HC Deb 08 May 1970 vol 801 cc764-78
Mr. Arthur Davidson

I beg to move Amendment No. 10, in page 2, line 9, after who ', insert: 'not having reasonable cause to believe there is a right to payment, '.

Mr. Speaker

With this Amendment we are to discuss No. 15.

Mr. Davidson

I need not go into great detail about the purpose of these Amendments. The words not having reasonable cause to believe there is a right to payment make the position of the sender and the rights of recipients clearer. Unless hon. Members have any doubts, I can leave it as briefly as that.

Mr. Blaker

I return to a matter which I raised earlier and about which I did not get a clear answer. It concerns the two cases of delivery by mistake to the wrong address and in substitution in a genuine effort to satisfy the customer. I welcome the words so far as they go, but I question whether they remove the possibility that a trader who delivered by mistake to the wrong address, or who delivered some other goods in substitution for those ordered because he could not supply those ordered, would commit an offence if he subsequently demanded payment.

There is a possibility that the person who received the goods would consume them, or use them. In that case, it would not be possible for the trader simply to repossess them. At least, it would not be possible for him to repossess them if the goods had been consumed, and if they had been used he would not want to repossess them, and his only course would be to demand payment. In the circumstances, everybody would agree that the trader should have the right to payment. Would he be entirely safe in demanding payment?

1.0 p.m.

Mrs. Gwyneth Dunwoody

I am afraid that during the time which we have had in which to mull things over since Committee we have found a number of shortcomings in subsection (3) of Clause 2. Our view is that the exemptions which are provided by this subsection from the penal Clauses are too tightly drawn, and in any case subsection (3)(b) deals with a case not covered by the offence anyway, and could therefore cast some doubt on the meaning of obtaining payment for unsolicited goods ". Clearly, it is necessary to protect the sender who asks for payment of goods which he has sent under a hoax order, and this has been done by providing that he must know that the goods are unsolicited before any offence is committed. Again, it is obviously not wrong to demand payment for unsolicited goods when the recipient has decided, as some do, that he would like to buy the goods, although unsolicited, and has entered into a contract. But there could also be cases where the recipient has not actually entered into a contract but the sender may genuinely believe that he has and demand payment accordingly. Thus, the recipient's wife may purport to order the goods for her husband, without actually having his authority to do so. In such a case the recipient might well have reason to believe that he had done so and demand payment. I suppose there could even be cases of hoax acceptance of unsolicited goods. The purpose of these Amendments is to provide a defence in cases where the sender demands payment or threatens to take action in the genuine but mistaken belief that the recipient is contractually bound to pay for the goods.

Clearly, the proposed Amendment also covers the case where payment is demanded in respect of a contract which does exist, because in such a case there is reasonable cause to believe that payment is due. If these Amendments are accepted, therefore, the first part of subsection (3) becomes unnecessary.

It is felt that the second part of subsection (3) as it stands could cause confusion. The offences relate to demanding payment of the price of goods under an alleged contract, or to making threats in order to secure such a payment. The offences do not apply to demands for the return of the goods—that is, to claims in fact for the goods. There is therefore no need to provide a defence for claims for the return of the goods in cases where the recipient has refused to deliver them in circumstances which make the refusal unreasonable. Such claims will not be claims under an alleged contract. It would be much clearer therefore to delete this provision.

In the interests of clarity and of providing a defence which is justified but not available on the present draft of the Bill, I hope the House will accept these two Amendments and the consequent deletion of subsection (3).

Mr. Blaker

Is the hon. Lady saying that in the cases which I mentioned a demand for payment of money would not risk exposing the trader to a penalty?

Mrs. Dunwoody

It is clear that in both cases that the hon. Gentleman postulated the trader would be protected by the defences.

Amendment agreed to.

Mr. Goodhart

I beg to move Amendment No. 11, in page 2, line 9, leave out `in the course of any trade or business '. We have been wholly non-partisan in our desire to stamp out undesirable practices. I hope that the House will forgive me if I strike a rather partisan note because my intention in the Amendment is to bring trade unions into the Bill.

Listening to our debates, one would imagine that the main practitioners of inertia selling were to be found among companies selling cook books, Christmas cards, printed paintings by handicapped artists, gramophone records, encylcopaedias or even plastic gnomes. But, in fact, the main beneficiaries of inertia selling are members of the Parliamentary Labour Party through the political levy, which is an unsolicited service for many members. This is perhaps the most important and widespread example of the inertia selling of services.

I am full of admiration for the eloquent and able way in which the hon. Member for Accrington (Mr. Arthur Davidson) has piloted the Bill. But he is a beneficiary of this type of inertia selling. I am full of admiration for the way in which the hon. Lady the Parliamentary Secretary has guided our debates. But, through the political levy, she is a beneficiary of inertia selling.

It was the well known letter of cats out of bags, Lord Shawcross, who let this cat out of the bag in 1946 during the Second Reading of the Trade Disputes and Trade Unions Bill, which changed the basis of the political levy from contracting-in to contracting-out. Lord Shawcross, then the Attorney-General, said: The truth is, of course—and l confess it quite frankly—where you have any large body of people you come up against a certain degree of human inertia, which prevents certain numbers taking any particular action. They just cannot be bothered filling in a form, whether it is a form to contract in or contract out. They cannot be troubled doing it, they cannot be bothered and they let the thing go."—[OFFICIAL REPORT, 12th February, 1946; Vol. 419. c. 209.] The force of Lord Shawcross' point soon became apparent because in 1945, the year before the Trade Disputes and Trade Unions Bill was passed, 45 per cent. of members of trade unions affiliated to the Labour Party signed their contracting-in form. In the following year, although the Labour Party was riding higher than it had been before or has been since in the affections of members of the trade union movement, the number of people who paid the political levy increased from 45 to 91 per cent. It would therefore seem that almost half of those who pay the political levy do so purely because of inertia and because of the difficulty of getting the sums of money back, because they are often quite small and it is extremely difficult to get repayment.

I do not expect the hon. Member for Accrington or the hon. Lady the Parliamentary Secretary, in a fit of consistency, to stop the main source of contributions for their political party. But I hope that when a change is made in the matter of contracting-in or contracting-out they will remember how vehement they were about the evils of inertia selling in other sectors.

Mrs. Gwyneth Dunwoody

I am rather saddened by the hon. Gentleman the Member for Beckenham (Mr. Goodhart). Until now I had always had the highest opinion of his intelligence and believed him to be reasonable and well-informed. Frankly, anyone who accepts the views of the noble Lord whom he quoted just now as being a letter of cats out of bags seems to me to be lacking in judgment. The noble Lord occasionally seems to me not so much a letter of cats out of bags as a cat inside the bag himself, and a bad-tempered and rather overwrought and not very pleasant animal at that.

Mr. John Lee

Far too polite!

Mrs. Dunwoody

I think it is rather ingenuous, but are we who have staggered all this way with this Bill to forbid the hon. Gentleman his little bit of fun? It is an interesting thought that possibly the trade unions may be providing a service! I can only say to the hon. Gentleman that I do not believe they are in the way he suggested. I believe they are protecting the interests of the people of this country and that they do so by banding together to keep those interests very much in the forefront of their minds. All I can say to the hon. Gentleman is that, if it is a service, it is a damned good service, which has served this country very well, and not just the individual members of the unions, but the national economy, and I only wish that the hon. Gentleman opposite occasionally could have such clean, helpful and nice donations given to them.

Mr. Blaker

I think the hon. Lady is misinterpreting my hon. Friend, is she not? My hon. Friend was not attacking the trade unions. His remarks were directed to the inertia effect of the levy.

Mrs. Dunwoody

I think there is some doubt whether there is an inertia levy in the way the hon. Gentleman was suggesting. I do not for one moment believe there is. Trade unionists contribute to their unions' funds, and they do so because they know they get jolly good value in return, and could not get better value anywhere else in the world.

If I may just in passing turn to the Amendment, to which the hon. Gentleman's remarks bore astonishingly little connection, I must say that I am totally mystified why it should be limited to subsection (1) of Clause 2. I must say I am thankful, none the less. The abuses with which we are concerned, both the sending of unsolicited goods and the demands of payment for them, are invariably carried on in the case of a trade or business. So is debt collection. If it is not, if it occurs in relation to an isolated attempt to sell by what one must regard as a private individual, then I think it must be so odd and unusual a case that we ought not to bring these criminal provisions automatically to bear upon it. There really is no need for this extension of the offence, and I shudder at the thought of the peculiar and innocent cases we might find we had unexpectedly caught.

I hope the House will not accept the Amendment, and I hope that in future the hon. Gentleman will take as his sources of information more reliable and responsible ones.

Mr. Arthur Davidson

I am sure the hon. Gentleman will not be entirely astonished when I say I am not prepared to accept this Amendment. One of my difficulties in knowing whether or not to accept it is in knowing whether he wishes to protect people from abuses in any field and to protect from inertia the millions of Labour voters who are unaware that when they buy Watney's beer they are indirectly contributing to the funds of the Conservative Party, or are unaware that when they go into any of several large department stores in this country and spend money there, that money goes into the funds of the Conservative Party. If I were to have an assurance from the hon. Gentleman that his Amendment would protect the vast bulk of the population I might be prepared o look again at his suggestion.

Amendment negatived.

1.15 p.m.

Mr. Arthur Davidson

I beg to move Amendment No. 12, in page 2, line 10, after ' payment ', insert: 'or asserts a present or prospective right to payment,'. As the Bill stands the Clause relates purely to making demand for payment. The Amendment would add to that assertion of present or prospective right of payment. A similar provision is made in the case of directory entries.

The purpose of the Amendment must be clear to the House. It is to cover the possibility that a sender of unsolicited goods might be able to achieve the same effect upon the recipient of making him believe that he, the recipient, owes money —the same effect as if the recipient received a demand for money—even though the assertion were not to make an actual demand for payment. The sender might say that the document he sent could not be classified as a demand for payment. In it he might say that payment is due at a future date; or he might simply assert that the recipient is under a contract to pay for goods. In such a case it might be held not to be the same as a demand for payment.

I am sure the House will appreciate the Amendment and its purpose and will accept it as strengthening the Bill in the way the House wants.

Mr. John Lee

I think my hon. Friend the Member for Accrington (Mr. Arthur Davidson) wants to go in for a belt and braces and safety pins policy in legislating in this matter. Really, there is no danger of his being embarrassingly exposed in any way. This matter is probably covered by the new provisions in the Theft Act, in Section 21, under the broad and compendious term of blackmail, and in Section 15, to which reference has already been made. Moreover, I think that the criminal law generally deals adequately with this kind of situation, and that any demand of this sort as specified here would be unlawful and would be covered by the criminal law. I do not suggest that my hon. Friend should withdraw the Amendment, but I think that he will, on reflection, probably find that his Amendment is quite unnecessary in this case, laudable though his intention is.

There is always the trouble in legislating for this sort of thing that the harder one tries to define them the more elusive a satisfactory definition seems to become. Sometimes it is best not to go to the trouble. The skill of legal drafting is, I suspect, in knowing when not to define too precisely what one wants. It is the old problem, that when one sees an elephant coming into the room one recognises it but cannot define it. I suspect that the criminal law recognises this element quite adequately without my hon. Friend's well-intentioned Amendment.

Amendment agreed to.

Further Amendment made: No. 14, in page 2, line 11 after ' goods ', insert: 'sent (after the commencement of this Act) to another person with a view to his acquiring them and not with a view only to his acquiring them for the purposes of a trade or business,'.—[Mr. Arthur Davidson.]

Mr. Arthur Davidson

I beg to move Amendment No. 13, in page 2, line 11, leave out "or unsolicited services".

Mr. Deputy Speaker (Mr. Harry Gourlay)

With this Amendment we will discuss also Amendment No. 27, in the Title, leave out lines 2 to 5 and insert: 'receiving unsolicited goods or claims in respect of entries in directories '.

Mr. Davidson

The purpose of leaving out "or unsolicited services" is very simple. In my researches and, I think, those of hon. Members who have been concerned with the Bill—there is no abuse in connection with unsolicited services other than that in respect of bogus directories. In these circumstances, with a general desire that the Bill should be neat and tidy and should not contain superfluous provisions, I think it will be generally agreed by the House that "unsolicited services" should be deleted.

Mr. Goodhart

Reverting to my nonpartisan role, may I ask the Parliamentary Secretary whether, in the view of the Department, the credit cards to which I referred on an earlier Amendment are a "good" or a "service"?

Mrs. Gwyneth Dunwoody

The hon. Member has caught me napping. Our feeling in the Department was that the abuse of which he spoke, which obviously would be most undesirable if allowed to grow, was not at present such as to require immediate examination. I take the point, however, that, unfortunately, we occasionally follow the bad fashions as well as the good fashions which come to us from across the Atlantic. The recent United States Federal Trade Commission ban was a clear indication of how this trading practice has, in some cases, grown to be a considerable abuse.

I must confess that I have not gone into the correct legal definition of whether a credit card could be taken to be goods or services. I happily assure the hon. Member, however, since he has raised this important point, that if there is evidence in this country of a growing abuse of this sort, we will obviously examine it closely. We have had only one complaint of this nature.

One accepts that if people continually find it easier to use credit cards instead of paying in cash, it may prove to be a difficulty for us in the future. If, however, the hon. Member will forgive me, I would rather define this case when we reach the stage—if it should be reached in the future—of having to introduce the necessary legislation. We do not at present have these difficulties. We shall certainly keep a close eye on developments to make sure that if there is any possibility of getting into considerable trouble with them, we shall bring the matter to the House so that it may be much more fully ventilated.

Amendment agreed to.

Further Amendment made: No. 15, in page 2, line 13, after ' who ' insert: ' not having reasonable cause to believe there is a right to payment,'.—[Mr. Arthur Davidson.]

Mr. Blaker

I beg to move Amendment No. 16, in page 2, line 15, leave out from ' goods ' to end of line 20 and insert:

  1. (a) utters any threat to bring any legal proceedings; or
  2. (b) places or causes to be placed the name of any person on a list of defaulters or debtors or threatens to do so; or
  3. (c) invokes or causes to be invoked any other collection procedure howsoever described or threatens to do so.
This is a simple Amendment. The Bill imposes penalties for threats to take certain steps all of which have been designed to extract payment where payment should not be extracted. It does not, however, impose the penalty where the action which is threatened is taken. This seems to me to be rather curious. There may be a good reason for it.

Perhaps I may explain a little further what I mean. The Bill imposes a penalty for the uttering of any threat … to place the name of any person on a list of defaulters or debtors ". It imposes a penalty for the uttering of any threat … to invoke any other collection procedure howsoever described ". It does not, however, impose a penalty for the actual placing of a person's name on a list of defaulters or debtors or for the actual invoking of any other collection procedure. This seems to me to be surprising.

I should have thought that the carrying out of the steps which had been threatened would be equally as objectionable as the threats themselves. I wonder whether subsection (2) is a deliberate way of expressing matters or whether the promoter of the Bill might be prepared to strengthen the Clause as I suggest.

Mrs. Gwyneth Dunwoody

The hon. Member for Blackpool, South (Mr. Blaker) has been very patient, and on occasions when he has tried to help we have found ourselves in disagreement. I hope that he will be pleased to know that we consider that his Amendment has some interesting arguments, that on a first hasty study we see nothing wrong with his drafting and that we are, therefore, content to see it adopted.

Amendment agreed to.

Further Amendment made: No. 17, in page 2, line 15, after ' goods ', insert sent as aforesaid '.—[Mr. Arthur Davidson.]

Mr. Arthur Davidson

I beg to move Amendment No. 18, in page 2, leave out lines 23 and 24.

I move this Amendment without overwhelming enthusiasm. Its purpose is to delete from subsection (2) the provision for a penalty on conviction on indictment of an unlimited fine or imprisonment for a term not exceeding two years, or both. The penalty would then be limited to a fine not exceeding £ 400 on summary conviction, a similar penalty being provided in the directories Clause.

My reason for moving the deletion of the threat of imprisonment from the Bill is that I am advised that the penalty is out of all proportion to a similar provision which is specifically provided for harassment in the new Administration of Justice Bill which is currently going through the House. In that Bill, the penalty for unlawful harassment is on summary conviction a fine of not more than £ 100 for a first offence or not more than £ 400 for a second or subsequent offence.

I am satisfied—and I think that the House would agree—that the circumstances in which imprisonment would ever be used by the courts would be very rare. I am satisfied also that the fine of £ 400 on summary conviction which could be inflicted in respect of every abuse, every demand for payment or every threat is a considerable one and would certainly act as a deterrent to firms which want to chance their arm and send out demands for payment in respect of unsolicited goods. In those circumstances I cannot in all conscience elaborate my reasons in greater detail and I ask the House to accept the Amendment.

1.30 p.m.

Mr. Blaker

I see the point which the hon. Member is making about the penalties intended to be proposed for harassment, but there are other aspects. The Trade Descriptions Act imposes penalties which are as severe as those contained in lines 23 and 24 which the Amendment seeks to delete. The offences created by the Trade Descriptions Act and the offences created by this Bill are equally severe, and the penalties provided by the Bill should therefore be as severe as those provided under the Trade Descriptions Act. The activities which the Bill seeks to prevent are equally unscrupulous, equally damaging and equally capable of causing great anxiety as the activities which the Trade Descriptions Act prohibits.

It is arguable that the right comparison is not with the harassment of debtors. We want to stop a practice which somewhat resembles the harassment of debtors, and we have adopted the technique of imposing a penalty for demanding payment; that is where the analogy with the harassment of debtors comes in. The evil which we are trying to prevent is equally as offensive as that prohibited by the Trade Descriptions Act, and I am in favour of retaining the penalties, although the hon. Lady may be able to convert me from that view.

Mr. John Lee

I endorse almost entirely the remarks made by the hon. Member for Blackpool, South (Mr. Blaker). My hon. Friend the Member for Accrington (Mr. Arthur Davidson) has a certain amount of logic on his side, but it would have been a little more appropriate if he had brought the penalties in line completely with those in the Administration of Justice Bill, if he is drawing that analogy. What I think is important is subsection (2)(c) which refer to a person who utters a threat— to invoke any other collection procedure… I interpret that to include people who use, or threaten to use, strong-arm procedure, which can give rise to abuse, possible violence and threats of breach of the peace and there is a case for keeping at least in reserve the penalty of imprisonment.

One could argue that the fine of £ 400 on summary conviction is possibly too high. I am not sure that courts of summary jurisdiction should be given power to impose such heavy penalties without a person having the option of going for trial. I would not have been sorry if my hon. Friend had decided to limit the penalty on summary conviction to £ 200 or even £ 100. At the same time there is a case for keeping in a provision to cover gross abuse, where there is a threat or an element of blackmail or strong-arm methods. The criminal law in general takes a severe view of this behaviour and provides penalties far in excess of these.

There has been a dramatic change in attitudes, partly because of the Criminal Justice Act, 1967, which initiated the concept of the suspended sentence. Courts do not lightly impose prison sentences, even when they have considerable discretion. It is rare nowadays, except for crimes of violence, to impose a penalty of imprisonment on a first offender. Therefore, this penalty would be imposed only in circumstances of the grossest abuse and would not lightly be imposed by a court.

Although I understand my hon. Friend's desire to err on the side of leniency in the imposition of penalties since one's general views on penology tend that way nowadays. I think that he is marginally in error in making this provision. I do not know whether he is minded to think again about this, but admirably intentioned as no doubt the Amendment is, it would detract from rather than add to the value of the Bill.

Mrs. Gwyneth Dunwoody

I regard the practices dealt with in Clause 2 (2) as abhorrent; such threats are thoroughly evil and should be soundly punished; but we may be in danger of losing our sense of proportion if we impose the severe penalty of imprisonment for such offences. Current penal philosophy discourages the use of short terms of imprisonment, and the prison sentences imposed would, therefore, be likely to be relatively long. Imprisonment might be justifiable if the maximum fine were not a sufficient deterrent, but the maximum fine is £ 400 for each individual threat to each individual person. There is also a possible fine of £ 200 for each individual demand for payment.

The new Clause which we discussed this morning provided that directors of companies should be held individually liable where their consent, connivance or neglect is involved in the commission of an offence by the company. For an isolated offence, the maximum fine is thus vastly greater than the sum which the company stood to gain; it could be 100 times as much. If the company has been pursuing a deliberate policy of making demands or threats, it should be possible to bring against it a large number of charges, one for each demand or threat.

Mr. John Lee

Does my hon. Friend think that the courts are likely to impose enormous penalties, and that there would be literally dozens of summonses treated and penalties improved in aggregate? In my experience, that is not the general practice.

Mrs. Dunwoody

I would hesitate to overrule my hon. Friend on matters of law, but as he has said that a particularly gross case might require imprisonment as a punishment, he presumably thinks that the courts would take an extremely serious view of that abuse. I am convinced that if these practices were persisted in they would take the view I have suggested. We are in a sense arguing in subjective terms and are only guessing what a court would do. I feel that a court would not treat this sort of offence lightly, particularly if there was evidence that it had been continuous. We all detest the kind of practice at which the provisions are aimed. We want to see the punishment available to fit the crime and to act as a real deterrent to those who attempt to commit such an offence.

Having thought carefully about this matter, and bearing in mind the need to keep penalties not only appropriate to the offence but properly proportioned as between the many different types of criminal offences, I must tell the House that in the Government's view it is un- necessary and would be quite inappropriate to treat these as offences suitable for proceedings on indictment or to pro- vide for any greater penalty than the Bill now provides on summary conviction.

The hon. Member for Blackpool, South said that the Trade Descriptions Act contained considerable penalties and asked why we could not use that sort of range for dealing with offences under this Bill. That Act deals with a subject which by means of national advertisement could affect millions of people. But the situation envisaged in this Bill will affect one particular person and we are talking about a different scale of problems. In this instance we feel that we have protection of a different sort which, given the circumstances obtaining at the time, is more fitted to the offence.

I realise that hon. Members who rightly feel strongly about this problem would like to see the heaviest possible fines and other means of punishing those who indulge in these practices. I cannot state too strongly my revulsion at the sort of behaviour we have been discussing in this Clause. But I hope the House will think deeply before rejecting this Amendment. We could be in danger of over- playing the situation and not realising the extent of the penalties imposed.

Mr. Arthur Davidson

I have listened carefully to what was said by the hon. Member for Blackpool, South, and also by my hon. Friend the Parliamentary Secretary, and I fully accept the reasons why the hon. Gentleman is concerned about the deletion of these penalties. Without any positive assurance that the penalty Clause will be put back in the Bill, I will give an undertaking to the House to discuss the matter with my hon. Friend.

Mr. Blaker

Would the hon. Member be prepared to leave the penalty Clause in the Bill and if on mature reflection he still believes that it should be deleted something could be done in the other place? Personally, I would be much more satisfied with that solution.

Amendment agreed to.

Further Amendment made: No. 20, in page 2, line 25, leave out subsection (3). —[Mr. Arthur Davidson.]

Back to
Forward to