar cases, 1134 to see whether it has achieved the justice and equity that we all desire, and to see whether it offers a possible example to follow. We have a good analogy here, in the law of contract. In Clause 2(2) the resale price is described asany price prescribed or purporting to be prescribed for that purpose by any contract or agreement between the dealer and any such supplier".For many years the law has been that if, on its face, a contract shows an illegal intention, the onus lies upon the party purporting to support the contract to show the legality of the intention.
We therefore come back to the difficulty of looking into a person's mind and discovering what his intention was. I submit that here we can say, in support of subsection (4) and against the suggestion that it should be deleted, that the situation is very close to that which arises in respect of an illegal contract. Once it has been proved that the wholesaler has done something which appears on the face of it to be unlawful, it must surely be for him to satisfy the Court that what he has done is lawful—because he is the only person who can achieve that.
§ Mr. M. Foot
I would not have intervened were it not for the speech of my hon. Friend the Member for Oldham, West (Mr. Hale). Apart from the speech of the hon. and learned Member for Billericay (Mr. Gardner), my hon. Friend's speech was unique in these proceedings in the sense that it was the first speech from the back benches on either side of the Committee in support of the Government. It was the first occasion on which the Government have had fulsome support from any back bench speaker on either side. I thought that that fact should be recognised.
My hon. Friend the Member for Oldham, West said that we must have clarity, and he asked where it was to come from. I am not sure whether his question was rhetorical, but we ought to try to answer it. I can appreciate my hon. Friend's point of view. He has made it abundantly clear in his previous interventions. This illustrates the whole difficulty of the Bill. There is a great deal to be said for it, and much to be said against it. That is why our proceedings are taking rather a long time.
1135 My hon. Friend is passionately opposed to some operations of resale price maintenance. He thinks that it is bitterly unjust that manufacturers should continue to be allowed to do some things that they have been doing in the past against retailers, and I have some sympathy with that point of view. The Secretary of State also has some sympathy for it—
§ Mr. Foot
—although his sympathy is rather recent. The right hon. Gentleman shakes his head, but my hon. Friend has indicated the fact quite clearly. That has been the guiding motive of my hon. Friend's approach to the Bill. I can understand his point of view. Therefore, he looks with suspicion at any proposal which will make it easier for manufacturers to continue in the future some of the practices which they have followed in the past.
I would beg my hon. Friend to consider that many of us who are in favour of the abolition of resale price maintenance as a general rule wish to bring it about in a manner which will not inflict injustice on anybody. We think that it could be done in that way and one of our complaints against the Minister throughout the whole of these proceedings has been that he introduced his Bill so hastily and with so little consideration, and, I would add, although I do not want to make any grave charges against him, with such a crude attempt to make it an electioneering possibility, that he never troubled to see how he could make the Bill just.
Therefore, what we on this side of the Committee are doing, and, I think, to give them credit, many hon. Members opposite also are doing, is to try to make the Bill just. There are a few of my hon. Friends who say that that is impossible, and I understand their view, too. However, I do not entirely agree with them.
That being so, we look at each Clause and try to discover how the balance of justice can be weighed. Very often it is an extremely difficult balance. My 1136 complaint against the right hon. Gentleman in the operation of the Bill is that anyone who reads his Second Reading speech will see that he did not realise what were the possible injustices in the Measure. He has had to learn from many quarters that there are injustices involved.
Let us consider this Amendment which was moved by my hon. Friend with what I thought was absolute clarity. The purpose of the Amendment—and no one can deny this, I imagine—is to mitigate the severity of the Bill in the interests of those whose position might be injured by the abolition of resale price maintenance. Therefore, it is to turn the balance back a bit in favour of those who might have their position injured by the general purposes of the Bill. That is what our intention is, and I do not think that the right hon. Gentleman would dispute that.
Since we normally find it so easy to find the intentions of the wholesalers we can, perhaps, more easily find the intentions of hon. Gentlemen opposite. That is the purpose of my hon. Friend, to make the Bill more just in that respect. I would have thought, therefore, that every hon. Member opposite who has doubts about the wisdom or the justice of the abolition of resale price maintenance would have supported this Amendment. I do not see how anyone who has genuine doubts about the abolition of resale price maintenance cannot support it. The only explanation why we have had so little support from hon. Gentlemen opposite who are opposed to the abolition of resale price maintenance is that these matters have been fixed in advance. I must say, even in that respect, that the proceedings on the Bill are almost, I do not say absolutely, unprecedented, and that I cannot recall an equal precedent.
I think that it was a wise decision on the part of the Government to take the Committee stage of the Bill on the Floor of the House. Owing to the postponement of the General Election we have plenty of time to debate the Bill. Therefore, we can have all the discussions on the Floor. As far as I can recall, almost every day of the Committee proceedings in the House, including the proceedings on this Amendment, have been preceded by discussions between hon. Members opposite, to which, apparently, some of the most eminent among them, such as 1137 the hon. Member for Ormskirk (Sir D. Glover), were not even invited.
§ Sir D. Glover
I am sure that the hon. Gentleman, who is always the soul of courtesy, would not wish to misrepresent my position. I have never tried to attend.
§ Mr. Foot
Certainly, I would not be discourteous to the hon. Gentleman. I think that he is very wise. He comes here unmuzzled. That is more than others can say. The hon. Gentleman who spoke earlier was unmuzzled too, but several other hon. Members have, apparently, made a bargain, because if they were really intent on amending the Bill in the interests of justice they would apply their minds to this Amendment as well as, we hope, to some of the later Amendments.
This is a serious constitutional matter. The Secretary of State should explain to the Committee, first, what is his attitude to the different Amendments. The idea that all the Amendments that we should discuss should be settled in private meetings is most disreputable. Indeed, when the right hon. Gentleman speaks later he may be making a complaint that the Leader of the Opposition did not go along with him to the private meetings to help him out.
§ Sir D. Glover
On a point of order. Is it in order, Sir Robert, for an hon. Member to imply that the Amendments which we discuss in the House of Commons are decided in private consultation when, in fact, they are chosen by the Chair? Is this not a reflection on the Chair?
§ The Deputy-Chairman (Sir Robert Grimston)
I do not regard it as a reflection on the Chair for an hon. Member on either side of the Committee to accuse another hon. Member of saying something improper.
§ Mr. Foot
Thank you, Sir Robert, for your Ruling.
We are discussing an important Amendment to the Bill which would adjust it in favour of those who might be injured by the abolition of resale price maintenance. I was arguing the fact that those hon. Members opposite who have indicated their fierce opposition to the Bill have, apparently, withdrawn their support for this Amendment and have not even attempted to participate in the debate. I was setting that fact alongside the published fact that these meetilgs have been taking place between the Secretary of State in charge of the Bill and a selected group of back benchers, and have been taking place on an unprecedented scale.
The right hon. Gentleman laughs, as if this is an inconsiderable matter, but if this precedent is followed it will mean that instead of Committee proceedings on the Floor of the House divulging to the nation what are the full issues involved, and, after all, that is the purpose of public discussion in the House, we are to have bargains fixed beforehand to settle which Amendments are to be accepted by the Government and which are not.
There are some hon. Members opposite who know which Amendments the Government will accept and some do not. On this side of the Committee none of us knows which Amendments the Government will accept and which they are not. This affects the matter. Apparently, some of the erstwhile rebels opposite have mitigated their rebellion because they know which later Amendments the right hon. Gentleman is prepared to accept.
§ The Deputy-Chairman
We cannot get on to the subject of later Amendments now. The hon. Member must confine his remarks to the Amendment before the Committee.
§ Mr. Foot
I do not think that I have ever strayed. from the rules of order, Sir Robert. It is a matter of grave consideration for the Committee that the discussion of this Amendment should be prejudiced by the kind of discussions in which the right hon. Gentleman has been willing to enter throughout the whole proceedings on the Bill.
1139 We know perfectly well why he has done so. We know that if he had not had these private discussions, the right hon. Gentleman might be in danger of seeing the Government defeated again. That might happen again—we never know. The speech of the right hon. Gentleman last week during the Budget debate—in which he referred directly to the Bill—indicated how much up against the ropes he was. He appealed to the Leader of the Opposition. The right hon. Gentleman takes a most curious constitutional view of this matter. He looks on his own back benchers as the dragon, and on himself as the maiden and on the Leader of the Opposition as a kind of reluctant, ungallant, delinquent St. George.
The right hon. Gentleman should understand that it is not the business of the Leader of the Opposition to come to the rescue of Ministers in distress. What is the Minister complaining about? He has us to help him—he has got me; does he want the rest of us too? We are doing our best for the right hon. Gentleman.
I hope that when he replies the right hon. Gentleman will tell us what commitments, if any, he has made to his hon. Friends about this Amendment and, if possible, on future Amendments. But let the right hon. Gentleman not take refuge, as was immediately his first thought, behind the rulings of the Chair. I am sure that if he wanted to tell us what commitments he has made to his back benchers, an opportunity could be found for him to do so. If he does not tell us today, he could do so when we move to report Progress. That would be a good moment for the right hon. Gentleman to tell the Committee what he told to his nondescript group of back benchers yesterday.
I plead with the right hon. Gentleman to recognise that this is not a small issue. If once we get a situation where a Minister will discuss detailed Amendments in advance with groups of back benchers, and will make undertakings and agreements about them, we shall destroy the authority of the House of Commons.
When a Labour Government were in power I cannot recall that on a single 1140 occasion detailed Amendments were discussed in private either in Standing Committees or in this Chamber. That, had it happened, would have been most improper. In the days of that Government I remember that when Amendments were moved on matters of critical importance, such as the period of conscription, no commitments were made outside the House of Commons. They were discussed here and the Minister defended them here. This Secretary of State comes to a debate, knowing that he has secured some of his back benchers—or, at any rate, he thinks he has—and, therefore, the only element of surprise left in the House of Commons is whether he has made as big an underestimate of the strength of the opposition to him on this occasion as on a previous occasion. I admit, that the element of surprise is not removed.
The right hon. Gentleman has made many miscalculations about the Bill and it may be that the rebels opposite will recover their nerve. I hope that they will. I have been thinking of offering to give them tutorial classes on Friday afternoons. I hope that they will stick to their guns and fight for the cause in which they believe, and that they will not be seduced by the right hon. Gentleman.
Above all, I hope that the rebels on the benches opposite will not try to deceive their followers in the country by saying that they have abstracted so much from the right hon. Gentleman. We have seen reports in the newspapers. We saw in The Times that the Minister stands firm. If it is true, the rebels should come out of their holes and fight once again. The trouble is, so far as we can gather, that the right hon. Gentleman has conceded nothing. All that the rebels have now is a miserable lot of crumbs of concessions—
§ 5.45 p.m.
§ Mr. Foot
It was the absence of these rebels which persuaded me, Sir Robert, against my will, to speak up on their behalf. But I will not pursue the matter further
I hope that those rebels who receive those miserable crumbs of concession 1141 will not go round licking their lips as though they had enjoyed a Bacchanalian feast, because that would not do. They have to go hungry and look bloated, and that is a most irritating assignment. I hope that they will be relieved from it. I hope that they will support us over this Amendment, because whatever else it does it is designed to readjust the balance in favour of those who might be unjustly affected by the abolition of resale price maintenance. I do not see how anyone who has hitherto opposed the Government can fail to support this Amendment.
As for those who have said that we can deal with the matter in some other way—the hon. Member for Ormskirk spoke on our Amendment and took the opportunity to say that he would like the Government to support a different Amendment and to introduce it at some stage.
§ Sir D. Glover
I am sure that the hon. Member wishes to be fair. During the discussion on Clause 2 my right hon. Friend did say that he would do that. He told my hon. Friend the Member for Crosby (Mr. Graham Page) and myself so, because we had made this representation to him.
§ Mr. Foot
But he has not done it yet. The right hon. Gentleman has had plenty of time to put down an Amendment. I do not say that it is unprecedented—it is not done frequently—but the right hon. Gentleman has introduced quite big Amendments into the Bill under pressure from hon. Gentlemen opposite. The hon. Member for Ormskirk has not exerted his power to the full. He should have some power. He is the only back bencher who dared to speak on behalf of the Government a few weeks ago, and if the Government lose him where are they? What will they have left? They will be left with the P.P.S.s.
The hon. Member for Ormskirk has a considerable opportunity. At any rate, he has this advantage. He could say to the Government, "I should like an Amendment covering the very important point about credit facilities which was mentioned earlier". I think that it is an important point, and it would be a further addition to making the Bill a little more just as some would say, or a little less unjust, as others would say. 1142 If the hon Gentleman wants such an Amendment and if he does not think that the Government will introduce it, he could put down an Amendment himself, and some of us would be willing to sign it so that he would not withdraw it later.
The hon. Member for Ormskirk has missed his opportunity. He will not have to do so on Report. We shall all watch carefully whether the Government put down an Amendment which he has proposed, and if not, whether the hon. Gentleman puts it down. We shall also watch carefully how the hon. Gentleman and his colleagues vote when that Amendment is discussed, and if it needs to be voted upon, because we, no doubt, should support it—if the Government put down such an Amendment.
Hon. Members on this side of the Committee propose Amendments of this nature which are designed to make a bad Bill a bit better, or a good Bill a little better still—if people prefer to put it that way While doing that we also want to restore the debate on this issue to the House of Commons, and away from the hole and corner basis where, hitherto, the right hon. Gentleman has been trying to settle these matters. We are not content that the affairs of the nation should be settled in back rooms.
§ Dame Patricia Hornsby-Smith (Chislehurst)
I am grateful, Sir Robert, for being allowed to catch your eye and to my right hon. Friend for giving way. I do not wish to detain the Committee for very long.
I feel very strongly about some of the arguments which have been advanced this afternoon. We have had an amusing knock-about turn from the hon. Member for Ebbw Vale (Mr. M. Foot), but I do not think that he added much to the argument. I find myself in the rare and happy position, for once, of being—I think that it is almost the first occasion—in very substantial agreement with the hon. Member for Oldham, West (Mr. Hale).
I have felt throughout the debate that the manufacturers have got away with 1143 murder by hiding behind the skirts of the shopkeepers on whom sentiment, propaganda and everything else has been poured out. It is the manufacturer who fixes the prices. He works out his production and other costs and decides his wholesale price and thereafter fixes the resale price, about which the shopkeeper has no say whatever.
If, as I have consistently believed, with the exceptions by which certain trades and industries, on a reasonable and fair margin, may prove to qualify for exemption, overall I have unfailingly supported my right hon. Friend during the whole last three months on the proposals outlined in the Bill for overall abolition of resale price maintenance. For the benefit of the hon. Member for Ebbw Vale, I should say that I was not at the meeting last night, so I do not know what opinions may or may not have been voiced on the Amendments. But to suggest that all these Amendments could be put on the Notice Paper without there being the normal consultation between party hon. Members, would be to live in the realms of fantasy.
§ Mr. M. Foot
Of course, I was not suggesting hon. Members should not consult one another, but what I think is injurious to the House of Commons is that the Minister in charge of the Bill should tell groups of back benchers which Amendments he is prepared to accept and which he is not prepared to accept.
§ Dame Patricia Hornsby-Smith
I doubt whether he has done that. As an ordinary back bencher I am ignorant of any such plot.
I go to the point about the onus of proof being either on the manufacturer or on the shopkeeper. I am not unduly worried about Woolworth's, Sainsbury's, Tesco, or one of the giants. They can battle with the manufacturer. They can afford to have the best legal advice and to carry their case through the courts but it seems quite outrageous if this is applied, not to the big shops, but to the small shopkeepers. It is monstrous that the onus of proof should be put on the hundreds of thousands of little shops rather than on one of the giant detergent companies or great manufacturers in some other spheres.
§ Mr. Winterbottom
Will the hon. Lady distinguish between the giant manufacturers and the people who actually supply the small shops, little wholesalers? They are not big business people, but ordinary wholesalers supplying, in the main, at the most, 20 or 30 shops. That is the principal supply to the ordinary small shops of the country and it is quite divorced from anything the hon. Lady is talking about.
§ Dame Patricia Hornsby-Smith
The hon. Member can go round any shop he chooses, but he must not try to tell me that its shelves are stocked generally from small wholesalers. There are small wholesalers providing certain types of goods, but overall the proportion of small wholesalers is smaller than the proportion of small shopkeepers. The small shopkeeper is put into a position where he has to carry forward his case against the manufacturer and the supplier.
If there were so much strength and power among the shopkeepers and retailers in bringing cases against restrictions imposed by manufacturers and wholesalers generally, we should not have needed all the machinery of the Monopolies Commission. That shows how powerless the small retailer has been because only as a result of the most intensive investigations by the Monopolies Commission procedure has there been any strength or power provided to deal with victimisation of shopkeepers.
§ Dame Patricia Hornsby-Smith
The hon. Member's hon. Friend is now suggesting that the shopkeeper has to take on the giant.
§ Dame Patricia Hornsby-Smith
The shopkeeper has to take on the supplier and to bear the onus of proof.
§ Mr. R. J. Maxwell-Hyslop (Tiverton)
The shopkeeper does not have to do that, because under subsection (3) the Crown can do it. That is the whole point about having subsection (3) in the Bill.
§ Dame Patricia Hornsby-Smith
The Crown will have a busy time in that case, but my hon. Friend's interpretation is 1145 not the interpretation put on the Amendment by the right hon. Member for Battersea, North (Mr. Jay).
§ Dame Patricia Hornsby-Smith
That is splitting hairs. It is grossly unfair to the shopkeeper. The onus of proof should be on the wholesaler or the manufacturer and not generally on the smaller unit, the small shopkeeper. To say that it can be put on the Crown, when we consider the great multiplicity of shopkeepers, is only begging the question. I feel very strongly about the onus of proof being put on the shopkeeper, and I support my right hon. Friend the Minister on the Clause as it stands.
§ Mr. Heath
The right hon. Member for Battersea, North (Mr. Jay) said that a case must be made for Clause 4, and, of course, I accept that. The Amendment with which we are dealing concerns subsection (4), which contains the provisions regarding the burden of proof in proceedings against a supplier for withholding supplies under Clause 2. The Committee will recall that when we were dealing with Clause 2 we had a very long discussion about many points arising out of it, some of which concerned Clause 4. There is, therefore, a close relationship between these two Clauses and it is natural that the discussion in Committee has dealt with these points together.
I listened with great interest to what the hon. Member for Oldham, West (Mr. Hale) said. It seemed that his main thesis was that the chance of successful litigation in the modern world was entirely nil. I am glad to see that the hon. Member agrees. He seemed to suggest that on the whole it would be very much better if we did not have legislation. I think many hon. Members who have been following the Bill for some time will agree.
We shall not argue about that thesis, because the hon. Member then turned his mind to the particular point at issue 1146 and accepted that we may have to have legislation and may have to have litigation and asked what we should do about it. The hon. Member for Ebbw Vale (Mr. M. Foot) was right when he said that his hon. Friend the Member for Oldham, West came to my aid and supported the Bill, but that happened because he picked up the Notice Paper and read Amendment No. 52 in the belief that that was in the Bill, and promptly decided to attack it. [Laughter.]
§ Mr. Hale
All this is good clean fun and I would not for a moment criticise the selection by the Chair, but I hope the Secretary of State will do me the justice to remember that we are discussing three separate Amendments and that the first is to leave out subsection (4). It is our duty to discuss these Amendments. The deletion of subsection (4) would take away any defence and the onus of proof would be left at large. In that, I support my right hon. Friend the Member for Battersea, North in toto.
In the third Amendment the onus of proof would be shifted almost in toto to the retailer. I suggested that, the retailer having discharged the burden of proof that there had been withholding and the burden of proof of damage, my right hon. Friend was possibly going too far in asking the retailer to bear the burden of trying to establish what was in the retailer's mind.
§ 6.0 p.m.
§ Mr. Heath
At that point the hon. Gentleman showed himself entirely in agreement with what is in the Bill, and I am glad that he has repeated it.
The hon. Member for Ebbw Vale emphasised that what we needed to obtain was justice, and I fully accept that. He went on to say that this is always a very difficult balance and I agree with him. I said exactly the same thing when we were dealing with loss leadering—that the reason we wanted certain provisions in the Bill was to act as an effective deterrent and to secure justice.
The hon. Member has discussed many people's intentions. Many of us on this side of the Committee would respect his intentions to secure justice rather more if he did not mix them to such a large degree with some of the rather cruder 1147 forms of political engineering and manœuvring into which he has been tempted so often during the Committee stage and in which he has indulged to no mean effect. It is all good clean fun. When he said that he regarded my remarks to the Leader of the Opposition—about his behaviour being the most reprehensible and contemptible of any modern Leaders of the Opposition—as an appeal to him, I did not understand him.
I was not accusing the right hon. Gentleman of inconsistency on the Finance Bill. All I was saying was that so hungry is he for power that he has not the political courage to stand up and say exactly what his position is on the Bill. That is not an appeal to the right hon. Gentleman to come to our aid; it is merely a request that he should tell the country exactly what he thinks.
§ Mr. M. Foot
But the right hon. Gentleman went further than that. What he asked the Leader of the Opposition to do was to hold his hand.
§ Mr. Heath
That was a very weak reply. Seldom have I seen the hon. Member have to work so hard to make his point as he has worked today. He started on the Bill with a rapier, and we all admired him, but it has become a bludgeon in a rather crude form and rather boring to the rest of us.
The right hon. Member for Battersea, North spoke a great deal about suppliers being forced to supply against their will. In Clauses 2 and 4 we are dealing with the position of the supplier not being allowed to withhold on the ground that the goods are being sold below the recommended price. This point often seems to have been confused in the right hon. Gentleman's mind, for he believes that this means that he cannot withhold on any other ground.
Let us be clear: that is not the position. We are dealing with withholding on the ground that the article was sold below the recommended price. We are dealing only with that point. The right hon. Gentleman's Amendment does not tackle the problem of a man having to sell to someone who is selling below the recommended price. He made many remarks about people 1148 selling against their will, but this is in no way affected by his Amendment. All his Amendment does is to alter the onus of proof in the procedure. Let us be quite clear that this is the point with which we are dealing in the debate and in the Amendment.
§ Mr. Winterbottom
The assumption, we are told, is that this Clause starts with the principle that low prices in terms of resale price maintenance have to be taken into consideration. If that is so, why is it specifically mentioned in the two Clauses? I quote from the Clause:…it shall be presumed, unless the contrary is proved, that the supplies were withheld on the ground that the dealer had so acted or was likely so to act.Thus, prior to the definition, the conception that a lowering of prices had applied is not strictly accurate. If this is deleted the onus of proof is changed away from the wholesaler, but it is changed only in so far as we come to the last part of the Clause.
§ Mr. Heath
Yes, the onus is changed in that respect because the onus of the first three points, to which my hon. and learned Friend the Member for Billericay (Mr. Gardner) referred, is placed on the person bringing the action, which is the retailer or the retail association presumably backing him, or the Crown. I agree with that point.
1149 There were two other points which the right hon. Gentleman mentioned in which he said that the onus fell doubly on the supplier. It is true that from the point of view of the procedure for exemption, the onus is there to be placed, and I will deal with it, but it is in no way connected with this onus. It is, therefore, distracting to say that there is a double onus, because it is only one onus which exists in connection with this procedure.
We want to be clear about this. The right hon. Gentleman said that the supplier had to prove a negative. I do not agree, because what the supplier does is to show the positive reason why he took this action and to show that it was not a reduction in the recommended price which led to it. He has every opportunity to do that, and it is, therefore, a positive thing which he has to do; he must show that there was a good reason for his action and that his reason was not a cut in the recommended price. I could in no way accept that this procedure provides any sort of precedent for location of industry or anything even more closely connected than that subject.
What the Amendment does, therefore, is to leave the entire onus on the plaintiff—the dealer who is affected or the Crown. This means that he would have to prove affirmatively that the supplier had withheld supplies on the ground that the dealer was selling or was likely to sell below the recommended price.
As my hon. and learned Friend the Member for Billericay clearly pointed out, in the procedure under the Bill there are three things which have to be shown before the onus falls on the supplier, and they are set out in subsection (4): that the supplies were withheld from the supplier; thatthe supplier was doing business with the dealer or was supplying goods of the same description to other dealers carrying on business in similar circumstances";and, thirdly,that the dealer, to the knowledge of the supplier had within the previous six months acted as described in paragraph (a) of subsection (1).The procedure is that these three things have to be shown first of all by the retailer or by the Crown, and the onus is on them to show them. That is the first part of the proceedings.
§ Mr. Heath
They may or may not be in dispute, but the responsibility for showing them rests with the person bringing the action, which we believe to be right. It is after this that the supplier has the onus placed upon him of taking action. If we adopted the Amendment, the plaintiff would have to prove in all cases—not only in cases of withholding; supplies but in cases of supply on significantly less favourable terms—why the supplier had been withholding supplies. We believe that this would crease very considerable difficulties in enforcing the prohibition.
This is where the question of justice comes in, because what we require to do is to prevent the withholding being used as a means of enforcing resale price maintenance. This is where the justice of the operation comes in, which was the point to which the hon. Member for Oldham, West called the attention of the Committee, because—here I agree very much with my hon. and learned Friend the Member for Billericay and some others who have spoken, including my hon. Friend the Member for Crosby (Mr. Graham Page)—it would be extremely difficult for anyone to show or to prove why a supplier had withheld supplies from a dealer.
The hon. Member for Oldham, West illustrated clearly that one would require all the processes of discovery, and so on, to make an attempt to do this. He said, rightly, that he believed that it would be wrong to try to use those procedures in this case and that it would not be justifiable. On that, I agree with him that it is not right to use all the processes of discovery, and so on, in this case, because I do not believe that there can be anything unreasonable in placing the onus on the supplier, as we do in this subsection, because nobody is in a better position to know why he has withheld supplies than the supplier. Therefore, in appearing in Court in the second half of the procedure he can give the reasons why he has withheld supplies.
As several hon. Members have said, there can be very many good reasons for doing this. The hon. Member for Sheffield, Brightside (Mr. Winterbottom) 1151 pointed out that there might be a shortage of stocks. What could be a sounder reason for withholding supplies than a shortage of stocks or produce? I do not agree with the hon. Gentleman when he starts to deal with the procedure which would be followed, because the first thing, obviously, would be that the supplier would give this reason to the retailer or to the wholesaler, and the dealer has to weigh up in that case whether he wants to bring an action or ask the Crown to bring an action.
There are many good reasons why a supplier should withhold supplies, and he is perfectly entitled to use these and to give them as the reasons, if they are genuine. It is for the Court to judge. But no one is in a better position to know this than the supplier himself, and it is for that reason that we believe that the onus should remain where it is in respect of this paragraph, though there are certain points which have been raised which I want to deal with in a few moments.
§ Mr. Hale
I did not say that the process of discoveries and interrogatories should not apply. It will undoubtedly apply. It is inevitable. I said that, if one has to indulge in litigation which involves that long process, the retailer may very well be out of action and unable effectively to pursue his remedy because of the length of time involved. If the wholesaler, for instance, acts upon a notice he has received from the wholesalers' association, one would have to go to discovery to produce that. If he pleads that he did not withhold because of an alleged breach, one would have to go to interrogatories, perhaps, to ascertain that.
I concede that this is a very difficult point. There are arguments on both sides. Personally, I agree with the first Amendment as it stands, to leave it to the ordinary processes of the law. I have expressed a little doubt about the second Amendment, because I think that it goes just too far in one point on the onus of proof. Could not the whole thing be met on Report by the introduction of a Clause providing that, if the wholesaler ceases to supply someone whom he has supplied regularly, he should state his reasons in writing at the time? If he states the wrong reasons, 1152 he is still open to the possibility of litigation, but in the ordinary commercial course it would mean that, at any rate, the fact is clear to start with; the retailer knows where he stands and knows why the wholesaler says he stands there.
§ Mr. Heath
I am certain that in the normal relations between suppliers—wholesalers and retailers, and so on—there would be an explanation of what the reasons are for action which has been taken. That is bound to happen, and I do not disagree with the hon. Gentleman in any way on that.
As to the hon. Gentleman's point about the length of time and his question as to how the retailer will bring the action, I am told that it would be possible to obtain an interim injunction. I have no doubt that, if a retailer wants to bring an action, he can have the advice of his retail association or indeed, as the Bill provides, he can come to the Board of Trade and the Crown can itself take action. In effect, those matters are covered.
I am advised on this aspect of the subsection that it is an accepted principle of the law of evidence that the burden of proving a fact which is peculiarly within the knowledge of a person should lie on that person. Indeed, this was the principle which the hon. Member for Oldham, West himself supported. This subsection is based on that principle. I believe that the way in which the subsection is framed—namely, that the retailer or the Crown has first to show these three things. and then the supplier is required to show the reason why he did this—is the best balance we can get over the whole field from the point of view of justice.
There is one point with which I want to deal in this respect. It was the point brought up in our long debate on Clause 2. It is the point about supplying for credit and for cash. It was mentioned, and strongly emphasised, by my hon. Friend the Member for Crosby in the original debate, by the hon. and learned Member for Northampton and the hon. Member for Manchester, Cheetham (Mr. H. Lever), who are both not here, and by the hon. Member for Brightside. All those hon. Members pressed upon me that 1153 I should reconsider this aspect of Clauses 2 and 4. I then gave an undertaking to the Committee that I would reconsider this and consider what action could be taken about it, because I believed that we were trying to secure the same objective.
I remember that I set out at the time that the objective was to ensure that the general arrangements for trading were not interfered with by these Clauses and indeed that it was an attempt to secure justice, for which the hon. Member for Ebbw Vale has asked. I have given careful consideration to the points which were raised during the debate on Clause 2. I think that a powerful case was then made out in Committee.
I believe that my task as the Minister in charge of the Bill is to justify to the Committee and to the House of Commons the Bill itself and the steps we take to amend it. That is a task which I shall always do my best to carry out. The hon. Member for Ebbw Vale can be quite assured of that. It is here in Committee or in the House of Commons on later stages that the decisions are taken, and rightly so.
The hon. Member for Ebbw Vale, with all his historical knowledge, must have an extraordinary interpretation of parliamentary history if he imagines that these things are never discussed outside the Chamber by Members, whatever their parties or whatever their groups. My task is to justify to the Committee what I propose to do, or what the Government propose to do, and what is in the Bill. This is a task which I shall always endeavour to carry out.
§ Mr. M. Foot
I think that the detailed discussions by a member of the Government with his own back benchers of the Clauses in a Bill and which Amendments he proposes to accept are unconstitutional. These are very different from general discussions of a general nature.
§ Mr. Heath
The hon. Gentleman is presuming on his knowledge of what discussions have taken place between any Members or Ministers. He must be living in an ivory tower if he believes that during the processes of a Bill these matters are not discussed with a large number of people who are concerned about the nature of a Bill, once it has 1154 been published. Indeed, it is absolutely right—there is nothing unconstitutional about it—that those affected by the Bill, if they wish to make representations, should do so, and that Ministers and hon. Members generally should listen to them.
§ Mr. M. Foot
I quote to the right hon. Gentleman the report in The Times today on this matter. It says what I said to the Committee. The report, by that newspaper's political correspondent, says that the right hon. Gentleman—
§ Sir D. Glover
On a point of order. Can a Member of the House be held responsible for anything in The Times?
§ The Chairman
There is nothing disorderly in an hon. Member reading out a quotation from a newspaper.
§ Mr. M. Foot
Thank you, Sir William.
The report in The Times, to which I have already referred, has the headline:Mr. Heath Stands Firm on Prices.I will not lead the whole report. I will make it as succinct as possible. These words appear in the report:He appears to be prepared to accept only minor changes which will not affect the main principle of the Bill and others relating to the sale of drugs.That is the interpretation of what happened at the meeting between the right hon. Gentleman and his back benchers. Many of the other newspapers have also stated that the right hon. Gentleman has refused to accept any substantial Amendments to the Bill and that he has made his refusal clear to his back benchers. Will the right hon. Gentleman tell us whether those reports are correct'' I say that it is quite improper for the right hon. Gentleman to have entered into as detailed discussions with his back benchers on this issue, as he obviously has from the reports in the Press.
§ Mr. Heath
If the hon. Member will do me the courtesy of reading my Second Reading speech again, he will see that I told the House exactly what The Times has reported there that I said: that we were not prepared to alter the principles of the Bill, but that I would do everything else to make the Bill as workable, as practicable and as good a Bill as possible, Great as is my admiration for 1155 the political correspondent of The Times, I must point out that, considering that speech, that part of his article does not show great political prescience.
I want now to deal with the credit and cash aspect, because very powerful arguments were very strongly put forward on both sides on this matter. The point was made that a supplier should never be assumed to have withheld supplies in breach of Clause 2 merely because he had refused to grant credit to a dealer. Here, again, it is a question of the balance. What has obviously worried many hon. Members is that dealers, and particularly new dealers, might be able to bring undue pressure on the supplier in the case of payment by credit or by cash, and that it therefore would be unfair to a supplier in having him taken to Court, with all the expense, and so on, involved.
I feel that this is a point that ought to be met. I said that I would do my best to meet it when I listened to the end of the debate on Clause 2. I will therefore, at a later stage, table an Amendment to deal with it. The Amendment will make it clear that a supplier will be able to offer what credit terms he chooses, or to insist on cash, without his running the danger of the threat of legal proceedings in which the burden of proving his motives would be on him, so that, on this particular aspect of credit and cash, the burden of the proof would be changed over—
§ Mr. Jay
This question of credit is very important, but why does the right hon. Gentleman make a distinction between this reason and other perfectly bona fide reasons from withholding supplies, such as that a manufacturer might withhold supplies because he did not think that the dealer was reputable, or that he had not sufficient supplies to let the dealer have any? Why should the man be put in a different legal position in this particular case?
§ Mr. Heath
Because of the points made by hon. Members, I believe that in those cases the supplier in Court can show positive alternative reasons why he withheld supplies. The reasons are in his mind, it is he who can best do it, and it is very difficult for a retailer to prove what is in the supplier's mind. It 1156 is, therefore, very possible for the supplier to do it. In cash and credit transactions the balance is different, because I believe that the retailer can take the man to court much more easily.
Those have been the fears expressed on both sides—
§ Mr. Heath
If the right hon. Gentleman did not listen to the debate on Clause 2, I am sorry, but those points were made very forcibly and very fully, among others by the hon. Member for Brightside, who has just left his place. I believe that this is so, and that, on this particularly important aspect, dealers would be able to bring unjust pressure, perhaps, on suppliers in this case, when it is much more difficult for the supplier to prove his position.
I therefore believe that it is right on this aspect to table an Amendment. I believe that it would be wrong to accept the right hon. Gentleman's Amendment, which completely switches the position in all other cases. I therefore ask the Committee to reject the Amendment, and say that I will, on Report, put down an Amendment to deal with cash and credit arrangements.
§ Mr. A. J. Irvine (Liverpool, Edge Hill)
The object of our Amendment is to get the burden of proof fairly adjusted, and in referring to the Amendment that he has said will be put down on Report the Secretary of State has really admitted the principle upon which we have based our present arguments. In the proposal he tells us he will make, he is, beyond question acknowledging the imperfection of this subsection as it stood.
The right hon. Gentleman proposes special treatment in the case of a supplier withholding goods where the ground for so withholding is that the supplier has reason for not wanting to give credit to a particular dealer. I follow that, but I cannot see how the right hon. Gentleman can discover a compendious and logical answer to the question put by my right hon. Friend the Member for Battersea, North (Mr. Jay): how can he differentiate what may be a good reason for withholding goods from a dealer from a whole lot of 1157 other equally good reasons for so doing? That is the right hon. Gentleman's difficulty, and I do not see how he can escape from that dilemma.
During the course of the arguments on this Amendment I paid particular attention to the observations of the hon. and learned Member for Billericay (Mr. Gardner), who laid great stress, as have other hon. Members, on the point that in such a matter it is quite necessary that a substantial burden of proof must in the ordinary way be discharged by the plaintiff. The hon. and learned Gentleman then argued that at a certain stage it was unreasonable to expect the plaintiff to go further, and appropriate that the matter should, if I may so express myself, be explained to the court by the defendant.
I want to put our argument for the Amendment absolutely fairly, as far as I can. In considering the fairness of treatment as between dealer and supplier, I quite acknowledge that under the machinery proposed by the Bill a considerable burden of proof is placed on the plaintiff. It is right in principle that it should be so, but I acknowledge that it is so, and it may be worth recapitulating to the Committee what the plaintiff has to prove.
The plaintiff has to prove a good deal. As I understand, he first has to prove that he tried to get the goods. Secondly, he must prove that there has been a withholding of the goods. He then has to go on to satisfy the Court that the supplier was doing business in the goods up to the time of the withholding. In addition to all that, the dealer has to establish that the supplier had knowledge that he, the dealer, had either sold a t a price lower than that stated or had revealed an intention so to do.
The object of our Amendment is to meet a difficulty that we think arises when that point has been reached and all these things have been proved by the plaintiff. We still think that the Bill as it stands imposes what may in certain circumstances be an unreasonable burden of proof on the supplier, and perhaps I can best illustrate what is in my mind by reference to a particular class of case, which is not far-fetched and which may quite reasonably and naturally take place in the ordinary course of business affairs.
1158 Let us suppose that when the point has been reached at which the plaintiff has proved these matters, and proved them at the end of his case to full satisfaction, a defendant supplier—after the plaintiff has completed his case—says, "I withheld the goods". He admits the withholding. He admits that the likelihood of the retailer selling below the price was a factor in his decision, but then says, "But that was not the only factor—there were other factors." He may, for example, bring forward as another factor the history of his relations with the dealer and the circumstance that the dealer has in the past proved to be, perhaps, a dilatory payer or has defaulted or behaved unsatisfactorily in a previous transaction with him.
What we say and what, we argue, would be the effect of our Amendment is that in that set of circumstances, which, I repeat, is not far-fetched, there should not be any presumption to hinder, obstruct or channel the determination which the court will come to upon what, on this hypothesis, is the important thing which, among several factors, weighed in the mind of the supplier and was the paramount or governing factor.
An important consequence of our Amendment is that in the kind of situation which I have put forward, the Court would not be circumscribed in the way in which he Bill circumscribes it. In weighing the relevant significance of different factors in the supplier's mind, the Court would come to its conclusion upon their relative significance in the event that occurred unencumbered by any factors of presumption or burden of proof. I ask the Committee to agree that this is; desirable and would be an improvement. This is what we want.
Once the plaintiff has completed his case, if he has succeeded in proving the matters contained in the four heads to which I have earlier referred, the desirable position is surely that the defendant should have the opportunity of coming forward and giving some other reason than that of selling below the resale price for withholding the goods. It should then be open to the Court to consider what may, on the evidence, amount to a considerable 1159 number of factors operating in the supplier's mind and, upon the evidence, to come to a decision as to which was the effective one unencumbered by presumptions written into the Bill to govern the situation.
The Court should have the unencumbered power to infer from the evidence which it has heard from the plaintiff—and, on my hypothesis, also from the defendant—what was the paramount ground for the withholding of supplies by the supplier. The Bill puts upon the supplier the burden of showing affirmatively that the paramount ground for the withholding was, in the case which I have just put, the difficulty that arose in an earlier transaction. This, we say, should not be an offence. In certain cases, it would put too heavy a burden unfairly upon the supplier.
I support the view expressed by my right hon. Friend that on this whole issue the supplier or the manufacturer may, in a great many cases, be a small man, whereas, by the same token, the retailer might be a powerful body. Therefore, considerations of prejudice on this point which were voiced by the other side of the Committee should not be given undue weight.
§ In this rather interesting point, the right way to deal with the matter is, first. to provide in the Bill for the plaintiff to prove his case up to the point that the Bill provides, because up to that stage the Bill acts rightly and fairly. Then, provision should be made that the defendant can put forward the ground which, he says, was the operative ground in his mind when he decided to withhold the goods. When these two matters are before the Court, the Court should have, in the context of all the evidence that it has heard, the power and the discretion to conclude without any presumption what was, upon the evidence, the paramount effective ground of the supplier for withholding the supply of goods.
§ That is our view. We are convinced that the argument is a serious and substantial one. We believe that our Amendment would improve the Bill in an important respect. Having heard the arguments on both sides, I am sure that it will be the wish of my right hon. and hon. Friends to divide the Committee upon this issue.
§ Question put,That the words proposed to be left out to "or", in line 16, stand part of the Clause:—
§ The Committee divided: Ayes, 263, Noes 199.1163
|Division No. 75.]||AYES||[6.36 p.m.|
|Agnew, Sir Peter||Butler, Rt. Hn. R. A. (Saffron Walden)||Erroll, Rt. Hon. F. J.|
|Allason, James||Campbell, Gordon||Farey-Jones, F. W.|
|Amery, Rt. Hon. Julian||Carr, Rt. Hon. Robert (Mitcham)||Farr, John|
|Ashton, Sir Hubert||Cary, Sir Robert||Fell, Anthony|
|Atkins, Humphrey||Channon, H. P. G.||Finlay, Graeme|
|Awdry, Daniel (Chippenham)||Chataway, Christopher||Fisher, Nigel|
|Balniel, Lord||Chichester-Clark, R.||Fletcher-Cooke, Charles|
|Barber, Rt. Hon. Anthony||Clark, William (Nottingham, S.)||Fraser, Rt. Hn. Hugh (Stafford & Stone)|
|Barlow, Sir John||Cleaver, Leonard||Fraser, Ian (Plymouth, Sutton)|
|Barter, John||Cooke, Robert||Freeth, Denzil|
|Beamish, Col. Sir Tufton||Cooper, A. E.||Galbraith, Hon. T. G. D.|
|Berkeley, Humphry||Cooper-Key, Sir Neill||Gammans, Lady|
|Bevins, Rt. Hon. Reginald||Cordeaux, Lt.-Col. J. K.||Gardner, Edward|
|Bidgood, John C.||Corfield, F. V.||Gibson-Watt, David|
|Biffen, John||Coulson, Michael||Gilmour, Ian (Norfolk, Central)|
|Biggs-Davison, John||Courtney, Cdr. Anthony||Gilmour, Sir John (East Fife)|
|Bingham, R. M.||Craddock, Sir Beresford (Spelthorne)||Glover, Sir Douglas|
|Birch, Rt. Hon. Nigel||Critchley, Julian||Glyn, Dr. Alan (Clapham)|
|Bishop, Sir Patrick||Crowder, F. P.||Godber, Rt. Hon. J. B.|
|Black, Sir Cyril||Cunningham, Sir Knox||Goodhew, Victor|
|Bossom, Hon. Clive||Curran, Charles||Gower, Raymond|
|Bourne-Arton, A.||Currie, G. B. H.||Grant-Ferris, R.|
|Bowlen, Boderic (Cardigan)||Dalkeith, Earl of||Green, Alan|
|Box, Donald||Dance, James||Grimond, Rt. Hon. J.|
|Boyd-Carpenter, Rt. Hon. John||d'Avigdor-Goldsmid, Sir Henry||Grosvenor, Lord Robert|
|Boyle, Rt. Hon. Sir Edward||Digby, Simon Wingfield||Gurden, Harold|
|Braine, Bernard||Donaldson, Cmdr. C. E. M.||Hall, John (Wycombe)|
|Brewis, John||Doughty, Charles||Hamilton, Michael (Wellingborough)|
|Bromley-Davenport, Lt.-Col. Sir Walter||Douglas-Home, Rt. Hon. Sir Alec||Harris, Frederic (Croydon, N.W.)|
|Brown, Alan (Tottenham)||Drayson, G. B.||Harris, Reader (Heston)|
|Browne, Percy (Torrington)||Du Cann, Edward||Harrison, Col. Sir Harwood (Eye)|
|Buck, Antony||Eden, Sir John||Harvey, John (Walthamstow, E.)|
|Bullard, Denys||Elliot, Capt. Walter (Carshalton)||Hastings, Stephen|
|Bullus, Wing Commander Eric||Emmet, Hon. Mrs. Evelyn||Hay, John|
|Heald, Rt. Hon. Sir Lionel||Maddan, Martin||Roots, William|
|Heath, Rt. Hon, Edward||Maginnis, John E.||Ropner, Col. Sir Leonard|
|Hendry, Forbes||Maitland, Sir John||Scott-Hopkins, James|
|Hiley, Joseph||Marples, Rt. Hon. Ernest||Sharples, Richard|
|Hill, Mrs. Eveline (Wythenshawe)||Marshall, Sir Douglas||Shaw, M.|
|Hill, J. E. B. (S. Norfolk)||Marten, Neil||Shepherd, William|
|Hobson, Rt. Hon. Sir John||Matthews, Gordon (Meriden)||Skeet, T. H. H.|
|Hocking, Philip N.||Maude, Angus (Stratford-on-Avon)||Soames, Rt. Hon. Christopher|
|Holland, Philip||Maudling, Rt. Hon. Reginald||Spearman, Sir Alexander|
|Hollingworth, John||Mawby, Ray||Speir, Rupert|
|Holt, Arthur||Maydon, Lt.-Cmdr. S. L. C.||Stainton, Keith|
|Hooson, H. E.||Mills, Stratton||Stanley, Hon. Richard|
|Hope, Rt. Hon. Lord John||Miscampbell, Norman||Stodart, J. A.|
|Hopkins, Alan||Montgomery, Fergus||Stoddart-Scott, Col. Sir Malcolm|
|Hornby, H. P.||More, Jasper (Ludlow)||Storey, Sir Samuel|
|Hornsby-Smith, Rt. Hon. Dame P.||Morgan, William||Studholme, Sir Henry|
|Hughes Hallett, Vice-Admiral John||Morrison, John||Summers, Sir Spencer|
|Hughes-Young, Michael||Molt-Radclyffe, Sir Charles||Tapsell, Peter|
|Hurd, Sir Anthony||Neave, Airey||Taylor, Sir Charles (Eastbourne)|
|Hutchison, Michael Clark||Nicholls, Sir Harmar||Teeling, Sir William|
|Irvine, Bryant Godman (Rye)||Nicholson, Sir Godfrey||Temple, John M.|
|James, David||Noble, Rt. Hon Michael||Thatcher, Mrs. Margaret|
|Jenkins, Robert (Dulwich)||Nugent, Rt. Hon. Sir Richard||Thomas, Sir Leslie (Canterbury)|
|Johnson, Eric (Blackley)||Oakshott, Sir Hendrie||Thomas, Peter (Conway)|
|Jones, Arthur (Northants, S.)||Orr, Capt. L. P. S.||Thompson, Sir Richard (Croydon, S.)|
|Joseph, Rt. Hon. Sir Keith||Orr-Ewing, Sir Ian (Hendon, North)||Thorneycroft, Rt. Hon. Peter|
|Kaberry, Sir Donald||Osborn, John (Hallam)||Thornton-Kemsley, Sir Colin|
|Kerans, Cmdr. J. S.||Osborne, Sir Cyril (Louth)||Tiley, Arthur (Bradford, W.)|
|Kershaw, Anthony||Page, Graham (Crosby)||Tilney, John (Wavertree)|
|Kimball, Marcus||Page, John (Harrow, West)||Touche, Rt. Hon. Sir Gordon|
|Kirk, Peter||Pannell, Norman (Kirkdale)||Turner, Colin|
|Kitson, Timothy||Partridge, E.||Turton, Rt. Hon. R. H.|
|Lagden, Godfrey||Pearson, Frank (Clitheroe)||Tweedsmuir, Lady|
|Lambton, Viscount||Percival, Ian||Van Straubenzee, W. R.|
|Lancaster, Col. C. G.||Peyton, John||Vaughan-Morgan, Rt. Hon. Sir John|
|Leavey, J, A.||Pickthorn, Sir Kenneth||Vickers, Miss Joan|
|Legge-Bourke, Sir Harry||Pike, Miss Mervyn||Wade, Donald|
|Lewis, Kenneth (Rutland)||Pitman, Sir James||Walker, Peter|
|Lilley, F. J. P.||Pitt, Dame Edith||Wall, Patrick|
|Linstead, Sir Hugh||Pounder, Rafton||Ward, Dame Irene|
|Litchfield, Capt. John||Price, David (Eastleigh)||Wells, John (Maidstone)|
|Lloyd, Rt. Hn. Geoffrey (Sut'n C'd field)||Prior-Palmer, Brig. Sir Otho||Whitelaw, William|
|Lloyd, Rt. Hon. Selwyn (Wirral)||Proudfoot, Wilfred||Williams, Dudley (Exeter)|
|Longbottom, Charles||Pym, Francis||Williams, Paul (Sunderland, S.)|
|Longden, Gilbert||Quennell, Miss J. M.||Wills, Sir Gerald (Bridgwater)|
|Loveys, Walter H.||Ramsden, Rt. Hon. James||Wilson, Geoffrey (Truro)|
|Lubbock, Eric||Rawlinson, Rt. Hon. Sir Peter||Wolrige-Gordon, Patrick|
|Lucas, Sir Jocelyn||Redmayne, Rt. Hon. Martin||Wood, Rt. Hon. Richard|
|McAdden, Sir Stephen||Rees, Hugh (Swanson, W.)||Woodhouse, C. M.|
|McLaren, Martin||Rees-Davies, W. R. (Isle of Thanet)||Woodnutt, Mark|
|Maclay, Rt. Hon. John||Renton, Rt. Hon. David||Woollam, John|
|McLean, Sir Fitzroy (Bute & N. Ayrs||Ridsdale, Julian|
|McLean, Neil (Inverness)||Rippon, Rt. Hon. Geoffrey||TELLERS FOR THE AYES:|
|McMaster, Stanley R.||Roberts, Sir Peter (Heeley)||Mr. Batsford and Mr. R. W. Elliott.|
|Macmillan, Maurice (Hallfax)||Robinson, Rt. Hn. Sir R. (B'pool, S.)|
|Abse, Lee||Callaghan, James||Evans, Albert|
|Ainsley, William||Carmichael, Neil||Fernyhough, E.|
|Albu, Austen||Castle, Mrs. Barbara||Finch, Harold|
|Allaun, Frank (Salford, E.)||Chapman, Donald||Fitch, Alan|
|Allen, Scholefield (Crewe)||Collick, Percy||Foley, Maurice|
|Awbery, Stan (Bristol, Central)||Corbet, Mrs. Freda||Foot, Michael (Ebbw Vale)|
|Bacon, Miss Alice||Craddock, George (Bradford, S.)||Forman, J. C.|
|Barnett, Guy||Crosland, Anthony||Fraser, Thomas (Hamilton)|
|Baxter, William (Stirlingshire, W.)||Crossman, R. H. S.||Galpern, Sir Myer|
|Beaney, Alan||Cullen, Mrs. Alice||George, Lady Megan Lloyd (Crmarthn)|
|Bence, Cyril||Dalyell, Tam||Ginsburg, David|
|Benn, Anthony Wedgwood||Darling, George||Gordon Walker, Rt. Hon. P. C.|
|Bennett, J. (Glasgow, Bridgeton)||Davies, G. Elfed (Rhondda, E.)||Gourtay, Harry|
|Benson, Sir George||Davies, Harold (Leek)||Griffiths, David (Rother Valley)|
|Blyton, William||Davies, S. O. (Merthyr)||Griffiths, Rt. Hon. James (Lianelly)|
|Boardman, H.||Deer, George||Griffiths, W. (Exchange)|
|Bowden, Rt. Hn. H. W.(Leics, S.W.)||Delargy, Hugh||Gunter, Ray|
|Bowles, Frank||Dempsey, James||Hale, Leslie (Oldham, W.)|
|Boyden, James||Diamond, John||Hamilton, William (West Fife)|
|Braddock, Mrs. E. M.||Dodds, Norman||Harper, Joseph|
|Bradley, Tom||Doig, peter||Hart, Mrs. Judith|
|Bray, Dr. Jeremy||Driberg, Tom||Hayman, F. H.|
|Brockway, A. Fenner||Duffy, A. E. P. (Colne Valley)||Healey, Denis|
|Broughton, Dr. A. D. D.||Ede, Rt. Hon. C.||Henderson, Rt. Hn. Arthur (Rwly Regis)|
|Butler, Herbert (Hackney, C.)||Edwards, Rt. Hon. Ness (Caerphilly)||Herbison, Miss Margaret|
|Butler, Mrs. Joyce (Wood Green)||Edwards, Walter (Stepney)||Hill, J. (Midlothian)|
|Hilton, A. V.||Marsh, Richard||Short, Edward|
|Holman, Percy||Mason, Roy||Silverman, Julius (Aston)|
|Houghton, Douglas||Mayhew, Christopher||Skeffington, Arthur|
|Howell, Charles A. (Perry Barr)||Mellish, R. J.||Slater, Mrs. Harriet (Stoke, N.)|
|Howell, Denis (Small Heath)||Millan, Bruce||Small, William|
|Howie, W.||Mitchison, G. R.||Smith, Ellis (Stoke, S.)|
|Hoy, James H.||Monslow, Walter||Snow, Julian|
|Hughes, Cledwyn (Anglesey)||Moody, A. S.||Sorensen, R. W.|
|Hughes, Emrys (S. Ayrshire)||Morris, Charles (Openshaw)||Soskice, Rt. Hon. Sir Frank|
|Hughes, Hector (Aberdeen, N.)||Morris, John (Aberavon)||Spriggs, Leslie|
|Hunter, A. E.||Moyle, Arthur||Steele, Thomas|
|Hynd, H. (Accrington)||Neal, Harold||Stewart, Michael (Fulham)|
|Hynd, John (Attercliffe)||Oliver, G. H.||Stones, William|
|Irvine, A. J. (Edge Hill)||O'Makey, B. K.||Strauss, Rt. Hn. G. R. (Vauxhall)|
|Janner, Sir Barnett||Oswald, Thomas||Stross, Sir Barnett (Stoke-on-Trent, C.)|
|Jay, Rt. Hon. Douglas||Owen, Will||Swain, Thomas|
|Jeger, George||Padley, W. E.||Symonds, J. B.|
|Jenkins, Roy (Stechford)||Pannell, Charles (Leeds, W.)||Taverne, D.|
|Jones, Dan (Burnley)||Pargiter, G. A.||Taylor, Bernard (Mansfield)|
|Jones, J. Idwal (Wrexham)||Parker, John||Thomas, George (Cardiff, W.)|
|Jones, T. W. (Merioneth)||Paton, John||Thomas, Iorwerth (Rhondda, W.)|
|Kelley, Richard||Pavitt, Laurence||Thompson, Dr. Alan (Dunfermline)|
|Kenyon, Clifford||Pearson, Arthur (Pontypridd)||Thomson, G. M. (Dundee, E.)|
|King, Dr. Horace||Pentland, Norman||Timmons, John|
|Lawson, George||Popplewett, Ernest||Wainwright, Edwin|
|Ledger, Ron||Prentice, R. E.||Warbey, William|
|Lee, Frederick (Newton)||Probert, Arthur||Watkins, Tudor|
|Lee, Miss Jennie (Cannock)||Pursey, cmdr. Harry||Wells, William (Walsall, N.)|
|Lever, L. M, (Ardwick)||Randall, Harry||White, Mrs. Eirene|
|Lipton, Marcus||Rankin, John||Whitlock, William|
|Mabon, Dr. J. Dickson||Redhead, E. C.||Wigg, George|
|McBride, N.||Rees, Merlyn (Leeds, S)||Wilkins, W. A.|
|McCann, J.||Reid, William||Willley, Frederick|
|MacColl, James||Rhodes, H.||Williams, W. T. (Warrington)|
|MacDermot, Niall||Roberts, Albert (Normanton)||Willis, E. G. (Edinburgh, E.)|
|McInnes, James||Roberts, Goronwy (Caernarvon)||Winterbottom, R. E.|
|Mackie, John (Enfield, East)||Robertson, John (Paisley)||Wood burn, Rt. Hon. A.|
|McLeavy, Frank||Robinson, Kenneth (St. Pancras, N.)||Wyaft, Woodrow|
|Mahon, Simon||Rogers, G. H. R. (Kensington, N.)||Yates, Victor (Ladywood)|
|Manuel, Archie||Ross, William|
|Mapp, Charles||Royle, Charles (Salford, West)||TELLERS FOR THE NOES:|
|Mr. Ifor Davies and Mr. Grey.|
§ Mr. Alan Brown (Tottenham)
I beg to move Amendment No. 53, in page 4, line 16, to leave out from "dealer" to end of line 18.
The suppliers of goods, whether wholesalers or manufacturers, may reasonably wish to exercise a choice of retail outlets for their goods, as in the case of an agency, or to limit the number of such outlets within a particular area or district. The Bill leaves the freedom of the suppliers in these respects unfettered where dealers are not price-cutters, but by reason of the provisions in Clause 4(4,a) if a supplier were to refuse a price cutter he would be exposed to a serious risk of legal proceedings in which he would have to prove that he had not withheld supplies on the ground of actual or anticipated price cutting. Such a provision is likely to constrain a supplier from refusing a price cutter even where he would have refused in similar circumstances a dealer who did not cut his prices. This may well be held to put a premium on price cutting.
§ Sir Hugh Linstead (Putney)
I should like to ask my right hon. Friend a ques- 1164 tion about subsection (4,a) and the reason for its inclusion in the Clause. I can understand why the plaintiff in an action, before the onus shifts, should be required to prove that supplies of goods have been withheld and possibly that before they were withheld the supplier had been doing business with the dealer. It is reasonable that the dealer should also have to show that the supplier knew that the dealer had either cut prices or was threatening to do so, but the words which the Amendment seeks to leave out seem superficially to be surplusage. I cannot see what they add to the Clause and why the Clause should not function perfectly well if paragraph (a) were not there at all.
It may be that the first two lines of paragraph (a) are needed to cover the case of a dealer in order to differentiate between the dealer who is in business for the first time and the dealer who has been doing business regularly with the supplier. I can possibly understand all these grounds of need for the first two lines of paragraph (a), but I cannot see what the second two lines add to the 1165 Clause. I should be most grateful for an indication from my right hon. Friend of the use of these words.
§ Mr. R. H. Turton (Thirsk and Malton)
It may well be that the words that we are proposing to leave out have no malevolent intent, but merely deal with the case later on where there are new dealers who really are business customers of the supplier. The great danger is that the words are so widely drawn now that it may well make it difficult for a dealer who is a non-price cutter. He may be put at a disadvantage compared with the dealer who is a price cutter.
Through the pressure of the onus to this Clause a price cutting dealer may receive supplies from a supplier whereas a small dealer who has no price-cutting reputation may be refused supplies on other grounds. That is the great danger. To take the case of a brewery company which supplies to certain licensed houses in a district, under the words after "or" in the subsection it might well be that if the company did not agree to supply other licensed houses which were not tied to it, the onus would operate against the company. As we decided on the last Amendment, I am all in favour of the onus being placed firmly on the supplier in cases where there had been previous dealings between the supplier and the dealer. However, unless my right hon. Friend has some pretty good reason for it, I do not think that it is quite fair to put the onus on the supplier where there has been no previous dealing between the supplier and the dealer.
I agree that it is a small point, but I think that it is important, otherwise there is a danger, as my hon. Friend the Member for Tottenham (Mr. A. Brown) said, that this could be used for purposes of blackmail by a rather disreputable price-cutting firm. That is the danger I foresee. I would ask my right hon. Friend to consider very carefully whether he cannot substitute some other form of words, if he has other circumstances in mind to those I envisage where there has been no business connection before between a supplier and a dealer. That is what I want to see safeguarded.
§ Mr. Heath
I listened very carefully to what my hon. Friend the Member for Tottenham (Mr. A. Brown) said in moving the Amendment. Perhaps I could deal first with the question put to me 1166 by my right hon. Friend the Member for Thirsk and Malton (Mr. Turton) and my hon. Friend the Member for Putney (Sir H. Linstead), who have asked what is the purpose of the words in the second part of subsection (4,a). This is to cover the position of a person with whom the supplier had been doing business at some previous stage but had not recently been doing business, or the case of a new dealer who has come to the supplier.
It is important that we should deal with these two cases. The Amendment would remove the presumption embodied in subsection (4) of the Clause, and it would not be available in the two cases that I have mentioned. We would have it for the person with whom the supplier is dealing at the moment, but by this Amendment it would not be available in the case of a person with whom he had previously done business but was not doing so at the moment, or in the ca se of a new dealer who came to him. It is important to have the presumption available in those cases as well as in the general case where he is doing business at the moment.
My hon. Friend the Member for Tottenham said that it would put the supplier in the position of supplying the dealer where he would have refused supplies on other grounds. I think that was the point put by my hon. Friend. He said that it would lead to a man giving supplies to a man selling below the recommended price even where they would have been refused on other grounds. There would be no justification for that under the Bill. Fundamentally the question which has to be asked is, "Would he have refused if the dealer had not been selling below the recommended price?"
As in the case quoted by my hon. Friend, the answer would have been "Yes". He would have refused if the man had not been selling below the recommenced price, and in this case it fully justifies him in refusing even if the man is selling below the recommended price. I think that deals with the point raised by my hon. Friend that in the case of a dealer with whom he has not been recently doing business or in the case of a new dealer he would be justified in withholding supplies for the reasons that my hon. Friend has suggested might be there.
1167 In these circumstances, I hope that my right hon. and hon. Friends will not think it necessary to press the Amendment. I think that it is necessary to keep the presumption in this case and I hope that I have given the explanation why we feel that is necessary.
§ Mr. Jay
I am not sure that the Minister is quite right in his interpretation of the effect of the words from line 16 onwardssupplying goods of the same descriptionand so forth. The Minister said that they were to cover two cases. It seems to me that they cover three cases. There is an additional case which the Minister did not mention. He said that the words were intended to cover the two cases of a dealer with whom the supplier had done business before, or a new dealer who had not been in business with the dealer before.
It covers those two cases, but it also covers the more important and normal case of the dealer with whom the supplier has not done business but who has been in business for a definite period. That is to say, it covers any dealer, old or new, with whom the supplier has not been in business. This is precisely why I am entirely in sympathy with the effect of this Amendment. I am not absolutely sure that the supporters of it fully understand its effect, and so I do not know whether I sympathise with their intentions, but I do sympathise with what I believe to be the effect of the Amendment.
I think that with these words the Secretary of State has pushed his Bill to extremes, because not only does he propose to compel the supplier to trade with a dealer with whom he does not wish to trade, not only is the onus of proof put on him about his motives, but now the Bill goes beyond that and compels a supplier in these circumstances, unless he can prove the contrary, to trade with somebody whom he does not wish to supply and with whom he has never done business even though that dealer is a new dealer who has not been in business before. That seems to us to be the plain meaning of these words. If it is not, we should like to have it explained why it is not. This really does seem to be going too far.
1168 I put it to the Secretary of State. In the normal case where, after all, the manufacturer or wholesaler has not enough goods, has not sufficient supplies, to supply every retailer in the country, or every retailer who comes to ask him for supplies—for the facts of supply and demand may be such, and usually are, that a supplier cannot supply everybody—if we leave the Bill in this situation any retailer who wishes can come along and can demand supplies even though he has never done business with this manufacturer before, and he can say, what is more, "I mean to reduce the prices below your recommended prices." Then the wholesaler says, "I do not want to do business with you and there is no reason why I should." He withholds supplies, and there is no question whatever that if he withholds supplies we reach the extraordinary situation that he is under a legal obligation to furnish supplies which he has not got to this retailer, unless he goes through an elaborate process to prove something very difficult to prove about his motives. Surely that is what the Bill means. If either the Secretary of State or the Attorney-General can show that these words do not mean that, we shall be very glad to be enlightened.
§ Mr. Heath
I do not think that the right hon. Gentleman has got this quite right. I think he got it right when dealing with the last Amendment, but now he is saying that a man is compelled to supply even though he has not got the goods to supply, or when his goods are required for his normal outlets. There is nothing in the Bill which justifies this; nothing whatever. The right hon. Gentleman repeatedly said that, and is saying more than that, and on the last Amendment interrupted me and said he did not mean what he said, but there is nothing in the Bill which compels a man to supply if he does not wish to for other reasons which are perfectly genuine reasons—that he has already got his pattern of retailers, or that he does not like a man's shop, perhaps because it is dirty or is not equipped to deal with his particular products, or because he has not got the stocks to supply, or any other such reasons. There is nothing in the Bill to compel supply in those circumstances; absolutely nothing.
§ Mr. Jay
There is nothing between us on that. If, of course, he can prove he has some reason, then he is not compelled to supply in those circumstances, but unless he can prove it he is under a legal obligation. What I want the right hon. Gentleman to answer is this. I agree that these words would cover not merely the case he mentioned, but they also cover the case of a dealer with whom the supplier has never done business, and a dealer who is not a new dealer and who has been in business for some considerable time.
§ Mr. Geoffrey Hirst (Shipley)
I apologise for my voice. If nothing else will silence me, a cold may even do so yet. But I want to say a word about this because I am rather in line with what the right hon. Member for Battersea, North (Mr. Jay) said.
Nobody can be compelled to supply goods he has not got. We all know that one. The point is that what is objectionable here, and why we are trying to delete these words, is that they would make the supplier guilty of contravening the Bill merely because he declined to supply a dealer with whom he has never done any business at all—for various reasons: maybe he deals with only one or two dealers, or, perhaps, he does not like the dealer's face, as somebody said in an earlier debate.
However that may be, this is an inalienable right of the supplier. It is monstrous that it should be written into the Bill that a person unwilling to supply goods should be guilty of a misdemeanour unless he proves himself innocent. That is the point. It has not been cleared up. Nothing which my right hon. Friend has said has cleared it up one iota. If we had been able to come to a sensible decision on the last Amendment we should not now be spending such a lot of time of the Committee on this one, and this one would not have arisen.
1170 This is an important point. Of course, I am grateful for the concession about cash and credit, but we are getting into a position which I think is objectionable, that it should be written into the Bill that the onus of proof should fall on the supplier for quite different reasons altogether, and that he should have to go to all the trouble of doing that. Maybe my right hon. Friend argues that in the ordinary course of business a lot of people write letters to a lot of other people, but the fact of the matter is that it is wrong—and that is what we are grumbling about—wrong that this provision should be here, and it has got to be fought inch by inch, unless one gets some understanding of what we regard as the inalienable right of the supplier to decline to supply anyone whom he does not think fit. If he does not supply someone whom he does not think fit, he should be held guilty by withholding goods. That is the issue, not this other rather narrower issue which we have been discussing for the last quarter of an hour.
§ Mr. Winterbottom
I follow the point of the hon. Member for Shipley (Mr. Hirst) and I will put what I think are rather practical problems. Suppose there is a man who is cutting prices in a shop and as a result of cutting prices in that district he commandeers most of the trade. I am not talking of manufacturers. There seems to be difficulty amongst hon. Members in distinguishing between a manufacturer and a wholesaler. In many cases there is more than one wholesaler to deal with, even in one class of goods. This man would get supplies from the wholesaler to satisfy the growing trade he has got as a result of price cutting.
The definition of the wholesaler who is supplying him is quite clear; the right hon. Gentleman's definition is clear—if he is accused of withholding supplies on the question of resale price maintenance. But suppose that the man who is price cutting goes to another wholesaler with whom he has not had any dealings before and tries to become a new customer. If he wants specified goods to cover his increased trade as a result of price cutting, does the right hon. Gentleman think he is going to go to the wholesaler for just those goods?
There are few retailers who go to a wholesaler for just one class of goods 1171 alone. They usually go for the whole gamut of goods which they sell in their shops, unless they have specific agreements with manufacturers. So we should have the situation of a person refusing goods specially covered because of the price cutting indulged in. I want to know whether that would mean that he would be guilty because he is a new customer.
The second question is one I have raised before. Suppose there is a stationer who wants to start selling newspapers. In some parts of the country to get into the newspaper selling business has been a most difficult proposition. Indeed, it has been a closed preserve. To get a box number was almost impossible unless one was prepared to pay tremendous prices for goodwill. I take the point of the right hon. Gentleman about blackmail. If immediately the Bill becomes law there is a stationer who wants to become a newsagent and goes to a newsagents' supplier in the locality and says, "I want newspapers", then even though the refusal might stand a test before the Restrictive Practices Court, nevertheless rather than face all the difficulty which surrounds it, the supplier may be frightened by the possibility of blackmail, because the retailer may say, "I want other supplies from you."
The Amendment is right. The moment we start talking about new customers, we have problems. The right hon. Gentleman is to meet the situation about cash and credit, but there are 101 things in the world of distribution which are as awkward as credit and in respect of which suppliers do not want to supply new customers as distinct from old customers. It is wrong that they should be forced to do so.
For example, a retailer may wish to sell newspapers. He may say to the supplier, "I want to send my son, who is old enough to deliver newspapers, to the nearest factory and to sell newspapers there, despite the fact that there are two or three newspaper shops in the district. I buy many other things from you, and if you do not supply me with newspapers I shall take you to the Restrictive Practices Court and charge you with having refused to supply me because I sell certain things cheaper than other people and you call me a price 1172 cutter". That could happen in thousands of cases up and down the country with new clients.
The hon. Member for Shipley (Mr. Hirst) is therefore right. On this question of new clients the right hon. Gentleman should give an earnest of his good intentions by not complicating what is already a very complicated business in wholesaling. There ought to be a concession in respect of new clients. If I were a wholesaler and felt that because of indirect pressure—and the indirect pressure is more potent than the direct pressure—I was being forced to supply somebody I did not want to supply, then I should curse the right hon. Gentleman's name from now to doomsday; and that is how some people will feel about him unless he concedes this point.
§ Mr. William Shepherd (Cheadle)
completely fail to understand how hon. Members on both sides of the Committee have anxieties about suppliers being forced under the Clause to supply people they do not wish to supply. In the first place, the average small retailer would be in no position to embark upon the processes necessary to establish his rights. In the main, he would be at a very serious disadvantage compared with the larger manufacturer, and the latter would be the only person seeking to enforce the provision. The retailer starts at a distinct disadvantage.
Surely the danger under the Clause is that suppliers will get away with it because they can pretend that they are stopping supplies for reasons other than the right reasons. This is the most logical possibility. If I want to stop supplies to Mr. X because he is cutting the prices of my goods, I can find half a dozen reasons which will have some sort of substance in court to show that I stopped the supplies for those reasons and not because of price-cutting.
I might say that I cannot deliver to his district, that I already have my distribution points there, that I do not like the service which the man proposes to give, that I do not like his shop or that I have a number of agents or retailers in the area. There could be a dozen reasons which I could bring before the Court which would justify an action which I was taking because I did not want to supply this man because he was a price cutter.
1173 This is the genuine anxiety to which the Committee ought to address its attention—the weakness of enforcement, not the reverse. I do not understand the anxiety of those who imagine that this Clause is too severe.
§ Mr. Turton
May I answer my hon. Friend the Member for Cheadle (Mr. Shepherd)? I have exactly his fear. I do not think that it is the small retailer who will have an advantage; it is the large retailer, the chain store, the price-cutting firm, which will have this chance of blackmailing.
I agree entirely with my right hon. Friend that he has a good case where there have been previous dealings between a particular supplier and a particular dealer, but I do not think that it is fair to put the onus on these suppliers in the case of a new dealer. If my right hon. Friend would think over this matter before Report, he might consider whether a change in the wording would not cover the point satisfactorily and would prevent the danger, which he may think unreal but which others, who have knowledge of the trade and know the power of the large chain store as opposed to the small retailer, regard as very real. In paragraph (a) he confines it todown to the time when supplies were so withheld the supplier was doing business with the retailer…I should have thought that he could enlarge that considerably. If he did, and if he left out the alternative, it would he helpful. This is a real danger, because I believe that the small retailer will be at a great disadvantage as opposed to the chain stores and the large price-cutting enterprises. I hope that my right hon. Friend will look at this again before Report.
§ 7.15 p.m.
§ Mr. Heath
I hope that hon. Members will not exaggerate the anxieties which they may have about this aspect of the Bill. The hon. Member for Sheffield, Brightside (Mr. Winterbottom) expressed great anxiety that there would be blackmail of this kind and that hundreds of thousands of people up and down the country would be affected. I do not believe that to be the case, and I agree very much with what was said by my hon. Friend the Member for Cheadle 1174 (Mr. Shepherd) on this aspect. The small retailer will have a retailers' association which can support him, or he can go to the Board of Trade for the Crown to take action, and he is fully backed in any action which may be required under the Clause. Although it may be said that the large firm has resources with which to take action against the supplier, I do not think that the small retailer is at any disadvantage in this respect.
What is very important, I do not believe that either the large or the small retailer—through his retailers' association—or the Crown will give other than the most careful consideration to whether actions of this kind should be brought without first finding out the circumstances of the dealer. The hon. Member for Brightside mentioned, particularly, the sale of newspapers. The system of franchise in newspapers is well known. Everybody knows that certain people have rights in a certain town to sell newspapers. It is a well-established position. Anyone who thought of trying to blackmail or to bring any action would think very carefully before proposing action in such a case when the system is well established.
This system has been much criticised because new people find it very difficult to obtain a franchise. This is the other aspect of the balance. I should have thought that the Committee agreed that it is not right that a newcomer to the trade should be unable to get supplies from anywhere, because the balance would then be in the wrong direction and the onus would be placed entirely on him. This aspect must be taken into account in the circumstances of subsection (4).
Because of this, I believe that fundamentally it is right to keep the balance like this. As my right hon. Friend the Member for Thirsk and Malton (Mr. Turton) said, this applies where previously the man had been in business dealing with the supplier, although he was not dealing with him at the moment, but it also applies to new dealers. I hope my tight hon. Friend recognises that we must keep a balance and that there is the question of fairness to the new man coming into a trade when the supplier can withhold supplies for a large number of reasons, such as those 1175 given by my hon. Friend the Member for Cheadle. It would not be right in our view for supplies to be withheld from him on the grounds that he is selling below the price. I hope that the Committee will accept that view.
§ Mr. Winterbottom
I do not accept the point put by the hon. Member for Cheadle (Mr. Shepherd). The philosophy of the successful "dodge" does not appeal to me quite so much. In newspaper retailing, the creation of a new entry in the sale of newspapers is common practice because of the goodwill involved. I will give an example of this.
I know of a new estate of 600 houses being built. It will have its own shopping centre, with one newsagent's shop. Whoever gets that shop will be very fortunate because, in the very first week that he starts to sell newspapers, however few, the goodwill value of the shop will rise tremendously because of the potentialities of delivery of newspapers. In some districts men go to inordinate lengths to capitalise on the goodwill value. This is an important factor throughout the trade.
§ Sir Patrick Bishop (Harrow, Central)
Whatever may be thought of arrangements through newspaper franchises, they have never included resale price maintenance. There has never been any form of r.p.m. in the sale of newspapers.
§ nothing to stop a newsagent selling a newspaper at less than the stipulated price on the cover.
§ Mr. W. Wells
The Amendment has taken a rather curious course. I do not think that the hon. Member for Tottenham (Mr. A. Brown) appreciated its significance, which was obscure until the right hon. Member for Thirsk and Malton (Mr. Turton) spoke, followed by my right hon. Friend the Member for Battersea, North (Mr. Jay). We regard the explanation given by the Secretary of State as quite unsatisfactory.
It is, of course, right that the choice of a new entrant into a business should be preserved and that precautions be taken to that effect. If that were all that the Clause did, we should be in favour of it. But that is far from being what it does. As has been said, it opens the door to blackmail by a large organisation of particular interests to use the machinery of the Clause in order to put pressure on a supplier either to supply its members or else be brought into court, with the onus of proof weighted against him, our previous Amendment having been rejected. In these circumstances, I hope that my right hon. and hon. Friends will divide in favour of the Amendment.
§ Question put,That the words proposed to be left out stand part of the Clause:—
§ The Committee divided: Ayes 228, Noes 182.1179
|Division No. 76.]||AYES||[7.25 p.m.|
|Agnew, Sir Peter||Bromley-Davenport, Lt.-Col. Sir Walter||Dalkeith, Earl of|
|Allason, James||Browne, Percy (Torrington)||Dance, James|
|Amery, Rt. Hon. Julian||Buck, Antony||Deedes, Rt. Hon. W. F.|
|Ashton, Sir Hubert||Bullard, Denys||Digby, Simon Wingfield|
|Atkins, Humphrey||Bullus, Wing Commander Eric||Donaldson, Cmdr. C. E. M.|
|Awdry, Daniel (Chippenham)||Butcher, Sir Herbert||Doughty, Charles|
|Barber, Rt. Hon. Anthony||Butler, Rt. Hn. R. A.(Saffron Walden)||Douglas-Home, Rt. Hon, Sir Alec|
|Barlow, Sir John||Campbell, Gordon||Drayson, G. B.|
|Barter, John||Carr, Rt. Hon. Robert (Mitcham)||du Cann, Edward|
|Batsford, Brian||Cary, Sir Robert||Eden, Sir John|
|Beamish, Col. Sir Tufton||Channon, H. P. G.||Elliot, Capt. Walter (Carshalton)|
|Berkeley, Humphry||Chataway, Christopher||Elliott, R. W. (Newo'tle-upon-Tyne, N.)|
|Bevins, Rt. Hon. Reginald||Chichester-Clark, R.||Emmet, Hon. Mrs. Evelyn|
|Bidgood, John C.||Clark, William (Nottingham, S.)||Erroll, Rt. Hon. F. J.|
|Biffen, John||Cleaver, Leonard||Farey-Jones, F W.|
|Biggs-Davison, John||Cooper, A. E.||Farr, John|
|Bingham, R. M.||Cooper-Key, Sir Neill||Fell, Anthony|
|Bishop, Sir Patrick||Corfield, F. V.||Finlay, Graeme|
|Black, Sir Cyril||Coulson, Michael||Fisher, Nigel|
|Bossom, Hon. Clive||Courteney, Cdr. Anthony||Fletcher-Cooke, Charles|
|Bourne-Arton, A.||Craddock, Sir Beresford (Speithorne)||Fraser, Rt. Hn. Hugh (Stafford & Stone)|
|Bowen, Roderic (Cardigan)||Critchley, Julian||Freeth, Denzil|
|Box, Donald||Crowder, F. P.||Gammans, Lady|
|Boyd-Carpenter, Rt. Hon. John||Cunningham, Sir Knox||Gardner, Edward|
|Boyle, Rt. Hon. Sir Edward||Curran, Charles||Gibson-Watt, David|
|Braine, Bernard||Currie, G. B. H.||Gilmour, Ian (Norfolk, Central)|
|Gilmour, Sir, John (East Fife)||Lubbock, Eric||Ridsdale, Julian|
|Glover, Sir Douglas||McAdden, Sir Stephen||Rippon, Rt. Hon. Geoffrey|
|Glyn, Dr. Alan (Clapham)||McLaren, Martin||Roberts, Sir Peter (Heeley)|
|Goodhew, Victor||Maclay, Rt. Hon. John||Roots, William|
|Gower, Raymond||Maclean, SirFitzroy (Bute & N. Ayrs)||Ropner, Col. Sir Leonard|
|Grant-Ferrism, R.||MacLeod, Sir John (Ross & Cromarty)||Scott-Hopkins, James|
|Green, Alan||McMaster, Stanley R.||Sharples, Richard|
|Grimond, Rt. Hon. J.||Macmillan, Maurice (Halifax)||Shaw, M.|
|Grosvenor, Lord Robert||Maddan, Martin||Shopherd, William|
|Hall, John (Wycombe)||Maginnis, John E.||Skeet, T. H. H.|
|Hamilton, Michael (Wellingborough)||Maitland, Sir John||Soames, Rt. Hon. Christopher|
|Harris, Frederic (Croydon, N.W.)||Marples, Rt. Hon. Ernest||Spearman, Sir Alexander|
|Harrison, Brian (Maldon)||Marshall, Sir Douglas||Speir, Rupert|
|Harrison, Col. Sir Harwood (Eye)||Marten, Neill||Stainton, Keith|
|Harvey, John (Walthamstow, E.)||Matthews, Gordon (Meriden)||Stanley, Hon. Richard|
|Hay, John||Maude, Angus (Stratford-on-Avon)||Stodart, J. A.|
|Heald, Rt. Hon. Sir Lionel||Mawby, Ray||Stodart-Scott, Col. Sir Malcolm|
|Heath, Rt. Hon. Edward||Maydon, Lt.-Cdr. S. L. C.||Storey, Sir Samuel|
|Hobson, Rt. Hon. Sir John||Mills, Stratton||Studholme, Sir Henry|
|Holland, Philip||Miscampbell, Norman||Summers, Sir Spencer|
|Hollingworth, John||Montgomery, Fergus||Tapsell, Peter|
|Holt, Arthur||More, Jasper (Ludlow)||Taylor, Sir Charles (Eastbourne)|
|Hooson, H. E.||Morgan, William||Taylor, Edwin (Bolton, E.)|
|Hopkins, Alan||Mott-Radclyffe, Sir Charles||Temple, John M.|
|Hornby, R. P.||Neave, Airey||Thatcher, Mrs. Margaret|
|Hornsby-Smith, Rt. Hon. Dame P.||Nicholls, Sir Harmar||Thomas, Sir Leslie (Canterbury)|
|Hughes Hallett, Vice-Admiral John||Nicholson, Sir Godfrey||Thompson, Sir Richard (Croydon, S.)|
|Hughes-Young, Michael||Noble, Rt. Hon. Michael||Thornton-Kemsley, Sir Colin|
|Hurd, Sir Anthony||Nugent, Rt. Hon. Sir Richard||Tiley, Arthur (Bradford, W.)|
|Iremonger, T. L.||Oakshott, Sir Hendrie||Tilney, John (Wavertree)|
|Irvine, Bryant Godman (Rye)||Osborn, John (Hallam)||Touche, Rt. Hon. Sir Gordon|
|Johnson, Eric (Blackley)||Page, John (Harrow, West)||Turner, Colin|
|Jones, Arthur (Northants, S.)||Pannell, Norman (Kirkdale)||Tweedsmuir, Lady|
|Joseph, Rt. Hon. Sir Keith||Partridge, E.||Van Straubenzee, W. R.|
|Kaberry, Sir Donald||Pearson, Frank (Clitheroe)||Vaughan-Morgan, Rt. Hon. Sir John|
|Kerans, Cdr. J. S.||Percival, Ian||Vickers, Miss Joan|
|Kershaw, Anthony||Peyton, John||Wade, Donald|
|Kimball, Marcus||Pickthorn, Sir Kenneth||Wall, Patrick|
|Kirk, Peter||Pike, Miss Mervyn||Ward, Dame Irene|
|Kitson, Timothy||Pitman, Sir James||Wells, John (Maidstone)|
|Lagden, Godfrey||Pitt, Dame Edith||Williams, Dudley (Exeter)|
|Lambton, Viscount||Pounder, Rafton||Williams, Paul (Sunderland, S.)|
|Leavey, J. A.||Price, David (Eastleigh)||Wills, Sir Gerald (Bridgwater)|
|Legge-Bourke, Sir Harry||Prior-Palmer, Brig. Sir Otho||Wilson, Geoffrey (Truro)|
|Lewis, Kenneth (Rutland)||Proudfoot, Wilfred||Wolrige-Gordon, Patrick|
|Lilley, F. J. P.||Pym, Francis||Wood, Rt. Hon. Richard|
|Litchfield, Capt. John||Quennell, Miss J. M.||Woodhouse, C. M.|
|Lloyd, Rt. Hon. Selwyn (Wirral)||Ramsden, Rt. Hon. James||Woodnutt, Mark|
|Longbottom, Charles||Rawlinson, Rt. Hon. Sir Peter|
|Longden, Gilbert||Redmayne, Rt. Hon. Martin||TELLERS FOR THE AYES:|
|Loveys, Walter H.||Renton, Rt. Hon. David||Mr. J. E. B. Hill and|
|Mr. Hugh Rees.|
|Abse, Leo||Crosland, Anthony||Gordon Walker, Rt. Hon. P. C.|
|Ainsley, William||Crossman, R. H. S.||Gourlay, Harry|
|Albu, Austen||Cullen, Mrs. Alice||Griffiths, David (Rother Valley)|
|Allaun, Frank (Salford, E.)||Daiyell, Tam||Griffiths, Rt. Hon. James (Lianelly)|
|Allen, Scholefield (Crewe)||Darling, George||Griffiths, W. (Exchange)|
|Awbery, Stan (Bristol, Central)||Davies, G. Elfed (Rhondda, E.)||Hale, Leslie (Oldham, W.)|
|Bacon, Miss Alice||Davies, Harold (Leek)||Hamilton, William (West Fife)|
|Barnett, Guy||Davies, Ifor (Gower)||Harper, Joseph|
|Baxter, William (Stirlingshire, W.)||Davies, S. O. (Merthyr)||Hart, Mrs. Judith|
|Beaney, Alan||Deer, George||Hayman, F. H.|
|Bence, Cyril||Delargy, Hugh||Hill, J. (Midlothian)|
|Benn, Anthony Wedgwood||Dempsey, James||Hilton, A. V.|
|Bennett, J. (Glasgow, Bridgeton)||Diamond, John||Holman, Percy|
|Benson, Sir George||Dodds, Norman||Houghton, Douglas|
|Blyton, William||Dolg, Peter||Howell, Charles A. (Perry Barr)|
|Boardman, H.||Duffy, A. E. P. (Colne Valley)||Howell, Denis (Small Heath)|
|Bowden, Rt. Hn. H. W.(Leics, S.W.)||Ede, Rt. Hon. C.||Howie, W.|
|Bowies, Frank||Edwards, Rt. Hon. Ness (Caerphilly)||Hoy, James H.|
|Boyden, James||Edwards, Walter (Stepney)||Hughes, Cledwyn (Anglesey)|
|Braddock, Mrs. E. M.||Evans, Albert||Hughes, Emrys (S. Ayrshire)|
|Bradley, Tom||Fernyhough, E.||Hughes, Hector (Aberdeen, N.)|
|Bray, Dr. Jeremy||Finch, Harold||Hunter, A. E.|
|Brockway, A. Fenner||Fitch, Alan||Hynd, H. (Accrington)|
|Butler, Herbert (Hackney, C.)||Foley, Maurice||Hynd, John (Atterclilfe)|
|Butler, Mrs. Joyce (Wood Green)||Foot, Michael (Ebbw Vale)||Irvine, A. J. (Edge Hill)|
|Carmichael, Neil||Forman, J. C.||Janner, Sir Barnett|
|Chapman, Donald||Fraser, Thomas (Hamilton)||Jay, Rt. Hon. Douglas|
|Collick, Percy||Galpern, Sir Myer||Jeger, George|
|Corbet, Mrs. Freda||George, Lady Megan Lloyd (Crmrthn)||Jones, Dan (Burnley)|
|Craddock, George (Bradford, S.)||Ginsburg, David||Jones, J. Idwai (Wrexham)|
|Jones, T. W. (Merioneth)||O'Malley, B. K.||Spriggs, Leslie|
|Kelley, Richard||Oswald, Thomas||Steele, Thomas|
|Kenyon, Clifford||Owen, Will||Stewart, Michael (Fulham)|
|King, Dr. Horace||Padley, W. E.||Stones, William|
|Lawson, George||Pannell, Charles (Leeds, W.)||Strauss, Rt. Hon. G. R. (Vauxhall)|
|Ledger, Ron||Pargiter, G. A.||Stross, Sir Barnett (Stoke-on-Trent, C.)|
|Lee, Frederick (Newton)||Parker, John||Swain, Thomas|
|Lee, Miss Jennie (Cannock)||Paton, John||Symonds, J. B.|
|Lever, L. M. (Ardwick)||Pavitt, Laurence||Taverne, D.|
|Lipton, Marcus||Pearson, Arthur (Pontypridd)||Taylor, Bernard (Mansfield)|
|Mabon, Dr. J. Dickson||Pentland, Norman||Thomas, Iorwerth (Rhondda, W.)|
|McBride, N.||Popplewell, Ernest||Thompson, Dr. Alan (Dunfermline)|
|McCann, J.||Prentice, R. E.||Thomson, G. M. (Dundee, E.)|
|MacColl, James||Probert, Arthur||Timmons, John|
|MacDermot. Niall||Pursey, Cmdr. Harry||Wainwright, Edwin|
|McInnes, James||Randall, Harry||Warbey, William|
|Mackie, John (Enfield, East)||Rankin, John||Watkins, Tudor|
|McLeavy, Frank||Redhead, E. C.||Wells, William (Walsall, N.)|
|Mahon, Simon||Rees, Merlyn (Leeds, S.)||Whitlock, William|
|Manuel, Archie||Rhodes, H.||Wigg, George|
|Mapp, Charles||Roberts, Albert (Normanton)||Wilkins, W. A.|
|Mason, Roy||Roberts, Goronwy (Caernarvon)||Willey, Frederick|
|Mellish, R. J.||Robertson, John (Paisley)||Williams, W. T. (Warrington)|
|Millan, Bruce||Rogers, G. H. R. (Kensington, N.)||Willis, E. G. (Edinburgh, E.)|
|Mitchison, G. R.||Rose, William||Winterbottom, R. E.|
|Monslow, G. R.||Short, Edward||Woodburn, Rt. Hon. A.|
|Moody, A. S.||Skeffington, Arthur||Wyatt, Woodrow|
|Morris, Charles (Openshaw)||Slater, Mrs. Harriet (Stoke, N.)||Yates, Victor (Ladywood)|
|Morris, John (Aberavon)||Small, William|
|Moyle, Arthur||Smith, Ellis (Stoke, S.)||TELLERS FOR THE NOES:|
|Neal, Harold||Snow, Julian||Dr. Broughton and Mr. Grey|
|Oliver, G. H.||Soskice, Rt. Hon. Sir Frank|
§ Question proposed, That the Clause stand part of the Bill.
§ Mr. Jay
I am delighted to see that on this occasion we are to have the advice of the hon. and gallant Member for Knutsford (Sir W. Bromley-Davenport). We have been waiting to hear his views throughout the debates on the Bill, and now we are to have them.
Apart from that, I want only to say very briefly that we on this side of the Committee are not satisfied with the Clause as it stands. It lays the onus of proof on the supplier on the essential point if he is to be relieved of the obligation of supplying various retailers unwillingly. We are unsatisfied on two points—I do not think that the right hon. Gentleman would disagree with that way of phrasing it—arising out of the Secretary of State's speeches this afternoon. First, the right hon. Gentleman has made an extraordinary distinction between the withholding of supplies on the ground of the credit terms that the supplier is willing to give in his opinion of the dealer and withholding supplies because the manufacturer takes some other view of the dealer's reputability. We do not think that that case has been made out.
Secondly, we are equally dissatisfied with the Government's attitude on the last Amendment, which requires suppliers in certain cases to supply goods to 1180 dealers with whom they have not previously done business. I think that the right hon. Gentleman would agree with that way of phrasing it. We must return to both these topics on Report, and as we do not support the Clause in its present form, I shall advise my right hon. and hon. Friends to vote against it.
§ Mr. Graham Page
My questions are directed to my right hon. and learned Friend the Attorney-General and are connected with subsections (2) and (3) and deal with when litigation may arise. Subsection (2) is concerned with the obligation to comply with the said provisions". One finds from subsection (1) that the "said provisions" are all the Bill's foregoing provisions. Therefore, any breach of Clauses 1, 2 or 3 would come within the possibility of litigation under Clause 4(2) and it is litigation byany person who may be affected by a contravention".Does that mean any person who is affected by the contravention of Clauses 1, 2 or 3, such as a member of the public who is affected by the wrongful maintenance of resale prices?
"Any person affected" in this context must include any member of the public, although that seems to be going extremely wide. To cut it down to a somewhat narrower compass, could it be anyone other than the deprived dealer? A dealer may be a wholesaler 1181 or retailer. If the manufacturer has deprived the wholesaler of goods for wrong reasons, can the retailer who has been deprived by the fact that the manufacturer has deprived the wholesaler come into the action?
Can he begin the action? The phrase "any person" goes a very long way and may bring in anyone who is in any way affected. Why the word "affected"? Why not "suffered damage"? He could have been favourably affected. It must surely mean anyone who has suffered damage by contravention of the Bill and, if so, why not say so? The word "affected" brings in many people who might able to bring an action.
On the subject of costs, it must be clear from subsection (2) that if the action is between two private individuals, for example, if a retailer is bringing an action against a wholesaler for wrongfully withholding goods from him, it is just a private action and the ordinary rules as to costs would apply in the discretion of the Court and the successful litigant would expect to be awarded his costs. But does that apply under subsection (3) when the Crown brings an action? Is there any restriction on a court's discretion in awarding costs against the Crown if the Crown is unsuccessful in the litigation?
§ Mr. Hale
I did not intervene when the right hon. Gentleman replied to some of my earlier observations on this Clause, but I want to take this opportunity briefly to reply to one or two of his points.
The right hon. Gentleman has throughout these debates replied to the debates with admirable good humour, in circumstances in which good humour is admirable and is to be respected. However, I thought that at one stage of his argument he rather departed from the high standard that he had set himself. He said that I was probably opposed to legislation in principle. I am. The right hon. Gentleman said that I regard litigation as a dreadful prospect for both parties. I do.
For over 30 years, as a solicitor, I consistently discouraged my clients from resorting to litigation, and I believe that every solicitor supports the view that litigation should be discouraged, because so often both parties lose. I think that solicitors try to discourage their clients 1182 from resorting to litigation, whether it appears that a matter of principle is involved or not, for very often what clients consider to be matters of principle are not so regarded by their legal advisers.
I would discourage litigation, just as I would discourage legislation, and I have a touch of philosophical anarchism about it. But when the right hon. Gentleman says that it I am relating the views of hon. Members about the Bill to his views about the Clause, he does me and the Committee an injustice. Our job is to try to improve the Bill and to correct its manifest defects, whether we approve of the principle of the Bill or not.
I will commit an act of injudicious frankness. I have never regarded the Bill as very important, and I have always thought that its effects, either for or against, have been grossly exaggerated from time to time. I think that, on the whole, the Bill will benefit A. B. C. foods and multiple stores, whom I do not particularly like, at the expense of the small shopkeeper, whom I do like. I want to protect the small shopkeeper from extinction, because I think that he is a very attractive species, and when a species is attractive I am not very concerned about whether he is efficient or not. The small shopkeepers in Oldham are friendly people, and they have many friends.
I was on the Select Committee which approved the admirable rules which govern the proceeding in this Committee. Under those rules we have to consider the Clause as it exists, and not as it will be when it is sabotaged by the right hon. Gentleman on Report. My hon. Friend the Member for Ebbw Vale (Mr. M. Foot) made some attractive and declamatory observations about the Clause and the Amendments that were under discussion. No one in the Committee has more right to rejoice over the recovery of my hon. Friend than I have. I think that the whole Committee sympathises with my hon. Friend in the dreadful injuries which he received and rejoices at his recovery. Most of us have a deep affection for him.
Nobody addresses the House of Commons with more charming irrelevance, or with greater courage. There are few heights of ratiocination which he 1183 has not attempted at one time or another to scale, and if he has been slightly accident-prone it is because the slopes were too acute for him. Now that he has made a full physical recovery, except perhaps for this manifest and chronic attack of cacoethes loquendi, which we shall bear with optimism, we all rejoice.
I come back to where I started. This is a complicated Bill. It is almost impossible for any of us to contemplate the retention of the present wording of the Clause. The right hon. Gentleman said that it would be possible to apply for an interim injunction. That is true. One can apply for almost anything in the courts, but one does not often get it. The courts have said that they will not grant an injunction except on proof of an exceptional situation that needs immediate restraint, because the granting of an interim injunction to some extent gives an ex parte view, and the proceedings are often adjourned until the applicant can submit evidence by affidavit and so on. It is not really a happy remedy to offer the retailer in Oldham.
But now the right hon. Gentleman announces that an Amendment on the Report stage will torpedo the Clause. The supplier is to be enabled to avoid the issue by means drafted with cynical unconcern. On that, Mr. Blackburn, I would be out of order—and I realise my folly in calling to your personal attention to the possibility of my being out of order in a moment or two—if I were to pursue the right hon. Gentleman's observations, but I hope that he will reconsider this, for I believe that his Amendment will make the Bill nugatory and expose its nudity.
I am glad that my hon. Friend the Member for Ebbw Vale is here now. I paid him a generous tribute in his absence. I crowned him with laurels tinctured with myrrh. Is the right hon. Gentleman really saying that he is going to provide by way of an Amendment that if the dealer gives another excuse it does not matter. The supplier does not say, "I am giving you the go by because you broke the terms of the r.p.m. agreement". He now writes in one of these agreements to which my hon. Friend referred as having taken 1184 place outside the precincts of the House in the nether regions of some sort.
I understand that we are about to be presented with a Clause which will read, "The wholesaler does not really have to establish anything if he stops a retailer's credit and says that his reason for doing that has nothing to do with resale price maintenance, but simply because he does not like the retailer's face, or his bank account, or his habits, or his religion, or his politics, or something of that kind. If a retailer's credit is stopped, he has had it, and if it is a collective action, again he has had it only more so.
A few days ago I paid generous tribute to the right hon. Gentleman. I thought that he had triumphed, but this is surrender. This makes the Clause nugatory and I hope that he will reconsider it. I, too, shall reconsider it, because I have on occasion been wrong, but it is a long time since the last occasion when I was wrong. In the 400th year of the commemoration of Shakespeare, we are confronted with the right hon. Gentleman saying:Let but the commons hear this testament (Which, pardon me, I do not mean to read,").Now we come to the stage when but yesterday the word of the right hon. Gentleman might have stood against the world—or at least the Common Market—but…now lies he thereAnd none so poor to do him reverence.Soon he will be questioningWhether 'tis nobler in the mind to suffer The slings and arrows of outrageous fortuneand be concerned about thoseWho would these fardels bear.Before these three days are concluded the right hon. Gentleman may be rising to question the utility of "a bare bodkin". But I hope not, for his sake.
§ Mr. Winterbottom
I liked the quotations given by my hon. Friend but I do not indulge in reading Shakespeare very often these days. I prefer musical comedy. There is a verse in musical comedy which fits the right hon. Gentleman—
§ Mr. Winterbottom
The Clause and the right hon. Gentleman remind me of a song which, allowing for suitable alterations, went something like this:Sometimes he may say 'Yes',Sometimes he may say 'No',Or whispering low with his cheeks all aglowHe leaves us poor chaps to guess,So patient we must grow.And as the years lapseThe future will showThat although he says 'No'The Minister may mean 'Perhaps'.I think that the Minister has killed his own Bill by giving way on various points which have already been debated, or promising seriously to consider them. We are now at the end of Clause 4, and we can write "finis" to the Bill as an effective Measure. It is as dead as the dodo. It will not make much of a contribution to solving the problem of resale price maintenance.
It may surprise the right hon. Gentleman to hear that I believe in the abolition of resale price maintenance. I believe that we should introduce a good, comprehensive Bill which deals with the subject, and covers the manufacturer, wholesaler and retailer.
§ The Temporary Chairman
These philosophical reflections are all very well, but they are hardly concerned with the Clause. I hope that the hon. Member will deal with the Clause during his speech.
§ Mr. Winterbottom
With great respect, Mr. Blackburn, we are at a stage in the Bill where we can review the progress we have made up to now.
§ The Temporary Chairman
That may be what the hon. Member thinks, but it is not according to the rules of the Committee.
§ Mr. Winterbottom
God never condemned a cheerful trier.
At any rate, I repeat the questions about costs which have been asked of the Minister by his hon. Friend the Member for Crosby (Mr. Graham Page). If we are to have a series of cases arising from the provisions of the Bill, ineffective though it may be, it might be that both wholesalers and retailers, in their respective spheres, are brought to the courts merely through continuing to carry out 1186 what are common practices in each section of the trade. It may be that costs will be incurred by the wholesaler or the retailer as a result of doing no wrong and with no intention to do wrong.
Wholesalers are often faced with the problem of turnover. The main reason for the existence of wholesalers is that they provide a kind of stocking house for retailers. If, in the exercise of their functions, they are compelled to take more stock than they normally take, as a result of the Bill they may be faced with litigation because they subsequently try to keep down their stocks. The Minister must face the fact that even if a wholesaler cannot supply a retailer because of a shortage of stock he may be involved in litigation through no fault of his own.
I want the right hon. Gentleman to make it clear that, in that event, if wholesalers or retailers suffer they shall be recompensed for any losses. If the Minister begins to realise the implications of what I am saying he will begin to realise the price that he must pay for a very inadequate Bill.
I am sorry that the rules of order prevent me from saying what I believe should be in, the Bill. Later in our proceedings there may be an opportunity to do that. Certain it is that even though I believe in the abolition of resale price maintenance I also believe in analysing very closely this Clause in particular. It is only part of a Bill which certainly does not provide the proper way to deal with the problem of prices, and certainly not the proper way to deal legislatively with the problem of distribution.
§ The Attorney-General (Sir John Hobson)
I want to deal principally with the questions asked by my hon. Friend the Member for Crosby (Mr. Graham Page). He asked what was meant by the wordsany person who may be affected by a contravention".of the foregoing provisions, in subsection (2)
Clause 1 makes void for the purposes of the law certain conditions if they are included in a contract of sale. It is therefore unlikely that anybody will be adversely affected, or will wish to complain of a contravention of this Clause, because it is self-operating in making 1187 void under the law certain conditions of contract.
Therefore, we turn to Clause 2, under which a duty is laid upon a supplier not to withhold supplies, from a dealer—and the duty is only upon the supplier to supply the dealer as defined by the Bill. It might be that third parties would be affected by a breach of that duty. I am not prepared to say that such a case would not arise, but I think that it would be unusual, since a duty is laid down only for a supplier not to withhold supplies from a dealer.
My hon. Friend asked why subsection (2) referred to a person who may be "affected" and not a person who may "suffer damage". The intention is to seek to establish a mandatory order. A dealer might find it difficult to show that he had suffered damage from the withholding of supplies, although be might want the supplies and establish a
§ right to have them. He might wish to do so by way of a mandatory order. If he had to prove that he had suffered damage before he could bring his action it might inhibit him from doing so in a number of cases.
§ The question of costs was referred to by the hon. Member for Sheffield, Brightside (Mr. Winterbottom). All those who litigate in the courts are at risk as to costs. When the Crown litigates in the courts it is at risk as to costs, and if the Crown takes over any litigation in the courts in these cases I understand that it will be liable to pay costs if it is unsuccessful and an order for costs is made.
§ Question put, That the Clause stand part of the Bill:—
§ The Committee divided: Ayes 234, Noes 178.1189
|Division No. 77.]||AYES||[8.0 p.m.|
|Agnew, Sir Peter||Corfield, F. V.||Harvey, John (Walthamstow, E.)|
|Allason, James||Coulson, Michael||Hastings, Stephen|
|Amery, Rt. Hon. Julian||Courtney, Cdr. Anthony||Hay, John|
|Ashton, Sir Hubert||Craddock, Sir Beresford (Spelthorne)||Heath, Rt. Hon. Edward|
|Atkins, Humphrey||Critchley, Julian||Hill, Mrs. Evelyn (Wythenshawe)|
|Awdry, Daniel (Chippenham)||Crowder, F. P.||Hill, J. E. B. (S. Norfolk)|
|Barber, Rt. Hon. Anthony||Curran, Charles||Hobson, Rt. Hon. Sir John|
|Bartow, Sir John||Currie, G. B. H.||Hooking, Philip N.|
|Barter, John||Dalkeith, Earl of||Holland, Philip|
|Batsford, Brian||Dance, James||Hollingworth, John|
|Beamish, Col. Sir Tufton||Deedes, Rt. Hon. W. F.||Holt, Arthur|
|Berkeley, Humphry||Digby, Simon Wingfield||Hooson, H. E.|
|Bevins, Rt. Hon. Reginald||Donaldson, Cmdr. C. E. M.||Hopkins, Alan|
|Bidgood, John C.||Doughty, Charles||Hornby, R. P.|
|Biffen, John||Drayson, G. B.||Hornsby-Smith, Rt. Hon. Dame P.|
|Biggs-Davison, John||du Cann, Edward||Hughes Hallett, Vice-Admiral John|
|Bingham, R. M.||Eden, Sir John||Hughes-Young, Michael|
|Bishop, Sir Patrick||Elliot, Capt. Walter (Carshalton)||Hurd, Sir Anthony|
|Black, Sir Cyril||Elliott, R. W. (Newc'tle-upon-Tyne, N.)||Iramonger, T. L.|
|Bossom, Hon. Clive||Emmet, Hon. Mrs. Evelyn||Irvine, Bryant Godman (Rye)|
|Bourne-Arton, A.||Erroll, Rt. Hon. F. J.||Johnson, Eric (Blackley)|
|Bowen, Roderic (Cardigan)||Farey-Jones, F. W.||Jones, Arthur (Northants, S.)|
|Box, Donald||Farr, John||Joseph, Rt. Hon. Sir Keith|
|Boyd-Carpenter, Rt. Hon. John||Fell, Anthony||Kaberry, Sir Donald|
|Boyle, Rt. Hon. Sir Edward||Finlay, Graeme||Kerans, Cdr. J. S.|
|Braine, Bernard||Fletcher-Cooke, Charles||Kershaw, Anthony|
|Brewis, John||Freeth, Denzil||Kimball, Marcus|
|Bromley-Davenport, Lt-Col. Sir Walter||Galbraith, Hon. T. G. D.||Kirk, Peter|
|Brown, Alan (Tottenham)||Gammans, Lady||Kitson, Timothy|
|Buck, Antony||Gardner, Edward||Lagden, Godfrey|
|Bullard, Denys||Gibson-Watt, David||Lambton, Viscount|
|Bullus, Wing Commander Eric||Gilmour, Ian (Norfolk, Central)||Legge-Bourke, Sir Harry|
|Butcher, Sir Herbert||Gilmour, Sir John (East Fife)||Lewis, Kenneth (Rutland)|
|Campbell, Gordon||Glyn, Dr. Alan (Clapham)||Lilley, F. J. P.|
|Carr, Rt. Hon. Robert (Mitcham)||Godber, Rt. Hon. J. B.||Linstead, Sir Hugh|
|Cary, Sir Robert||Goodhew, Victor||Litchfield, Capt. John|
|Channon, H. P. G.||Gower, Raymond||Lloyd, Rt. Hon. Selwyn (Wirral)|
|Chataway, Christopher||Grant-Ferris, R.||Longbottom, Charles|
|Chichester-Clark, R.||Green, Alan||Longden, Gilbert|
|Clark, William (Nottingham, S.)||Grimond, Rt. Hon. J.||Loveys, Walter H.|
|Clarke, Brig. Terence (Portsmth, W.)||Grosvenor, Lord Robert||Lubbock, Eric|
|Cleaver, Leonard||Hall, John (Wycombe)||Lucas, Sir Jocelyn|
|Cooke, Robert||Hamilton, Michael (Wellingborough)||McAdden, Sir Stephen|
|Cooper, A. E.||Harris, Frederic (Croydon, N.W.)||Maclay, Rt. Hon. John|
|Cooper-Key, Sir Neill||Harrison, Brian (Maldon)||Maclean, Sir Fitzroy (Bute & N. Ayre)|
|Cordeaux, Lt.-Col. J. K.||Harrison, Col. Sir Harwood (Eye)||MacLeod, Sir John (Ross & Cromarty)|
|McMaster, Stanley R.||Pitman, Sir James||Taylor, Edwin (Bolton, E.)|
|Macmillan, Maurice (Halifax)||Pitt, Dame Edith||Temple, John M.|
|Maddan, Martin||Pounder, Rafton||Thatcher, Mrs. Margaret|
|Maginnis, John E.||Price, David (Eastleigh)||Thomas, Sir Leslie (Canterbury)|
|Maitland, Sir John||Prior-Palmer, Brig. Sir Otho||Thomas, Peter (Conway)|
|Marshall, Sir Douglas||Proudfoot, Wilfred||Thompson, Sir Richard (Croydon, S.)|
|Marten, Neil||Pym, Francis||Thorneycroft, Rt. Hon. Peter|
|Matthews, Gordon (Meriden)||Ramsden, Rt. Hon. James||Thornton-Kemstey, Sir Colin|
|Maude, Angus (Stratford-on-Avon)||Rawlinson, Rt. Hon. Sir Peter||Tiley, Arthur (Bradford, W.)|
|Mawby, Ray||Redmayne, Rt. Hon. Martin||Tilney, John (Wavertree)|
|Maydon, Lt.-Cmdr. S. L. C.||Ronton, Rt. Hon. David||Touche, Rt. Hon, Sir Gordon|
|Mills, Stratton||Ridsdale, Julian||Turner, Colin|
|Miscampbell, Norman||Rippon, Rt. Hon. Geoffrey||Turton, Rt. Hon. R. H.|
|Montgomery, Fergus||Roberts, Sir Peter (Heeley)||Tweedsmuir, Lady|
|More, Jasper (Ludlow)||Rodgers, John (Sevenoaks)||van Straubenzee, W. R.|
|Morgan, William||Roots, William||Vane, W. M. F.|
|Mott-Radclyffe, Sir Charles||Ropner, Col. Sir Leonard||Vaughan-Morgan, Rt. Hon. Sir John|
|Neave, Alrey||Scott-Hopkins, James||Wade, Donald|
|Nicholson, Sir Godfrey||Sharples, Richard||Wall, Patrick|
|Nugent, Rt. Hon. Sir Richard||Shaw, M.||Ward, Darne Irene|
|Oakshott, Sir Hendrie||Shepherd, William||Wells, John (Maidstone)|
|Orr, Capt. L. P. S.||Skeet, T. H. H.||Whitelaw, William|
|Orr-Ewing, Sir Ian (Hendon, North)||Smith, Dudley (Br'ntl'd&Chiswick)||Williams, Dudley (Exeter)|
|Osborn, John (Hallam)||Spearman, Sir Alexander||Wills, Sir Gerald (Bridgwater)|
|Page, Graham (Crosby)||Speir, Rupert||Wilson, Geoffrey (Truro)|
|Page, John (Harrow, West)||Stalnton, Keith||Wolrige-Gordon, Patrick|
|Pannell, Norman (Kirkdale)||Stanley, Hon. Richard||Wood, Rt. Hon. Richard|
|Partridge, E.||Stodart, J. A.||Woodhouse, C. M.|
|Pearson, Frank (Clitheroe)||Stoddant-Scott, Col. Sir Malcolm||Woodnutt, Mark|
|Percival, Ian||Storey, Sir Samuel||Woollam, John|
|Peyton, John||Studholme, Sir Henry|
|Pickthorn, Sir Kenneth||Summers, Sir Spencer||TELLERS FOR THE AYES:|
|Pike, Miss Mervyn||Tapsell, Peter||Mr. McLaren and Mr. Hugh Roes.|
|Abse, Leo||Finch, Harold||Lever, L. M. (Ardwick)|
|Ainsley, William||Fitch, Alan||Lipton, Marcus|
|Albu, Austen||Foley, Maurice||Mabon, Dr. J. Dickson|
|Allaun, Frank (Salford, E.)||Foot, Michael (Ebbw Vale)||McBride, N.|
|Allen, Scholefield (Crewe)||Forman, J. C.||McCann, J.|
|Awbery, Stan (Bristol, Central)||Fraser, Thomas (Hamilton)||MacColl, James|
|Barnett, Guy||Galpern, Sir Myer||MacDermot, Niall|
|Baxter, William (Stirlingshire, W.)||George, Lady Megan Lloyd (Crmrthn)||Mclnnes, James|
|Beaney, Alan||Ginsburg, David||Mackie, John (Enfield, East)|
|Bence, Cyril||Gordon Walker, Rt. Hon. P. C.||McLeavy, Frank|
|Benn, Anthony Wedgwood||Gourlay, Harry||Mahon, Simon|
|Bennett, J. (Glasgow, Bridgeton)||Greenwood, Anthony||Manuel, Archie|
|Benson, Sir George||Griffiths, David (Rother valley)||Mapp, Charles|
|Blyton, William||Griffiths, Rt. Hon. James (Llanelly)||Mason, Roy|
|Boardman, H.||Griffiths, W. (Exchange)||Mellish, R. J.|
|Bowden, Rt. Hn. H. W.(Leics, S.W.)||Hale, Leslie (Oldham, W.)||Millan, Bruce|
|Bowles, Frank||Hamilton, William (West Fife)||Mltchison, G. R.|
|Braddock, Mrs. E. M.||Harper, Joseph||Monslow, Walter|
|Bradley, Tom||Hart, Mrs. Judith||Moody, A. S.|
|Bray, Dr. Jeremy||Hayman, F. H.||Morris, Charles (Openshaw)|
|Brockway, A. Fenner||Hill, J. (Midlothian)||Morris, John (Aberavon)|
|Butler, Herbert (Hackney, C.)||Hilton, A. V.||Moyle, Arthur|
|Butler, Mrs. Joyce (Wood Green)||Holman, Percy||Neal, Harold|
|Carmichael, Nell||Houghton, Douglas||Oliver, G. H.|
|Castle, Mrs. Barbara||Howell, Charles A. (Perry Barr)||O'Malley, B. K.|
|Collick, Percy||Howell, Denis (Small Heath)||Oswald, Thomas|
|Corbet, Mrs. Freda||Howle, W.||Owen, Will|
|Craddock, George (Bradford, S.)||Hughes, Cledwyn (Anglesey)||Partley, W. E.|
|Cutlen, Mrs. Alice||Hughes, Emrys (S. Ayrshire)||Pargiter, G. A.|
|Dalyell, Tam||Hughes, Hector (Aberdeen, N.)||Parker, John|
|Darling, George||Hunter, A. E.||Paton, John|
|Davies, G. Elfed (Rhondda, E.)||Hynd, H. (Accrington)||Pavitt, Laurence|
|Davies, Harold (Leek)||Hynd, John (Attercilffe)||Pearson, Arthur (Pontypridd)|
|Davies, Ifor (Gower)||Irvine, A. J. (Edge Hill)||Pentland, Norman|
|Davies, S. O. (Merthyr)||Janner, Sir Barnett||Popplewell, Ernest|
|Deer, George||Jay, Rt. Hon. Douglas||Prentice, R. E.|
|Delargy, Hugh||Jeger, George||Probert, Arthur|
|Dempsey, James||Jones, Dan (Burnley)||Pursey, Cmdr, Harry|
|Diamond, John||Jones, J. Idwal (Wrexham)||Randall, Harry|
|Dodds, Norman||Jones, T. W. (Merioneth)||Redhead, E. C.|
|Doig, Peter||Kelley, Richard||Rees, Merlyn (Leeds, S.)|
|Duffy, A. E. P. (Colne Valley)||Kenyon, Clifford||Rhodes, H.|
|Ede, Rt. Hon. C.||King, Dr. Horace||Roberts, Albert (Normanton)|
|Edelman, Maurice||Lawson, George||Roberts, Goronwy (Caernarvon)|
|Edwards, Rt. Hon. Ness (Caerphilly)||Ledger, Ron||Robertson, John (Palsley)|
|Edwards, Walter (Stepney)||Lee, Frederick (Newton)||Rogers, G. H. R. (Kensington, N.)|
|Fernyhough, E.||Lee, Miss Jennie (Cannock)||Ross, William|
|Short, Edward||Slross, Sir Bamett (Stoke-on-Trent, C.)||Wells, William (Walsall, N.)|
|Skeffington, Arthur||Swain, Thomas||Whitlock, William|
|Slater, Mrs. Harriet (Stoke, N.)||Symonds, J. B.||Wilkins, W. A.|
|Slater, Joseph (Sedgefield)||Taverne, D.||Willey, Frederick|
|Small, William||Taylor, Bernard (Mansfield)||Williams, W. T. (Warrington)|
|Smith, Ellis (Stoke, S.)||Thomas, forwerth (Rhondda, W.)||Willis, E. G. (Edinburgh, E.)|
|Snow, Julian||Thompson, Dr. Alan (Dunfermline)||Wilson, Rt. Hon. Harold (Huyton)|
|Soskice, Rt. Hon. Sir Frank||Thomson, G. M. (Dundee, E.)||Winterbottom, R. E.|
|Spriggs, Leslie||Thornton, Ernest||Woodburn, Rt. Hon. A.|
|Steele, Thomas||Timmons, John||Wyatt, Woodrow|
|Stewart, Michael (Fulham)||Wainwrigtit, Edwin||Yates, Victor (Ladywood)|
|Stones, William||Warbey, William|
|Strauss, Rt. Hn. G. B. (Vauxhall)||Watkins, Tudor||TELLERS FOR THE NOES:|
|Dr. Broughton and Mr. Grey.|
§ Clause ordered to stand part of the Bill.