Clause 34 (Hansard, 17 May 1973)

§ Sir G. Howe
I beg to move Amendment NO. 39, in page 22, line 31, leave out persistently maintained' and insert 'persisted in'.

§ Mr. Deputy Speaker (Sir Robert Grant-Ferris)
With this amendment it will be convenient to discuss Government Amendments Nos. 40, 41, 42, 43 and 44.

§ Sir G. Howe
These amendments are directed to the same purpose in relation to the powers given to the Director General under Part III to meet a point raised in Committee.
It was argued in Committee that when the Director General brought proceedings under Part III against a trader who was continuing to break his obligations to the public, too heavy a burden would be placed upon him. Under the Bill as originally drafted he would have to show that the trader had taken part in a course of conduct, that it consisted of a series of contraventions, that it had been maintained, and that it had been maintained persistently.
When I replied to the debate in Committee, I said that I saw the force of the argument to the effect that too heavy a burden was being placed on the Director in that case. I went on to argue that, on the other hand, it would not be right to enable the Director General to bring proceedings, with the substantial powers made available to him under Part III, in respect of a single act of misconduct on the part of a trader. The hon. Member for Swansea, West (Mr. Alan Williams) argued to the contrary saying that he thought that in certain circumstances even a single misdeed would be enough.
We are making changes here by replacing the words "persistently maintaining" with the words "persisted in" and by removing the words "a series of" from line 3 of Clause 34. We have lightened the burden on the Director General by making it significantly less difficult for him to establish a case against a trader who is falling down on his obligations to the public, but we have not made it so 1798 much easier for him as to expose traders to proceedings of a substantial kind in relation to one misdeed.
I hope that we have the right balance and that, on that basis, the House will accept all the amendments in this group.

§ Mrs. Sally Oppenheim
It would be churlish not to express some appreciation to my right hon. and learned Friend for tabling these amendments in response to the amendments tabled in Committee by my hon. Friend the Member for Glasgow, Cathcart (Mr. Edward Taylor) and myself.
It is with some hesitation that I advance the particular criticism that I want to make of these amendments, because yesterday so much abuse was hurled at the poor parliamentary draftsman regarding his needlework and use of English. I feel that replacing "persistently maintained" by "persisted in" almost qualifies him for an honours degree in hair splitting.
In Committee I expressed as my main concern that the Director General may find himself in the Restrictive Practices Court with the burden of having to prove a degree of persistence. My right hon. and learned Friend said that it was difficult to get this definition right. I acknowledge immediately to the parliamentary draftsman that I tried to amend the amendment and the only thing with which I could come up was "recurrently maintained", which was even worse than the amendment as drafted.
My right hon. and learned Friend's argument commended itself. He said that in some cases one malpractice could be so outrageous as to make it feasible to be raised in the Restrictive Practices Court while in other cases it would not be unreasonable to allow several such unfair practices to take place before action was taken.
I would go further. I can think of very few instances of consumer malpractices which are so outrageous on one occasion that they would not be covered by legislation other than that contained in the Bill. Or, for example, in a case where one wants to take action particularly quickly, such as a case of progressive liquidation, the malpractice would have to take place more than once to be progressive.
1799 I have purposely defeated my own argument and advanced my right hon. and learned Friend's, because I believe that is known as the "soft sell". However, I am still worried that the Director General is unduly restricted by the definition of "persisted in".
During the debate on Report, as we have moved from clause to clause we have been assembling, as it were, the corpus of the Director General. This is the clause in which we are to give him his teeth. It seems unfair that he should be given false teeth so early in his career. Therefore, I hope that my right hon. and learned Friend might consider amending the Bill further when it goes to another place to give the Director General the discretion that I welcomed so much in the amendments to clause 2.

§ Sir G. Howe
I should like to respond briefly to the observations made by my hon. Friend the Member for Gloucester (Mrs. Sally Oppenheim). We share an understanding of the objectives and difficulties in this matter. In Committee I said that there was room for considering whether we have set too high a standard of persistence, which was the point my hon. Friend was making. On the other hand, I made it clear that we were not persuaded that there should be power for the Director General to act in respect of one incident alone. I believe my hon. Friend takes the same view.
The question is whether, by altering "persistently maintained" to "persisted in", we have altered the pattern sufficiently. I should not like to form the view that this is necessarily the ultimate perfect balance that could be found unless I had found it difficult to find an alternative. My hon. Friend has talked about her "recurrently maintained". It obviously is difficult to get any better formulation than what is proposed in the amendment.
On the basis that we have significantly moved from our original position in response to my hon. Friend's amendment, I commend the amendment to the House, but I will obviously look at the matter again in the light of what has been said.