HC Deb 24 April 1964 vol 693 cc1758-71

No proceedings for an offence under sections 2, 4, or 5 of this Act shall be instituted in England and Wales except by or with the consent of the Director of Public Prosecutions.—[Sir H. Legge-Bourke.]

Brought up, and read the First time.

2.20 p.m.

Sir Harry Legge-Bourke (Isle of Ely)

I beg to move, That the Clause be read a Second time.

Mr. Deputy-Speaker (Sir William Anstruther-Gray)

With this new Clause it might be convenient also to discuss Amendment No. 12, in Clause 5, page 3, line 26, leave out subsection (3).

Sir H. Legge-Bourke

I am grateful to you for your suggestion, Mr. Deputy-Speaker. I would not mind if we also discuss Amendment No. 10, in Clause 5, page 3, line 20, after "posted", insert "(a)", and No. 11, in page 3, line 23, at end insert and (b) a catalogue giving such particulars as will enable customers readily to ascertain the number of trading stamps which is required for the purpose of enabling a person to obtain any article or thing described in the catalogue". I have not had an opportunity of consulting the hon. Member for Swindon (Mr. F. Noel-Baker) on the matter, and I do not know how the House would feel about that.

Mr. Deputy-Speaker

Amendment No. 10 will not be selected. I do not know whether the House would wish to discuss Amendment No. 11 now or whether it would prefer to leave the matter as it is. Perhaps it would be better to leave the matter as it is.

Sir H. Legge-Bourke

Perhaps I should remind the House of the penalties involved in respect of an offence under Clauses 2, 4 and 5. Under Clause 2 the penalty for a promoter of a trading stamp scheme is £100 and for another person £20. Under Clause 4 the penalty shall not exceed £100, and Clause 5 provides for a fine not exceeding £20.

There is a precedent for this Clause, which has the effect of ensuring that the Director of Public Prosecutions, if he himself has not taken the initiative, shall give his consent to anybody to prosecute under the Clauses of the Bill. There is, in fact, more than one precedent for this. In the Prevention of Frauds (Investments) Act, 1958, Section 1(3) lays down: Proceedings for an offence under this section shall not, in England or Wales, be instituted except by, or with the consent of, the Board of Trade or the Director of Public Prosecutions. There is a similar provision in Section 14(7) of the same Act. I would here say that this new Clause does not include the Board of Trade, only because the Board of Trade, throughout the deliberations that we have had on this Bill, has been very anxious to opt out of any such responsibility in the enforcement of the Bill.

As I think the House knows, on Second Reading I advocated to the Parliamentary Secretary of the Board of Trade that I would by far prefer a form of registration of stamp trading companies or stamp promoters, but that suggestion was turned down, and it would seem to be a little unfair, as the Committee upstairs accepted the argument of the Board of Trade to keep it out of the administration of this Bill so far as that is possible, to bring it in only for this purpose. Hence, the very slight difference between the wording of my new Clause and the precedent which I have just cited.

There is an even more exact and recent precedent than that of 1958, in the Protection of Depositors Act, 1963. Section 23(1) of that Act contains the same wording as in this new Clause, save for the fact that the Board of Trade is included in that Act whereas it is not in the new Clause. That, I feel, should be very dear to the heart of my hon. Friend the Minister of State, not least for his considerable interest in unit trusts in the past.

The purpose of this new Clause is solely to avoid frivolous prosecution. It would seem to me that a fine of £100, or even £20, would, in certain cases, be quite a serious matter for anybody against whom a charge was brought. It is not the sort of thing that a person would just accept quickly in order to get rid of the case. It is something that he would have to fight in his own interests. It seems to me that it would be quite wrong that any opportunity should be given for a frivolous prosecution.

I am very grateful to my hon. Friend the Member for Sheffield. Hallam (Mr. J. H. Osborn) for agreeing that his Amendment, No. 12, should be discussed now, because the main anxiety that I have is that the principal opportunity for frivolous prosecution arises out of the question of catalogues in shops. My hon. Friend is seeking to take subsection (3) out of Clause 5 of the Bill, and this goes a very long way to meet the purpose that I have in mind in moving this new Clause.

I do not know what his attitude will be to Amendment No. 11, but there is a difference between the two, and what is particularly unfortunate about subsection (3) as it stands is that the catalogues are in the plural and it would mean that if any change in price had taken place since the catalogue was printed, every catalogue would have to be amended, if the person putting them on view in his shop, or making them available in his shop, was to avoid the possibility of prosecution and a fine of £20 under Clause 5.

I will refrain from commenting on Amendment No. 10 because that point is avoided in that Amendment. Therefore, if my hon. Friend can give me an assurance that he has no intention whatever of simply raising a discussion on his Amendment and then seeking to withdraw it, and that he really means to take subsection (3) out of Clause 5, I shall feel that he has gone a very long way to meet the case, although I think that it would be as well if we could lave the advice of the Minister of State on this matter regarding my three precedents. I am wondering whether those precedents have been overlooked in the advice that has been given so far. If they have, I think that they ought seriously to be reconsidered. If we cannot do that today, perhaps some indication could be given that when the Bill goes to another place it could be given further consideration there.

What I am anxious to avoid is frivolous prosecution as a result of a minor error, perhaps through no deliberate fault of the person concerned, and to ensure that in order to prevent frivolous prosecution, but failing any other means of stopping it, the Director of Public Prosecutions has to give his approval, if he himself has not already taken action.

Mr. Antony Buck (Colchester)

Speaking on behalf of my hon. Friend the Member for Sheffield, Hallam (Mr. J. H. Osborn) and the other sponsors of the Bill, and in connection with the later Amendment which we are discussing with this new Clause, I can at once give my hon. Friend the Member for the Isle of Ely (Sir H. Legge-Bourke) the assurance that he is seeking. It is the intention of the promoters of the Bill not merely to move the Amendment which is down in page 3, line 26, to leave out subsection (3), but to pursue this matter.

I have, of course, talked to my colleagues about this point. I shall not say too much about it, or I shall, no doubt, get into trouble with the hon. Member for Ebbw Vale (Mr. M. Foot) for mentioning the discussions that there may have been. It is, however, the intention of the promoters of the Bill to pursue that Amendment.

That, I hope, may dispose of the new Clause which my hon. Friend is seeking to promote. Speaking for myself, I would in any event oppose this new Clause going into the Bill. It is, in my view, fundamental to our legal system that all of us have a right to prosecute for a criminal offence. This is one of the basic concepts of our whole system. We do not have to rely upon the police, who are, of course, immensely reliable, but they are under no obligation to prosecute in any case.

It is a safeguard of our system that any of us can carry forward a prosecution as we wish. It has been established law now for many years, certainly since a leading case in, I think, 1811, and it has been described by the judges in the sort of terms which I have just repeated to the House. It is regarded as important.

2.30 p.m.

It is perhaps of some interest to refer to the evidence which was given by the former Attorney-General, now the Lord Chancellor, to the Select Committee on Obscene Publications, when this whole matter was considered. I think that it may help my hon. Friend if one referred to the part of the memorandum which he presented. My hon. Friend said that there are precedents for this. He has recited two Acts with three precedents, but there are also far more. As the right hon. and learned Attorney-General, as he then was, pointed out to the Select Committee: There are some eighty statutory provisions restricting the right to institute criminal proceedings without the consent of the Attorney-General. Almost half of these eighty restrictions were imposed during and immediately after the war, generally in connection with the enforcement of controls which were of necessity drafted in wide terms and the object of the restriction was to ensure the proper enforcement of the policy underlying the imposition of the control. Apart from those cases it does not seem to me to be possible to deduce any intelligible principle on which the Legislature may be thought to have acted: the list of restrictions is full of anomalies and even absurdities. The Attorney-General went on: In my opinion the problem should be approached on the footing that it is a fundamental principle of English criminal law that proceedings may be instituted by private individuals, and accordingly that the right to prosecute is unrestricted, unless some very good reason to the contrary exists. In my view, it is difficult to say that it does exist or that there is any very good reason at all for here departing from this fundamental rule.

My hon. Friend referred to the possibility of vexatious prosecutions. I want the House to consider whether there are likely to be large numbers of vexatious prosecutions. Who is to indulge in them to the detriment of the trading stamp companies? For instance, will Sperry & Hutchinson indulge in prosecutions against Green Shield stamps? Of course not. If there were to be any examples of petty prosecutions of this sort being indulged in then the person indulging in the practice would have to watch his position very carefully. If a prosecution were shown to be vexatious and frivolous it would be thrown out and the person bringing the action would be liable to pay the costs. This, I suggest, when one is considering fines of this character, is quite a sufficient sanction to prevent vexatious prosecutions for the protection of the trading stamp companies.

Sir H. Legge-Bourke

I was very interested in the passage which my hon. Friend read out from the Attorney-General's view. I felt it was a little inconsistent. In an Act passed as recently as the Protection of Depositors Act, 1963, it was thought desirable to write it in. I wonder whether my hon. Friend can advise me whether there is a particular distinction in his mind between this legislation and the Prevention of Fraud (Investment) Act.

Mr. Buck

I will come to the two Acts which my hon. Friend has mentioned. I approach the problem from the point of view that we should not depart from the normal procedure unless there is very good reason. At a later stage we shall have the infinite advantage of hearing from the Minister of State as to the two Acts which my hon. Friend mentioned. Perhaps I can say this about them. The first was the Prevention of Fraud (Investment) Act, 1958. That, I think, is different from the Bill under discussion by virtue of the fact that this was a Measure, as I understand, which really put under the broad supervision of the Board of Trade the whole question of people indulging in trading in investments.

If in the Bill under consideration today we had gone in for the registra- tion procedure, which was mooted at one stage, there might be a stronger parallel between this Measure and the Prevention of Fraud (Investment) Act. That is a very different Measure from this Bill which does not empower the Board of Trade to do anything, and, a fortiori, the Director of Public Prosecutions is right outside its ambit. Therefore, I think it is quite different from the Prevention of Fraud (Investment) Act.

I think that the same consideration applies to the Protection of Depositors Act, 1963. This is a Measure on an altogether different scale from the Bill we are considering today. I should have thought that one difference which was apparent to the House was the nature of the penalties imposed under the Protection of Depositors Act and the sort of penalties with which we are concerned here. Here, we are concerned with fines of £100 and £20. Under the Protection of Depositors Act, if I recall it correctly, the person guilty of an offence under Section 1 of that Act is liable on conviction to a term of imprisonment not exceeding seven years. In these circumstances, I would have thought that there would obviously be a case for a greater degree of supervision. As the result of bringing vexatious or frivolous prosecutions under that Act there are serious consequences which do not arise under this Bill.

I think that the two Acts are different, and I do not think that there is any strong case for making the Director of Public Prosecutions liable to consider all the papers in such prosecutions. Is it really fair on the Director of Public Prosecutions, who, after all, is an extremely busy man in the fight against crime on a big scale, to ask him to consider the papers in a case proposed to be brought because of the contravention, or alleged contravention, of a statement required on the face of a trading stamp, or, indeed, a failure to put something into a catalogue which should have been in it or to ask the Director of Public Prosecutions to go into a case which involves a failure to display sufficient information in a shop. In my humble submission, this would be going outside the ambit of the serious matters which are usually and more properly within the purview of the Director of Public Prosecutions.

We are also discussing with this new Clause the Amendment which stands in my name and that of my hon. Friend the Member for Sheffield, Hallam (Mr. J. H. Osborn), in Clause 5, page 3, line 26. to leave out subsection (3). The hon. Members who served on the Standing Committee will recall that it was remarkable for many features. Perhaps the most remarkable was the extraordinary and quite excellent expedition with which matters were considered, at any rate towards the end of the day. I think that it would be conceded by the House that perhaps it was not appropriate that this subsection should have been included in the Bill and that it would be conceded that, as worded, the subsection raises certain difficulties. It says: Catalogues shall be placed in such a position as to be conveniently read by and freely available to customers. This is not a clear subsection to have in the Bill. What precisely does it mean? It would seem probable that a retailer would have to have an unlimited supply of catalogues in his shop—up-to-date catalogues—and would have to make them available very easily and readily to customers in whatever numbers they come into the shop. I submit to the House that this would be an unconscionable burden on a retailer and would put a considerable burden on the trading stamp companies if ail the time they had to supply a flowing stream of catalogues which were always up to date. This would seem to be too great a burden to place on retailers and stamp trading companies. It is the hope of the promoters that the House will see fit to delete that provision from the Bill for the sake of both the retailer and the stamp trading company and also of the clarity of the Bill generally.

The Minister of State, Board of Trade (Mr. Edward du Cann)

First, I should like to explain the interest of the Government in relation to this Bill. It is simply to see that we have a workable and sound Bill.

With regard to the new Clause, moved so clearly by my hon. Friend the Member for the Isle of Ely (Sir H. Legge-Bourke), the ordinary rule in England and Wales, as my hon. Friend the Member for Colchester (Mr. Buck) said, is that anyone may prosecute. A restrict- tion to prosecutions by or with the consent of he Director of Public Prosecutions is appropriate where the offence is inherently likely to provoke malicious or oppressive prosecutions, or it is desired to have some control of policy in ad ministering the Act in question.

Against these criteria we have to measure the new Clause. All that my hon. Friend the Member for Isle of Ely has said about it I entirely understand. The purpose is that vexatious prosecutions should be avoided. We have considered the matter as carefully as we can and are fully satisfied that Clauses 2, 4 and 5, if offended against, would not appear likely in any way to attract the vexatious prosecutor. Nor do we think there would seem to be any real probability of such discrepancies in their application as to call for any central control. In other words, I hope that I can reassure my hon. Friend fully upon that.

My hon. Friend the Member for Colchester went through the precedents raised by my hon. Friend the Member for the Isle of Ely in general, and to some extent he went through them in particular. What he said was very largely an answer to the anxieties expressed by my hon. Friend the Member for the Isle of Ely. I notice my hon. Friend the Member for the Isle of Ely acknowledging it. Perhaps it would be of assistance to him if I added a few words.

I entirely endorse what my hon. Friend the Member for Colchester so clearly said but there is another point in relation to the two Acts which my hon. Friend the Member for the Isle of Ely mentioned, and I should like to answer this shortly. This relates to Section 1(3) of the Prevention of Fraud (Investment) Act. My hon. Friend the Member for the Isle of Ely was right to remind us that that was a recent Act, but it was also a consolidation of an Act of 1939. My hon. Friend "pulled my leg" a little in a complimentary fashion about my former experience when earning an honest living in business. I remember that Act well, because under its framework the Board of Trade exercised its control of the type of investment organisation with which I was concerned.

Under Section 1(3) of that Act, prosecutions are limited to the Board of Trade and the Director of Public Prosecutions. As my hon. Friend the Member for Colchester said, this was done not only because of the gravity of the matter, but because of the complexity of the cases which would be forthcoming under that Act. Precisely the same point applies to the Protection of Depositors Act, with which, as Economic Secretary, I was also concerned.

In our opinion, the general argument that the ordinary rule in England and Wales should be that anyone may prosecute is in no way upset by the introduction of the Bill, and, in our judgment, the precedents quoted by my hon. Friend the Member for the Isle of Ely would not be right to follow. As I have said, we do not believe in any way that the Bill, if it becomes an Act, will attract vexatious prosecutors.

In regard to the question of the deletion of subsection (3) of Clause 5, I agree with what has been said by my hon. Friend the Member for Colchester. We are in favour of the maximum amount of information being available to the consumer. But the subsection is open to objection, principally because the whole liability is placed on the retailer rather than on the stamp company which will be issuing the catalogue.

I should be willing to consider something on the lines of the Amendment which has been tabled or a new subsection, but it is bound to be complicated because of the need to establish a division of liability between the retailer and the stamp company. We feel that catalogues are in any case likely to be available. After all, the catalogue is the prime instrument by which the companies obtain business. The catalogues constitute the chief incentive or attraction to collect stamps, and they must be made available, otherwise the efforts of the stamp companies to attract people to shops where stamps are available would be ineffective.

I hope that my hon. Friend the Member for the Isle of Ely will think it right not to press the new Clause. I should then be happy to agree with my hon. Friend the Member for Colchester, one of the sponsors of the Bill, and would hope to see subsection (3) of Clause 5 taken from the Bill.

2.45 p.m.

Mr. George Darling (Sheffield, Hillsborough)

I agree with the hon. Member for the Isle of Ely (Sir H. Legge-Bourke) that we must make sure that we do not include in this or any other Statute frivolous causes for legal proceedings. Therefore, it is our duty in looking at the Bill at this stage to exclude all imprecise, unreasonable or unacceptable offences. I am sure that the hon. Member would agree that that is the way to tackle the problem, and not by depriving, as the hon. Member for Colchester (Mr. Buck) pointed out, the aggrieved citizen of his right to prosecute where he has a legitimate grievance against any of the companies which may be involved.

As to the Amendment, I should be somewhat reluctant to lose the subsection, for reasons which will be apparent when we come to Amendment No. 11. However, if we are to be consistent the subsection must go out, because, as the Minister pointed out, it would lead to this being a defence in a way that we do not want it to be. In any case, it is rather frivolous in the way it is drawn—using the word "frivolous" in the way we have been discussing it so far.

Therefore, I also appeal to the hon. Member for the Isle of Ely to withdraw his new Clause, and then I think we could agree with the Amendment to Clause 5.

Mr. Reader Harris (Heston and Isleworth)

I should have thought that my hon. Friend the Member for the Isle of Ely (Sir H. Legge-Bourke) was right in the proposition he put forward. As a member of a company which has an interest in a company which uses trading stamps, I wonder who the people are who are likely to take action under these Clauses. Who are the people who are likely to institute proceedings? I should have thought that my hon. Friend the Member for Colchester (Mr. Buck) was being a little naïve in suggesting that those likely to institute proceedings are stamp companies, against other stamp companies. Those are not the people who will start malicious prosecution. Such proceedings will be started by retailers or firms which do not issue stamps.

This Bill was got off the ground with the utmost malice. It was not brought forward at the request of the public. It was produced to appease firms which do not issue stamps. This does not mean that I am against the Bill. Indeed, I shall support it. I believe that the provisions which it lays down are ones with which any reputable stamp company would be able to comply, and with which it would want to comply.

Mr. Buck

As one of the sponsors, I can give an assurance that in supporting the Bill I have no intention of appeasing anybody. That has been far from my thoughts. My only intention has been to put on the Statute Book something which will be useful to the small trader and the public.

Mr. Harris

I am not saying that the Bill will not have its uses. I am merely saying that it was got off the ground originally to appease the people who do not issue stamps. Those are the people who could, if they wanted to, institute malicious prosecutions. They probably will not do so if we draw attention to the matter forcibly in this House. I should have liked an undertaking from the Minister of State that the Board of Trade will watch the matter to ensure that there are not malicious prosecutions.

Mr. Geoffrey Hirst (Shipley)

As one of those who have taken an interest in this matter from the beginning, I should like to support what has just been said. Our interest in the matter from the beginning has been that we do not think stamp trading is in the interest of the consumer. There has been no question of appeasing anybody. My hon. Friend the Member for Heston and Isleworth (Mr. R. Harris) has been rather more offensive than is his normal nature in suggesting that.

Mr. Harris

I would not want to be offensive. We must accept that there are different views on the subject of stamp trading.

I notice that Clause 5 (2), which, I gather, will remain in the Bill, states: A notice under this section shall be posted in such a position as to be conveniently read by customers. I should have thought that this was a matter on which there could be a wide variety of opinion and that if anybody wanted to start vexatious litigation, it would not be difficult to pick on some- thing like this and make something of it. Clauses such as these have considerable nuisance value.

I shall support the Bill for the reason which I have given. I would not want to impute any unworthy motives to anyone promoting the Bill, but I still think it right to make the point that the Bill was not clamoured for by the public. My hon. Friend the Member for the Isle of Ely has been asked to withdraw his new Clause. I shall be sorry if he does. I have made my point. However, I would ask the Minister of State whether he will give an undertaking that he will watch the position and ensure that the Measure is not abused.

Mr. du Cann

May I draw attention to the fact that, in practice, we expect that proceedings under the Bill would normally be taken by local authorities or by the police, who have substantial experience in criminal prosecutions of this sort. But I do not rule out the possibility that in a major case a Government Department, for example, the Board of Trade, might institute proceedings if they thought that the public interest demanded it. I hope that my hon. Friend is reassured by what I have said.

Sir H. Legge-Bourke

We have had a useful debate, which has clarified beyond doubt what will be the situation under the Bill. May I take up one point made by my hon. Friend the Member for Colchester (Mr. Buck), which was followed by my hon. Friend the Member for Heston and Isleworth (Mr. R. Harris)—who are likely to take advantage of any opportunities under the Bill? There is one of our hon. Friends who might take the opportunity, judging by what was said by my hon. Friend the Member for Cleveland (Mr. Proudfoot) on Second Reading. Perhaps I may quote from what he said: A few weeks ago I thought that I would start a one-man campaign against the stamp companies by going to filling stations where stamps were given and asking for a discount instead of stamps. But this was refused and so I asked for a stamp catalogue and a stamp book in which to put the stamps. I thought that I could fill my car with catalogues and books and so operate a campaign in that way. But I came to the conclusion that I could not get enough people to do the same, and so I dropped the idea."—[OFFICIAL REPORT, 31st January, 1964; Vol. 688, c. 699.] My hon. Friend the Member for Cleveland enjoys his own speeches quite as much as does the House, and he was in terrific form that afternoon and made one of the most enjoyable speeches in the Second Reading debate. He might perhaps have been more successful in his campaign if the Bill had become an Act before he started his exercise.

We have had pointed out beyond peradventure that it is not the desire of the promoters of the Bill, still less of the Government, to make it easy for people to indulge in vexatious litigation. The point made by my hon. Friend that there are always the courts to be considered in these matters was a good point, and that is probably as good a deterrent as any. I say to my hon. Friend the Member for Heston and Isleworth—and I hope that he will not take this amiss—that I prefer to let Mr. John Bloom look after himself on this matter.

I beg to ask leave to withdraw the Motion.

Motion and Clause, by leave, withdrawn.