SHORT TITLE, INTERPRETATION, EXTENT AND DURATION (Hansard, 3 December 1968)

§ Mr. Nott
I beg to move Amendment No. 37, in page 3, line 40, leave out 'one year' and insert 'six months'.
On 28th November, referring to the import deposits, the Financial Secretary said: They are temporary in impact and in intention, the idea being to make a sharp immediate assistance to our export-import ratio, to give time for the major strategy, which is to bring our exports and imports into balance—and, indeed, in surplus—to take effect."—OFFICIAL REPORT, 28th November, 1968; Vol. 774, c. 751.] I put down this Amendment because I thought it surprising that the Government were not expecting the balance of payments to break even, or, to use the hon. Gentleman's words, to break into surplus, within six months from the time the Bill comes into effect. If the Government wish the Bill to be temporary, if they see that it could have certain disadvantages in international trade, and if they favour the liberalisation of trade, they should provide that Clause 1 shall cease to have force after six months, not a year.
1481 The Treasury may, under subsection (4), reduce the period by Order, but that is not satisfactory. It would be far better to provide for a duration of six months on a proper statutory basis.

§ Mr. Harold Lever
I repeat that this is temporary in intention and in impact. One of the Amendments proposed by the hon. Gentleman would be too temporary even for as good a liberal trade man as I am, since it would give us only one day after the Royal Assent. One might wonder whether our labours were worthwhile if that were to happen. However, we are now discussing his more modest proposal that the period should be six months.
I hope that we shall exercise our power to shorten the period. I hope that the situation will warrant it, but I should not like to commit the Government. If we were to err and find that we wanted it for another two months, we should be troubling hon. Members at these rather unusual hours of the night to examine the whole question again. I think it reasonable to make it 12 months, with power to shorten the period if circumstances warrant.
I hope that the hon. Gentleman feels that that is not too dusty an answer and will ask leave to withdraw his Amendment.

§ Mr. Emery
Let the Financial Secretary cast his mind back to the understandings we were given on the temporary nature of the 15 per cent. surcharge. It was "temporary" at 15 per cent. for one year and then "temporary" again for another year at 10 per cent. That is a long time to be temporary.
The Amendment is an attempt to tie the Government's hands. They may not like it, but it is no bad thing to do in this legislation. I only hope that industry realises that, when the Government speak of something as temporary, its duration is all too often very ill-defined. It is a pity that we cannot be more specific.

§ Mr. Harold Lever
I am not entirely clear what the hon. Gentleman's argument is about. We have undertaken that it shall be temporary in the most practical way open to Parliament by making it available for 12 months. If the hon. 1482 Gentleman wants to tie our hands so that we shall not renew it after 12 months, there is no means of so doing. If there were, it would not be accomplished by making the period six months. I cannot see that making it six months ties our hands to doing it for 12 months.

§ Mr. Emery
It will be within the powers of the Government to prolong it if they wish. We all know that. There is no reason why that should not be said, although it is perhaps an unfriendly thing to say. It seems to me that there is a benefit in reducing it. It is certainly much nearer my concept of "temporary" to have six months instead of 12.—[An HON. MEMBER: They will renew it again.]—That may be so, but I am for having as short a time as possible, and the Amendment seems to me much nearer to "temporary" than any other we have seen.

§ Mr. Nott
My pleasure at having the Amendment selected was only increased by my surprise at its selection.
I think that the Financial Secretary did not quite take my point, which was that as it is temporary and the Government have predicted that they will be in surplus within six months anyway—

§ Mr. Harold Lever
Good surplus.

§ Mr. Nott
It would be evidence of their confidence in their balance of payments surplus if they brought in the Bill for six months instead of a year.
But I do not wish to pursue the matter, and I beg to ask leave to withdraw the Amendment.

§ Mr. Tom Boardman
I should like clarification of subsection (4), which says: Duty under section 1 of this Act shall cease to be in force at the expiration of a period of one year …". This is a point that I raised on an earlier Amendment, when the Chief Secretary 1483 said that it would be dealt with when we reached this stage.
It is my contention that the only power the Commissioners have to retain the money is the authority under Section 1. Once the duty ceases to be in force, it must follow that the right to retain the deposit must also cease. It is the retention of the deposit—the use of the money—that is the burden placed on the importer, and it is that which must automatically terminate.
I have tried to find a source for the words Duty … shall cease to be in force because they are somewhat unusual, quite apart from hardly being grammatical. I could find no authority, but noticed in several Customs Acts such words as the provisions shall cease to have effect on a certain date, and they meant that all duties automatically ceased on that date. They are hardly a precedent for the wording here. I stress the point as being of considerable importance, because importers place their contracts a long way ahead, as the Financial Secretary knows, and they wish to know whether or not contracts they are placing for after next November will have the burden of the 50 per cent. deposit.
There has been warning that this point would be raised, and I hope that we can be informed about the view expressed, perhaps with some lack of assurance, by the Chief Secretary as to interpretation.

§ Mr. Percival
This point needs to be cleared up. For quite a long time, the courts which have had to interpret the laws we pass, have started from the premise that Parliament means what it says, but this is fast becoming a legal fiction. This is evident from the opinion expressed by the Attorney-General that, although we say this is a duty, it will not be one, and that it is a legal fiction.
It would be a good thing to go back to saying once again what we mean. The Chief Secretary says that what this means is that no duty will be chargeable after the expiry of one year, but that apart from that, everything else remains in force. I suggest that we should say that, either by saying: The duty under section 1 of this Act shall cease to be chargeable …", 1484 thus adopting the words of Clause 1, or by saying that the provision of Clause 1(1) shall cease to be in force, adopting the terminology of the Statute of which this is part. But what have we said?— The duty under section 1 of this Act shall cease to be in force I cannot get hold of the concept of a duty being enforced. A duty is something chargeable and payable; and, once it has been charged and paid, that is that. That is a closely reasoned and short point. If the Attorney-General is right in saying that, although we call this a duty, it is not really a duty but a power to extract a deposit and hold it until the Bill says it is repayable, we should read subsection (4) by substituting for the word "duty" the words: The power given in section 1 of the Act to collect a deposit and hold it until the time for repayment comes shall cease to be in force …". That will have a different effect from that which the Attorney-General says is intended. If we mean what the Government and the Chief Secretary say, let us take the opportunity to say in simple terms what we mean, instead of using an ungrammatical and unintelligible phrase.

§ Mr. Harold Lever
I find this subsection crystal clear. It says that the duty … shall cease to be in force at the expiration of a period of one year beginning with the date on which this Act is passed, or at such earlier time as the Treasury may by order in a statutory instrument appoint". Let us remove from our minds any arguments about what is or is not a duty. For the purposes of interpreting this Clause, this is a duty.

§ Mr. Lever
The hon. and learned Member shakes his head, but the Bill says that it is a duty.

§ Mr. Percival
I do not think we can have it both ways. If the Attorney-General's argument is right, and we must accept that it is, we cannot for one purpose call it a duty and for another purpose say that it is not.

§ Mr. Lever
I took the hon. and learned Gentleman's point the first time. The Attorney-General did not say that this duty was not a duty for the purposes of the Bill, since the Bill specifically 1485 refers to the deposits as duty. If the Bill calls a duty a dog's tail, it would have been for the purposes of statutory interpretation, a dog's tail. [An HON. MEMBER: "Or a dog's dinner."] Or a dog's dinner, but no such irreverent description was applied to this deposit scheme.
3.45 a.m.
In English law, therefore, this is a duty for the purpose of applying the Customs Collection Acts, and so on. It is not a duty within the meaning of a trade convention with G.A.T.T. or E.F.T.A.—it is quite another matter—because the definition of a duty for those purposes is quite different from the requirements of a statute. All that a Statute requires is that something should be defined as a duty for it to become a duty. In order for it be a duty within the meaning of E.F.T.A. and G.A.T.T., it must be of a special kind. That is what this duty or deposit is not. It is not a duty within the meaning of G.A.T.T. and E.F.T.A.

§ Mr. Percival
Fantastic.

§ Mr. Lever
The hon. and learned Gentleman finds it fantastic. Something can be a duty for the purpose of English revenue law which is not a duty for the purpose of trade conventions, which have totally different purposes in mind in defining their duties.
For example, we were dealing with a point concerning non-protective duties, which are duties for the purpose of our revenue law but are not duties for the purpose of G.A.T.T. and E.F.T.A. In other words, duties on goods which are applied impartially to home and over-sea products are not duties for G.A.T.T. and E.F.T.A. when there is no home production. Therefore, the duty is remittable under Section 6, which we were discussing earlier. However, that is a matter of no concern to the courts, because when they construe this they will construe duty as being the duty imposed by the Bill.
It is plain that what happens is that the right to impose this duty ends 12 months from the date, but any duty which has been collected—i.e., any deposit which has been collected—will be collected in accordance with the terms of the Act, which will have been in force 1486 at the date of collection, and effluxion of 180 days will make it returnable. Any other interpretation would be preposterous, because it would set the Customs the obligation to collect the duty on the three-hundred and sixty-third, three-hundred and sixty-fourth or three-hundred and sixty-fifth day to hold it for 24 hours, which is preposterous.
What my right hon. Friend said was, as is usual with him, crystal clear and common sense in that it provides for the appropriate operation of the Act and the appropriate termination of the Act in 12 months from its receiving Royal Assent. I hope that although the hon. and learned Member for Southport (Mr. Percival) is not entirely satisfied, he is sufficiently satisfied to dispose of this matter.

§ Mr. Percival
As the hon. Gentleman has said, I am not entirely satisfied with something which is silly. If what he has said is right and is what is intended, why not change one word to say what is intended— Duty … shall cease to be chargeable"? We will have said in simple terminology what we mean. Here is a chance to do it. For goodness sake, why not do it?

§ Mr. Lever
Would not the hon. and learned Gentleman equally be able to argue that it was ambiguous if we changed cease to be in force to cease to be chargeable"? I cannot see that one is clearer than the other.

§ Mr. Lever
The hon. and learned Gentleman does not agree, but we have authority for saying that cease to be in force will have the meaning explained by my right hon. Friend. I do not know why the Committee wants more than that.

§ Sir K. Joseph
The Financial Secretary is justified in his self-confidence in nearly every case, because he is very quick and adept, but would he contemplate that perhaps my hon. and learned Friends have a point of substance here? Would he not undertake, at this late hour, to have another look at this? We have 1487 Report stage ahead. Surely, nothing would be lost by the Government having another look at this.

§ Mr. Lever
I will certainly do that. In order to save further debate that does not seem unreasonable. I am asked to embody the purport of what my right hon. Friend said in unambiguous words. If these words are in the slightest degree ambiguous I will look at them and, if they need to be changed, changed they will be. I do not at the moment see any need for change, but I will do what the right hon. Gentleman has suggested.

§ Mr. Tom Boardman
Would the Financial Secretary have in mind that further Amendments provide circumstances in which duty can become payable, and I think great confusion in interpretation would be caused by the Clause as it stands. Perhaps the Financial Secretary will bear this in mind when looking again at the Clause.