HC Deb 23 April 1969 vol 782 cc611-9

10.15 p.m.

Mr. Graham Page (Crosby)

I beg to move, Amendment No. 1, in page 12, line 41, leave out 'Board of Trade' and insert 'Treasury'.

Clause 15 purports to consolidate the law relating to the Parliamentary procedure on orders, which I might briefly call dumping orders, made by the Board of Trade. At the end of the Bill, in the Table showing the derivations of the provisions, we are informed that Clause 15 is derived from Section 11(1) of the Customs Duty (Dumping and Subsidies) Act, 1957, from Section 13(6) of the Import Duties Act, 1958, and from some Sections of the Customs Duties (Dumping and Subsidies) Amendment Act, 1968.

Subsection (1) of Clause 15 provides that a Board of Trade dumping order shall be made by Statutory Instrument which generally shall be subject to annulment procedure in this House. Subsection (2) applies the affirmative procedure if the order imposes a new duty or increases an existing duty. In that case, the order lasts for only 28 days unless the House resolves otherwise.

Subsection (3) states by whom the decision shall be made as to whether an order does or does not increase the duty and therefore whether the order does or does not require an affirmative Resolution in order to keep it alive for more than 28 days. Under subsection (3), the decision is to lie with the Board of Trade—that is to say, it is to lie with the Department where the order is made. The Board of Trade will be able to decide, therefore, whether the order increases a duty and therefore whether the House will have the opportunity of dealing with it on an affirmative Resolution or whether it will be left to the procedure by way of praying for the annulment of the order.

Under existing law, it is the Treasury and only the Treasury which can make that decision. This is because the Import Duties Act, 1932, gave power in Section 19 to the Treasury or the Board of Trade to make orders by Statutory Instrument concerning import duties. I stress that Section 19 dealt with orders by both the Treasury and the Board of Trade or, alternatively, either the Treasury or the Board of Trade. Section 19 made the same sort of provision about annulment procedures in this House if the order did not increase the duty or impose a new one. If it imposed a new duty or increased an existing duty, then it must have an affirmative Resolution of the House in order to keep it alive. The 1932 Act was followed by the Customs Duties (Dumping and Subsidies) Act, 1957, which applied those powers given by the 1932 Act to the Board of Trade when making dumping orders.

The next relevant Statute is the Import Duties Act, 1958. That repealed the provisions of Section 19 of the Import Duties Act, 1932 and substituted its own Section 13. It is under that Section that the Board of Trade and the Treasury has powers to make orders. Section 13(2) of the 1958 Act says: Any power of the Treasury or Board of Trade to make orders or regulations under this Act shall be exercisable by statutory instrument. So Section 13 of the 1958 Act applies to orders either by the Treasury or by the Board of Trade. Subsections (3) and (4) provide for the annulment procedure if the orders do not increase the duty or impose a new duty and the affirmative procedure if they increase the duty or impose a new duty.

Subsection (5) contains a provision setting out who shall decide whether the order increases a duty. I ought to read that, because it is the vital subsection, repeated partially but not accurately in Clause 15. It says: Where an order has the effect of altering the rate of duty on any goods in such a way that the new rate is not directly comparable with the old, it shall not be treated for the purposes of subsection (4) of this section as increasing the duty on those goods"— and therefore needing an affirmative Resolution— if it declares the opinion of the Treasury to be that, in the circumstances existing at the date of the order, the alteration is not calculated to raise the general level of duty on the goods. In a Section which deals with orders either by the Treasury or by the Board of Trade there is a specific provision that the Treasury shall come to a decision on the orders authorised by that Section and made by either the Treasury itself, or by the Board of Trade.

Orders made by the Board of Trade which come under subsection (5) require the decision of the Treasury as to whether they increase duty. An expression of opinion by the Board of Trade would not sufficiently come within Section 13(5) of the 1958 Act.

The draftsman of the Clause as it now appears justifies that by referring to Section 13(6) of the 1958 Act, which does no more than substitute Section 13 for the earlier provisions of the 1932 Act. If the draftsman's theory is accepted—that the Board of Trade can decide itself whether its own orders increase duty, if they are dumping orders—that theory must apply to all orders under Section 13 of the 1958 Act and this would be changing the well-established procedure of the House. I am sure that it has become well known that any import duties order which increases a duty or imposes a new duty requires an affirmative Resolution. If it is for the Board of Trade to decide whether the order increases duty, it is a complete change of procedure.

The draftsman of the Consolidation Bill seemed to think in his evidence to the Joint Select Committee on Consolidation Bills that in the case of dumping orders it was all right for the Board of Trade to make the decision. He said, referring to the subsection of the existing law: What the subsection says is that if the Treasury certify that the order imposing an import duty is not basically increasing the level of the duty, then you can treat it as an order, not a charging order, and therefore not subject to an Affirmative Resolution but subject only to a Negative Resolution. As applied to orders of the Board of Trade in this field in which the Treasury are not concerned at all, it would really be a nonsense to require a certificate of the Treasury for that point. But that is exactly what Section 13 of the 1958 Act does, and it has never been thought to be a nonsense until now.

He went on: The plain sense of it is that a certificate of the Department making the order is required". Then he admitted: I thought it was justifiable to substitute the reference to the Board of Trade. The noble Lord the Chairman of the Committee asked him: Your view is that it really means that you incorporate the substance of subsections (3) to (5), Section 13, which there refers to the Treasury, into an Act which is referring to orders made by the Board of Trade; that is what really subsection (6) means? The draftsman answered: Subsection (6) means that it is the almost necessary modification to substitute a reference to the Board of Trade for the reference to the Treasury. But that is not Section 13 or subsection (6) of that Section.

It is clear that, up to the present, under the existing law the Treasury has had to decide whether a Board of Trade dumping order increases duty, where it is not directly comparable with a previous order. Therefore, we are altering the law in this Consolidation Bill. It may be that it is right and proper to alter it in this form, but the Bill has been reported to the House by the Select Committee as containing no alterations in the law. This is a very clear alteration in the law, and the House ought to have a chance to decide whether it is right to alter the law in that way.

The Solicitor-General (Sir Arthur Irvine)

This Amendment deals with a case, unlikely to arise in the context of this Bill, in which an order possibly increasing the duty in some instances is subject only to a negative Resolution and not to an affirmative Resolution if it contains a certificate that the alteration in the rate of duty is not calculated to raise the general level of duty.

The point dealt with is that substituting a rate of X per cent. on the value of the goods for a rate of, say, Y shillings per £ may in substance be a reduction of duty but at the same time increase the duty in certain instances.

The effect of the Amendment would be that orders of the Board of Trade under the Bill for this purpose would have to declare the opinion of the Treasury instead of the opinion of the Board of Trade that the general level of duty was not raised. The hon. Member for Crosby (Mr. Graham Page) very helpfully gave notice on Second Reading of his intention to move this Amendment, on the ground that the Bill, as it stands, would change the law and is not pure consolidation. He supported this by quoting from the evidence of the draftsman before the Joint Committee on Consolidation Bills. He said that the draftsman recognised, in his evidence, that an alteration in the law was being made.

10.30 p.m.

I think that there is a misunderstanding here and a misreading of the evidence of the draftsman. I think that the draftsman was arguing that, as a matter of construction and of law, it was right for the Bill to refer to the Board of Trade. This argument was accepted by the Committee, and its acceptance of the argument made it possible for it to report, as it did, that it considered that the Bill is pure consolidation and represents the existing law. The question arises because the present law depends on the way a particular subsection in the Import Duties Act, 1968, namely, subsection (6) of Section 13, dealing with orders of the Treasury under that Act, is applied to orders of the Board of Trade under the Customs Duties (Dumping and Subsidies) Act, 1957.

Section 13(5) of the Import Duties Act, 1958, corresponds to Clause 15(3) of the Bill. It says of orders of the Treasury under the 1958 Act that they do not need an affirmative Resolution if they embody the appropriate declaration of the opinion of the Treasury.

The first passage cited by the hon. Gentleman from the draftsman's evidence dealt only with this subsection as it applies directly to these orders of the Treasury under the Import Duties Act, 1958. The draftsman was not saying that the present law requires the opinion of the Treasury to be stated in orders of the Board of Trade under the Customs Duties (Dumping and Subsidies) Act, 1957. The subsection is applied to these last orders by the joint effect of Section 11(1) of the 1957 Act and Section 13(6) of the 1958 Act.

In making this application the Acts do not contain any explicit provision adapting the reference to the opinion of the Treasury; but the draftsman's suggestion to the Select Committee was that this substitution ought to be made as a matter of law. Without it the result would not be parallel under the two Acts, in that an order of the Treasury under the 1958 Act would declare the opinion of the Treasury—that is, the Department making the order—while an order of the Board of Trade under the 1957 Act would declare the opinion, not of the Board, but of the Treasury, which not only does not make the order but is not otherwise concerned with it or with its subject matter.

The draftsmen also submitted to the Committee—this can be seen in his answer to Question No. 8 on page 3 of the Report—that, apart from the sense of the thing, there is enough in the wording of Section 13(6) of the 1958 Act to justify this substitution in the terms of Section 13(5) when transposed into Clause 15(3) of the Bill. The important point for the Committee is that these arguments were accepted by that Committee which certified that in its view the Bill did not change the law.

In those circumstances, as I understand it, it would in any event be impossible to accept the Amendment since this would have the effect of making the law on the point the opposite of what the Committee believed it to be having heard the evidence of the draftsman. The only alternative to the Bill as it stands is to continue to legislate by reference so as to preserve as nearly as may be any doubt that there is about the present law, and that would seem, I suggest to the Committee, a very undesirable outcome.

The fact that a question is raised before the Joint Committee does not necessarily mean that there is a real doubt. There are points to which it is right in our procedures to draw the Committee's attention because it is not clear without argument and explanation that the Bill does reproduce the existing law, and that is what I think happened here. The Committee then, in the procedure that it adopts, decides whether or not there is any doubt which ought to be preserved, or whether the Bill can be accepted as reproducing the existing law. In this case the Committee has decided, rightly as I believe having considered the point, that the draft Bill reproduces the existing law.

That is the argument that I venture to put forward as a ground for inviting the Committee to resist the Amendment, and the explanation that I am happy to offer the hon. Gentleman of how this matter has developed in the way that it has.

Mr. Graham Page

Perhaps I might answer the Solicitor-General on two points. First, the hon. and learned Gentleman said that it would be impossible to make this Amendment, but it is clear from Erskine May that Amendments of this kind can be accepted by the Chairman of the Committee. It has been accepted as an Amendment for debate, and surely one cannot say that the debate is purposeless. If the Committee decided that this was an alteration in the law, it would in common sense and in logic be entitled to make the Amendment, otherwise it is complete nonsense for us to be debating it at all. If I were to satisfy the Committee that the Bill altered the existing law, then the Amendment could be made by the Committee, and should be made.

My second point relates to the types of order dealt with under Section 13 of the 1958 Act. There is no doubt whatever that under that Section both types-of order, an order by the Treasury and an order by the Board of Trade, are subject to a decision by the Treasury as to whether it is an order which increases duty if it is an order which is not directly comparable with a previous order. Subsection (5) cannot be read in any other way than as dealing with two types of order referred to earlier in that Section. The earlier subsection says: Any power of the Treasury or Board of Trade to make orders or regulations under this Act shall be exercisable by statutory instrument. These are the types of order dealt with in the Section either by the Treasury or the Board of Trade.

We then come to subsection (5), which provides that the Treasury shall decide. It does not restrict it to orders made by the Treasury. It applies to orders made by the Treasury or the Board of Trade. It does not say that the Treasury or the Board of Trade shall make the decision, according to which one makes the order.

The Solicitor-General

Out of courtesy to the hon. Member I suggest to him that there is great force in the substance of the expression of opinion put before the Committee by the witness, as the proceedings of the Committee are reported. I suggest that the legal position is not at all clear, in the sense that the hon. Member has indicated. There may have been an ambiguity that it was appropriate for the Committee to consider, but what the draftsman had to say was defensible on its merits, and he reached a conclusion which the Committee thought it right to accept.

As I see it, on this point, as Section 13 is drawn up the orders under subsection (5) declare the opinion of the Treasury because it is the Treasury that makes the orders and not because the matter is one specially within the knowledge of the Treasury. So we have the position—which, as I understand it, the draftsman put to the Committee—that on a correct reading of Section 13 in a Treasury order one looked for a Treasury declaration and, by parity of reasoning, in a Board of Trade order one looked for a Board of Trade declaration.

In my proposition to the Committee a court construing Section 13 and reading it with the Customs Duties (Dumping and Subsidies) Act, 1957, would come to the conclusion, in view of the existing law, that was taken by the Committee, namely, that the declaration under subsection (6) referred to a declaration of the Board of Trade where dumping was concerned.

Mr. Graham Page

The Solicitor-General persists in saying that subsection (5), which deals with the decision to be made, related only to orders made by the Treasury. It does not say so. In fact, we must necessarily refer back to the earlier subsection, which talks about orders made by the Treasury or the Board of Trade. There is nothing within subsection (5) which restricts the orders about which it is talking to the Treasury order. It starts by saying: Where an order has the effect of altering the rate of duty —and that phrase, "an order", must refer back to the previous subsection, which mentions orders either by the Treasury or the Board of Trade—in such a way that the new rate is not directly comparable with the old, then the opinion of the Treasury is required to decide whether it increases the duty or imposes a new duty.

I do not want to labour the point. It is clear where the hon. and learned Gentleman and I differ on this point. I believe that I am justified in raising the point even though the Select Committee accepted the draftsman's argument, and I feel that the Committee should have reported to the House not that this was pure consolidation but consolidation with, say, minor Amendments. This would have drawn the attention of the House to the fact that there was this alteration—a question about which no hon. Member would know unless he took the trouble to read the Minutes of Evidence of the Joint Committee.

I think it wrong to alter the law in this respect. The present practice of the Treasury, such as vetting Board of Trade orders so that the House may have an opportunity of dealing with them by way of an affirmative Resolution, ought not to be removed, and I want to press the Amendment.

Amendment negatived.

Clause ordered to stand part of the Bill.

Clauses 16 to 19 ordered to stand part of the Bill.

Bill reported, without Amendment.

Motion made, and Question, That the Bill be now read the Third time, put forthwith pursuant to Standing Order No. 55 (Third Reading), and agreed to.

Bill accordingly read the Third time and passed, without Amendment.