HC Deb 23 April 1964 vol 693 cc1644-54
Mr. du Cann

I beg to move Amendment No. 183 in page 7, line 5, to leave out from "regulations" to "and" in line 7 and to insert for the purposes of registration under section 6 of this Act and for purposes connected therefith". It might be for the convenience of the Committee to discuss, at the same time, Amendments Nos. 184, 207, and 208.

The Chairman

If that is convenient to the Committee.

Mr. du Cann

All four Amendments are consequential on Amendments relating to the registration procedure which the Committee has already discussed. They are new subjects, so to speak, and the Committee may wish me to say something about them.

Amendment No. 183 replaces some words dealing with the Registrar's power to make regulations with respect to the giving of notices which would now be inappropriate. The Committee will appreciate that the words had to be changed. Amendment No. 184 is purely consequential on that one and I need not weary the Committee with the details.

Amendment No. 207 is designed simply to enable the Registrar to apply by the regulations any of the provisions under Section 11 of the 1956 Act, which deals with the register under that Act, for the purposes of the register to be kept by him under the Bill. In particular, the Registrar will be able, with the consent of the Treasury, to charge fees for supplying copies of entries on the register. Amendment No. 208 is purely technical, and consequential on No. 207.

In other words, all these Amendments are consequential on the new registration procedure, and, the Committee having accepted other Amendments to establish that procedure, I hope that it will think it right to approve these Amendments also.

Amendment agreed to.

Further Amendments made: In page 7, line 8, leave out "such notice" and insert: notice claiming registration in respect of goods".

In line 16, leave out from beginning to "1956" in line 17 and insert: (c) for applying in relation to the register kept under the said section 6, subject to such modifications as may be prescribed by the regulations, any of the provisions of section 11 of the Restrictive Trade Practices Act 1956 (general provisions as to the register under that Act); and subsections (2) to (4) of section 19 of the said Act of".

In line 18, leave out "such regulations" and insert "regulations under this subsection".—[Mr. Heath.]

Mr. A. R. Wise (Rugby)

I beg to move Amendment No. 162, in page 7, line 29, at the end to insert "6 or".

The Chairman

With this Amendment it will also be possible to discuss Amendment No. 176.

Mr. Wise

The purpose of this Amendment is to allow payment of costs to successful applicants. It is widely drawn, and covers a very wide range of possible successful applicants. I know that objection will be taken to this and to a certain extent, it reasonably could be taken—on the grounds that whenever Parliament alters the law, anyone affected by that alteration will be able to profit at the expense of the Treasury. The fact remains that we are dealing with a class of persons who, hitherto, have not only had the protection of the law but have had the reinforcement of the law in carrying out what was fully allowed under the 1956 Act. These persons are now, through no fault of their own—and certainly through no malpractice on their part—suddenly declared to be outside the law. They therefore have to justify their case all over again, and that does not seem to be equitable.

I think that as they are about to be put in peril solely by the House of Commons, they have some moral claim not to be mulcted heavily in addition for justifying the rights they have en-enjoyed now for eight full years. I believe that my right hon. Friend is prepared to make some move in this direction. I should welcome any small crumbs that can be thrown from the table, but I still hold that in ethics this claim is justified. I put it to my right hon. Friend that if his interpretation of the Bill is such that there will not be very many successful applications to the Restrictive Practices Court, he is not committing the Treasury to very much expenditure. If, on the other hand, my interpretation is correct, he will be doing a just and proper thing by allowing costs to those who are successful.

10.30 p.m.

Mr. W. Wells

As we understand the Amendments, the second of them extends to successful applicants what is the invariable right of successful applicants in our courts that when they have established their rights it is within the discretion of the courts to award them the cost of bringing the proceedings. This appears to me to be the position in respect of proceedings under Clause 5, but I do not understand so well the Amendment in so far as it applies to Clause 6. However, we would certainly think that what is proposed is just in relation to Clause 5 and we would hope that at some later stage, if not now, an Amendment will be incorporated in the Bill to give effect to that part at least of the hon. Member's Amendment.

Mr. Graham Page

We have in the Bill left the decisions on exemptions and so on to the Court. This has been decided and debated on several Amendments and it is quite clear that this is the basis of the Bill. Having left the decisions to the Court, this is litigation however one looks at it, and it is litigation pure and simple. It is not litigation before an administrative tribunal or a matter of administrative decisions. I should have thought that in these circumstances the ordinary rules relative to costs in the courts should apply, that is, that the costs should follow the event and the successful party should receive his costs and the unsuccessful party should pay the costs.

If we do not apply that general rule of litigation it may be entirely prohibitive to those who wish to bring their case before the Court. The prospect of running the risk of paying the costs may be so great that persons entitled to rights under the Bill will fear taking their rights. To that extent we shall be denying them justice. It is unlikely that those who wish to claim rights under the Bill will be entitled to legal aid. They will have the funds of their business behind them. It cannot, therefore, be said that we are not denying them justice because they will have the opportunity to apply for legal aid. It may be that they will have long and expensive preparation of the case before they appear in Court and I fear that we may do grave injustice to those who have rights under the Bill if we deny them the normal rules about costs in the courts.

The Attorney-General (Sir John Hobson)

There may be a strong argument for applying the ordinary rule on costs to the proceedings before the tribunal, but that is not what the Amendment proposes to do. The ordinary rule is that if a person goes to court and fails he is at risk of having to pay not only his own costs but his opponent's. As the Bill is drafted, an applicant can go to the Court without being at any risk at all, having failed in his application of having to pay the Registrar's costs. The Bill provides that in one set of circumstances only the Court may order the Registrar to pay the citizen's costs.

This Amendment does not introduce a system by which, at first instance, the applicant may get his costs but would he at the risk of having to pay the other side's costs. The Amendment would only enable the Court to order the payment by the Registrar of the costs of the parties in the original application, and would not put the parties in the original application at any risk at all.

As Clause 8 is drafted at present, it permits an order for costs to be made against the Registrar in one case only, and that is where the Court has reviewed, under Clause 7, its previous decision exempting or refusing to exempt goods. In such a case under Clause 7, the Court may award costs against the Registrar only if the supplier is successful. In no case, even under Clause 7, can the applicant be ordered to pay the Registrar's costs even though the Registrar were successful.

The object of the Amendment is to secure the prospect of a one-sided benefit, for the benefit of the applicant against the Registrar, which has been granted under an application on second hearing under Clause 7 for the hearing at first instance. This cannot, in my submission, he right. There cannot be any justification in putting forward an Amendment under which a Registrar would be at risk but the applicant would not. For these reasons, I submit that this Amendment should not be accepted.

My hon. Friend the Member for Rugby (Mr. Wise) mentioned that there might be some cases of hardship, and certainly my right hon. Friend the Secretary of State will consider whether there may not be some instances in which it may be possible to consider whether something should be done in relation to costs, though it could not be general provision that an applicant who was successful at first instance would get his costs and, if he failed, would not have to pay the Registrar's.

Mr. Wise

In view of what my right hon. and learned Friend has said, I am encouraged to a certain extent to hope that at least some of my contentions will be met. In fact, I still hold that as it is we who have put these people to this expense, and no action of their own, we still have an obligation. But in view of the fact that I am surveying the prospects of a Division with very little hope of succeeding therein, I am not prepared to waste the time of the Committee by marching into the Lobby.

I therefore beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Mr. Milne

I beg to move Amendment No. 163, in page 7, line 33, after "retailers", to insert: and trade associations representing employees in the distributive trades".

The Deputy-Chairman (Sir R. Grimston)

It will be convenient to take Amendment No. 164 with this Amendment.

Mr. Milne

This Amendment seeks to make provision in the rules of procedure for the Restrictive Practices Court to have trade unions representing distributive workers who have an interest in any proceedings under the Bill, entitled to be represented in these proceedings in exactly the same way as the retailers.

When discussing this principle on an earlier Clause the Minister pointed out that this matter would be raised at a later stage, and if I heard him aright and read the interpretation of his words correctly he was prepared to look at this point sympathetically.

The right hon. Gentleman also mentioned in the course of the debate on that Clause—and it comes within the context of this Clause—that my hon. Friend the Member for Ogmore (Mr. Padley) in the Second Reading debate stated that distributive workers had little to fear in relation to the Bill and that conditions, as he rightly said, had altered in the interval.

My hon. Friend said, speaking from the trade union angle, I am not unduly fearful about the passing of the Bill, but I believe it to be my bounden duty, before making a few practical trade union points, to warn everybody that it will not solve the problems of the distributive trades…"—[OFFICIAL REPORT. 10th March, 1964; Vol. 690, c. 297.] He had earlier made a similar reference to the same point, but at this hour I shall not weary the Committee with further quotation.

There arises under this Clause a point where the legitimate interests of distributive workers may be affected, and the right of those workers or their trade unions to be represented should, I am sure, be established.

Mr. Heath

The hon. Member for Blyth (Mr. Milne) is quite right in what he says about my approach to this question at an earlier stage. I was intending to indicate that I would consider the point sympathetically. Somewhat to my surprise, his right hon. Friend the Member for Battersea, North (Mr. Jay), the hon. Lady the Member for Blackburn (Mrs. Castle) and others poured a considerable amount of scorn upon this proposed facility. They said that they thought, on the whole, that it was useless and of no value. They asked what was the point in having it if the interests of retailers and distributive workers were not to be included under Clause 5.

I am still perfectly prepared to consider it sympathetically, but I should like to feel that it was genuinely required on behalf of distributive workers. There is the point that providing for this facility could mean that a case would take longer, with additional burden on the parties involved, and so on. All that must be borne in mind, but, if there is a genuine desire that the facility should be made available in the same way as there is provision in the Bill for retailers, I shall, if the hon. Gentleman would be kind enough to withdraw his Amendment, consider it sympathetically between now and the Report stage.

Mr. Graham Page

I hope that my right hon. Friend will not be deterred by any scorn poured on this proposal from the other side of the Committee. It is a most important Amendment. My right hon. Friend gave an assurance at an earlier stage that he would consider it seriously.

Clause 8(3), to which this is a proposed Amendment, is extremely beneficial in allowing retailers to come in and put their case, and it is just as important, in my submission, that the employees in the distributive trades should put their case. It has been said that certain hon. Members opposite did not think that it would go far enough, but this should not deter my right hon. Friend from carrying in to effect the assurance which he gave.

I hope that he will introduce something in suitable form to achieve the object which we have in mind. It will not necessarily be in the form of the Amendments before us now, for this reason. Retailers do not have to come in under an association or union of any kind. They are allowed in merely as retailers. I hope that my right hon. Friend will bear in mind that some distributive workers are not bonded together in an association or union, and I do not think that one ought to restrict their intervention to intervention through a union. They should be let in in the same way as the Bill lets in retailers, and my right hon. Friend should, I suggest, use some such expression as "distributive workers" which would have that result.

Mr. W. Wells

I hope that the Secretary of State will act as the hon. Member for Crosby (Mr. Graham Page) has suggested. It is quite right, of course, that we were disappointed when the right hon. Gentleman would not accede to the argument that both retailers and employees had such an interest under Clause 5 as entitled them to take the initiative in proceedings thereunder. But this is not to say that it is not an important right to be able to appear once the proceedings have been initiated. Surely, it is clear from the arguments adduced by my hon. Friend that this is an important matter.

10.45 p.m.

I understood the right hon. Gentleman to give a clear undertaking that he would, in any circumstances, consider the matter sympathetically, and I trust that the fact that we were disappointed on one Amendment will not deter him from carrying out the undertaking which he has given on this one.

Mr. Milne

Contrary to what the hon. Member for Crosby (Mr. Graham Page) has said, I was not pouring scorn upon the Minister's remarks. I was extremely grateful for the points that were made. I well understand the apprehension concerning the time taken by the Court, because when we are dealing with 100,000 self-employed retailers and 350,000 distributive workers, the question of time can be important.

The words already in the Clause are a safeguard in this matter, because it states at line 35 that retailers shall be represented if they have an interest in the proceedings…whether in consequence of a representation order or otherwise…before the Court". The Court could, therefore, take care of the question of which members of the distributive trades were entitled to be represented at any hearing. Safeguards on this matter are already in the Clause and I am grateful for the assurances which have been given.

Mr. Heath

I feel encouraged in well doing by the words of my hon. Friend the Member for Crosby (Mr. Graham Page) and of the hon. and learned Member for Walsall, North (Mr. W. Wells), as well as by what has been said by the hon. Member for Blyth (Mr. Milne). Therefore, we will see what can be done for the Report stage.

Mr. Jay

I welcome the Minister's statement. Although I have not heard the whole of this discussion, I heard the Minister imply a slight doubt as to the attitude of the organised distributive workers when he said that if there were a clear wish, he would take account of it. The presence of the name of my hon. Friend the Member for Ogmore (Mr. Padley) at the head of the names to Amendment No. 164 is clear evidence that there is a wish on behalf of the organised distributive workers that the Minister should meet us on this point. As the Minister knows, the only reason why my hon. Friend is not here today is that he has obligations to the distributive workers, and I am sure that he would wish to give a clear affirmative answer to that question.

Mr. Milne

I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause, as amended, ordered to stand part of the Bill.

Clause 9 and 10 ordered to stand part of the Bill.