HC Deb 08 May 1970 vol 801 cc753-64
Mr. Arthur Davidson

I beg to move Amendment No. 3, in page 1, line 5, leave out ' paragraph (a) or paragraph (b) of.

Mr. Speaker

This is a paving Amendment for several others which we shall take with it. They are:

Amendment No. 7, in page 1, line 13, at end insert: ' that the goods were sent to the recipient with a view to his acquiring them, that the recipient has no reasonable cause to believe that they were sent with a view to their being acquired for the purposes of a trade or business and has neither agreed to acquire nor agreed to return them, and either—'.

Amendment No. 14, in Clause 2, 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,'.

Amendment No. 17, in Clause 2, page 2, line 15, after 'goods', insert 'sent as aforesaid '.

Mr. Davidson

This is a drafting Amendment. In view of the changes proposed by Amendments Nos. 7, 14 and 17, paragraphs (a) and (b) are superfluous, and I think that it would be superfluous for me to expand on that.

As the Bill stands, "unsolicited goods" are defined as goods which, first, with a view to their being accepted for or in respect of a purchase or hire-purchase transaction, are sent to a person "; second, are received by him other than in the course of any trade or business carried on by him"; third, for which no written or verbal order originating or purporting to originate from or on behalf of the person whose name and address appear on the order form for such goods or are given at the time of a verbal order for such goods being made has been given or made. That is a rather wordy definition, and the purpose of the Amendments Nos. 7, 14 and 17 is to set out in more concise language the intention of the Bill.

Quite apart from the fact that the third element in the definition Clause— which would remove hoax orders from the scope of the Bill and thereby place recipients of all unsolicited goods in a position that the House might describe as one of uncertainty—is unacceptable, the definition itself suffered from the defect of confusing the definition of "unsolicited goods"—that is, goods sent without any prior request—and a specification of the circumstances covered by the first and second elements.

I accept that criticism. The definitions are very confusing as they stand. The words that the goods were sent to the recipient with a view to his acquiring them, that the recipients had no reasonable cause to believe that they were sent with a view to their being acquired for the purposes of a trade or business and has neither agreed to acquire nor agreed to return them are much simpler, and more adequately represent the intention of the Committee.

Mr. Blaker

I have two brief questions. The first concerns the effect of the first words of the Amendment, which require that in order to fall within Clause 1 the goods must have been sent to the recipient with a view to his acquiring them. The hon. Member said that this group of Amendments was intended to remove from the scope of the Bill hoax orders, with which we had a good deal of trouble in Committee. I welcome any provision that is intended to remove that difficulty, but I should like to know the effect of these Amendments on the cases that were referred to in Committee—cases where the goods were delivered to the wrong address by mistake by the delivery boy, or where a retailer delivered goods in substitution for the goods ordered, in a genuine attempt to help, for example, a milkman who has been asked to deliver three bottles of gold-top milk and has only one such bottle may leave one gold-top and two silver-tops in a genuine effort to be of service. What is the effect of these Amendments on that situation?

I have a later Amendment on the Notice Paper designed to deal with the possibility that anybody who sought payment for the goods in that situation would be committing an offence. If the hon. Member for Accrington (Mr. Arthur Davidson) can clear up this situation for me it may not be necessary for me to move that later Amendment. It is not only a question whether the property passes in the two cases that I have put; it is also a question whether we might inadvertently expose genuine traders to penalties, which I am sure we would not not want to do.

Secondly, I should like to know why Amendment No. 14 contains the words not with a view only to his acquiring them for the purposes of a trade or business.

Mrs. Gwyneth Dunwoody

These are drafting Amendments. I hope that the House will bear with me in explaining them because they are complicated and are best taken in easy stages. My task of explaining them is made all the more difficult because we are all used to the definition of "unsolicited goods" set out in Clause 3(1). In fact, that definition suffers from a basic defect. It tries to combine a basic definition of "unsolicited goods"—in other words, goods that are sent without any prior request for them —with a list of the circumstances in which the provisions of the Bill will affect such goods.

What is now proposed is a new basic definition—as proposed in Amendment No. 21—and the allocation of the various relevant circumstances to the operative parts of the Bill, where various other relevant circumstances—for example, the criteria in Clause 1(2)(a) and (b)—are already set out. Some of these circumstances are now changed, and new ones are added.

The first change occurs with the insertion of the words with a view to his acquiring them. Those words are common to all three Amendments and replace the words, with a view to their being accepted for or in respect of a purchase or hire-purchase transaction.' As a matter of drafting the proposed Amendment is simpler and makes the relevant condition easier to understand. The word "acquire" includes buying and obtaining on hire-purchase, and if Amendment No. 21 is accepted it will also include simple hiring.

The second change occurs with the insertion of the words, in Amendment No. 7, that the recipient has no reasonable cause to believe that they were sent with a view to their being acquired for the purposes of a trade or business. Those words replace the present reference to the goods being received … other than in the course of a trade or business. In the first place it is preferable to eliminate the expression received … in the course of a business because where the goods are unsolicited it is not appropriate to talk of their having been received by the sender in the course of a business.

Sir S. McAdden

On a point of order. I apologise to the Minister, but she has said that it is proposed to alter the Clause by a later Amendment—Amendment No. 21. I do not know whether we are in order in discussing that Amendment. What the hon. Lady is saying may be designed to help clarify the situation, and I am sorry to interrupt her speech, but we may be getting into difficult waters if we attempt to discuss Amendment No. 21 before it is reached.

Mr. Speaker

The hon. Member for Southend, East (Mr. McAdden) is quite right. It is really a question of convenience. I have no objection to including Amendment No. 21 in the group that we are discussing.

Sir S. McAdden

I have no objection, Mr. Speaker.

Mr. Speaker

In that case, we can add Amendment No. 21 to the group that we are discussing. The hon. Member for Southend, East can rest happy.

Mrs. Dunwoody

I take the hon. Member's point. I was careful to say that "if we accepted" any such Amendment, that would be the effect.

I was saying that the second change is preferable, namely, to eliminate the expression received … in the course of a business. However, the most important reason for the proposed alteration is that under the Bill as it stands the recipient has to know that the sender sent the goods to him to be received other than in the course of a business. In the case where the recipient lives on his business premises, or when the goods are suitable both for domestic and business use, the recipient may not be sure whether the statutory provisions apply to him. Again, the sender may send them not caring whether he buys them for business or domestic purposes, so long as he buys them. The proposed Amendment is intended to make the recipient's position clear from the moment that he receives the goods. Unless it is reasonably clear in the circumstances that the goods must have been sent for him to buy for use in his business, he knows that he can exercise his rights under Clause 1 by sending notice or waiting for four months.

12.30 p.m.

A similar kind of criteria is also imported into Clause 2 by Amendments 14 and 17. But in the case of the criminal offence of demanding payment for goods known to be unsolicited it is necessary to look at the sender's intentions, rather than at the situation as seen by the recipient. The effect is that the sender's liability to the criminal provisions will now depend on his own intentions at the time he sent the goods and not as at present upon how they were received at the other end.

Lastly there is the addition in Amendment No. 7 of the words has neither agreed to acquire nor agreed to return them ". These remedy a defect in the present drafting, which would permit a recipient to induce the sender not to collect the goods by seeming to agree to buy the goods or to send them back, and then at the end of the relevant period to break his word and claim the goods as a gift. I do not think we want to encourage dishonesty of this kind.

It might seem that this is an obscure and unlikely set of circumstances but one thing we have learned in dealing with this Bill is that it is not beyond the ingenuity of man to think up all sorts of ways of circumnavigating quite sensible definitions and laws. I am sorry that I have bored the House with such a long explanation, but I hope that hon. Members will agree that in the new way in which we have set this out, the Bill should be more easily understood and Heaven knows this is what we are all after. More important, it will operate more effectively.

Mr. Speaker

I would not want to leave any hon. Member in an unfair position. We have added Amendment No. 21 to this discussion. I see that the hon. Member for Blackpool, South (Mr. Blaker) has an Amendment to that Amendment suggesting that the word "directory" comes into this set of definitions. I think that he had better say a word about it.

Mr. Blaker

In reference to my Amendment to the proposed Amendment No. 21, in line 4, at end add, ' directory includes a similar compilation consisting primarily of names and addresses of persons, firms or companies '. This Amendment proposes to add to the amended definition of the Clause a definition or explanation of the meaning of "directory." My Amendment says that the word "directory" includes a similar compilation consisting primarily of names and addresses of persons, firms or companies. It is desirable that there should be an explanation of the meaning of the word in the Measure because I do not think that as things stand it is satisfactory. There may be problems arising in relation to many reputable publications. For example, the annual diary published by commercial concerns which often lists other firms engaged in the same trade or a relevant trade to the business for which the diary has been published. Without some explanation of the scope of the word "directory" there is likely to be confusion.

Sir S. McAdden

Now that we are discussing Amendment No. 21 which radically alters the existing state of Clause 3, may I intervene to say that this Amendment if accepted will lead to the early demise of one of my few Parliamentary children. As the hon. Lady knows, this Clause, hopelessly drafted as it is at the moment, was sought to be amended by me in Committee. I am glad to see that it is now being rectified and amended in much briefer language. There is one aspect of drafting omitted from the Amendment and that is the suggestion that we ought to incorporate the words, "or purporting to originate from." It may be said that to introduce words like "purporting" may make things difficult for the parliamentary draftsman, but I am fortified in my argument by seeing that new Clause 2 which he just accepted, moved by the hon. Member for Accrington (Mr. Arthur Davidson) included the words "purporting to". If it is good enough for him, it is good enough for me and I hope that perhaps at another stage of the Bill some consideration can be given to including the words I have suggested, as was intended originally.

Mr. Speaker

Order. Again I must be fair. The hon. Member for Beckenham (Mr. Goodhart) has an Amendment, No. 22, which we were to discuss with Amendment No. 21. Would he like to say a word about that now? He speaks now or forever holds his peace.

Mr. Philip Goodhart (Beckenham)

I would rather speak on this matter when we come to the question of services.

Mr. Speaker

If the hon. Gentleman can find some other place to talk about it all will be well.

Mr. John Lee

I will simply want to express a lawyer's lament over the use of the word "acquired". It is an addition to our concept of property through a useful but minor piece of legislation and not a practice to be encouraged. As I understand it, a person can either purchase goods, hire them, obtain them on a credit sale basis or have them as bailee for use or non-use as the case may be. To insert the word "acquire" into the Bill when it is obviously a matter of some importance to the operation of the legislation, and to have a definition which says that the word includes "hire" is an unsatisfactory piece of drafting. I do not want to vex the House because I think the Bill is improved by this clutch of Amendments but I do wish we had a little more precision.

Mr. Goodhartrose —

Mr. Speaker

Order. I see that the hon. Gentleman has had second thoughts. Mr. Goodhart.

Mr. Goodhart

Perhaps it would be as well if I said something about Amendment 22 now rather than in the debate about services. I am uncertain as to whether the credit card is "goods or services" for the purposes of the Bill. As it seems that unsolicited services are to disappear from the Bill we should have a word about credit cards. Whatever happens to unsolicited services I hope that we will keep unsolicited credit cards within the ambit of the Bill. This is not a particular problem here at present, but we know that many retailing practices follow the fashion set in the United States. In the last four years in America over 100 million credit cards have been distributed, many to people who have not asked for them or made an application. In America this practice is fostered largely by the banks, and the great majority of these 100 million credit cards have been distributed by the banks —although not necessarily to their clients, for it has been estimated that more than one-third of these cards have been sent to people who have no connection with the bank at all and on whom no checking has been carried out. Many credit cards have been sent to the wives and even to the children of clients of the banks and some to infants under one year of age. As the father of seven, I view with some alarm the idea that credit cards could be sent unsolicited to young children who could then run up substantial hills for which, presumably, I should be liable.

I do not wish to stamp out the reputable credit card movement in this country. Indeed, I have two credit cards and I use them from time to time and find them most useful. But the practice of sending credit cards to people who have not asked for them could lead to difficulties and to trouble on the domestic front. The possession of a credit card is an inducement to purchase goods or services in respect of which one might think twice if one had to pay cash. I do not seek in any way to inhibit the orderly expansion of the credit card movement in this country, but the practice of sending credit cards to those who have not asked for them, and in many cases to those whose credit-worthiness has not been checked in any way, should be controlled by the Bill.

Mr. Arthur Davidson

I was intrigued by the speech of the hon. Member for Beckenham (Mr. Goodhart), for I was not aware of those problems. Indeed, as other hon. Members said during the course of our debates on the Bill, we are constantly learning something new. I hope that when the hon. Member takes me to dinner at the Savoy, which I am sure is uppermost in his mind, he will use his credit card.

But however much concern he may feel, rightly, about the practice to which he referred, it would be wrong to pass his Amendment. Credit cards are sent free, whereas the Bill is concerned with preventing purchasers who receive unsolicited goods from being charged for them. It does not ban the sending of unsolicited goods. If a credit card company sends one of its cards to someone who does not like it, it is in any case a free gift and he need not use it. While, therefore, I appreciate the motives of the hon. Member's Amendment, I do not think that it would be right to include such a provision in the Bill.

Mr. Goodhart

Credit cards are sent entirely free—I am talking about the main bank cards in the United States—but if one does not settle one's bills within 25 days, there is a service charge of 1.5 per cent. per month, which means that they are charging at the rate of 18 per cent. for servicing the bill. It could be quite an expensive free gift.

12.45 p.m.

Mr. Davidson

I presume that the charge would operate only if one used the credit card. If someone were daft enough to use the credit card, the Bill could not be framed in such a way as to protect him.

The hon. Member for Blackpool, South (Mr. Blaker) spoke about directories and wished to amend the Clause to include a similar compilation consisting primarily of the names and addresses of persons, firms and companies. I fully appreciate why he wants to widen the definition of "directory". None of us wishes to see a directory publisher get round the regulations by calling a directory by some other name, such as a trade gazette. I am, however, assured that an elaboration of the word "directory" is unnecessary and that the natural meaning of the word includes similar compilations as described by the hon. Member, as well as directories which could be described as year books. In the circumstances, on the advice which I have received, I am satisfied that the word "directory" will include any other similar compilation and that the words which the hon. Gentleman suggests are unnecessary. In fact, they could do more harm than good, because by inserting them we might unwittingly narrow the scope of the Bill. While sympathetic to the hon. Member's motives, therefore, I feel that I should not accept the Amendment.

Sir S. McAdden

Will the hon. Member deal with my suggestion to include" or all purporting to"?

Mr. Davidson

I admire the hon. Member's considerable parliamentary skill. First he attacks the wording of my Clause and then he uses my Clause as an excuse for including other words which he wants included. Having great respect for him, I will look at the point which he made.

Amendment agreed to.

Mr. Arthur Davidson

I beg to move Amendment No. 4, in page 1, line 6, leave out' has received' and insert: 'after the commencement of this Act receives'. The House will agree that the Amendment is not only self-explanatory but necessary. As the Bill stands, its effect would to some extent be retrospective, and in my short time in Parliament I have learned that retrospective legislation is not looked upon very kindly by the House.

If these words were not included, the right to treat unsolicited goods as gifts would become available in respect of unsolicited goods received in the past which, during the period of four months from their receipt, had not been repossessed by the sender and in respect of which the recipient had not unreasonably refused to permit the sender repossession. The same right given under the Bill as it stands would become available under subsection (2)(b) in respect of goods received within a period of three months of the Bill coming into force. The recipient, for instance, might have written to the sender asking him to take the goods back, and if he had done this within 30 days, the goods would become the recipient's, even though the Bill had not come into force.

In other words, while the whole purpose of the Bill is to stamp out the sending of unsolicited goods and to penalise those firms which indulge in it, this would be penalising firms for acting in possible contravention of a law which did not exist then. While there is an argument for leaving in the existing words, natural justice and a desire for at least certainty to know when one's legal obligations begin lead me to believe that it is right to insert the words suggested, and I hope that the House will feel the same.

Amendment agreed to.

Mr. Arthur Davidson

I beg to move Amendment No. 5, in page 1, line 7, leave out from the ' to sender ' in line 9.

Mr. Speaker

With this we are to discuss Amendment No. 9.

Mr. Davidson

The effect of the two Amendments is to delete the present definition of "sender" which is embodied in subsection (1) and to substitute a better definition in the form of an additional subsection (4). The existing definition of "sender" is: A person by whom or on whose behalf they were sent". It is the nature of that other party in relation to whom the recipient of unsolicited goods may, in the circumstances set out in subsection (2), treat them as a gift, but it is conceivable that someone intent on inertia selling could sidestep Clause 1 by assigning to another his rights in the goods which he had sent and that other person could claim title to the goods and the whole point of Clause 1 would be nullified.

Mr. John Lee

Is not this point covered by the general law of agents?

Mr. Davidson

It may or may not be. I do not feel disposed to enter into legalistic discussion at this time. I am satisfied that the words would improve the Bill and make the definition of "sender" much clearer.

Amendment agreed to.

Mr. Arthur Davidson

I beg to move Amendment No. 6, in page 1, line 10, leave out from ' and ' to end of line 11 and insert: ' any right of the sender to the goods shall be extinguished '. The purpose of the inclusion of these words is self-explanatory. This is what I would regard as a matter of super-caution. It is to make it clear beyond doubt, if the sender manages to recover the goods, that the recipient has the sender's title to them. I need not elaborate. It makes it clear beyond peradventure that the recipient may keep the goods and treat them as a gift.

Amendment agreed to.

Further Amendments made: No. 7, in page 1, line 13, at end insert: 'that the goods were sent to the recipient with a view to his acquiring them, that the recipient has no reasonable cause to believe that they were sent with a view to their being acquired for the purposes of a trade or business and has neither agreed to acquire nor agreed to return them, and either—'.

No. 9, in page 2, line 8 at end insert: (4) In this section "sender", in relation to any goods, includes any person on whose behalf or with whose consent the goods are sent, and any other person claiming through or under the sender or any such person.—[Mr. Arthur Davidson.]

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