§ (Sir Richard Paget.)
§ COMMITTEE. [Progress 25th July.]
§ Bill considered in Committee.
§ (In the Committee.)
§ Clause 2 (Application of Act).
§ MR. T. M. HEALY (Longford, N.)I should like to know why the word "legal" is introduced into this clause. I beg to move its omission. Supposing a prosecution is brought under this clause, and a conviction is likely to be obtained. 177 The owner of the tolls might set up the contention that this was not a "legal" fair or market, and so the whole onus of proving the legality of it would be thrown upon the complainant. If a man takes the tolls for a fair or market that should be presumptive evidence of the legality of that fair or market.
§ Amendment proposed, in page 1, line 12, to leave out the word "legal."—(Mr. T. M. Healy.)
§ Question proposed, "That the word 'legal' stand part of the Clause."
§ SIR RICHARD PAGET (Somerset, Wells)This word was inserted, after controversy, in "another place," and I have authority for stating that the word is of importance as giving an absolutely correct definition of the scope of the Bill. I am not personally acquainted with the details of the matter; but I am assured, on the highest authority, that the Bill has been drawn with great deliberation, and that every word has teen well considered. I should think myself that the word is a necessary word, and is of itself a sufficient description, and that so far from encouraging litigation it will tend to prevent it. I hope the Amendment will not be pressed.
§ MR. T. M. HEALYWe are almost at one on this Bill. Supposing that I have a fair or a market in any country place, and it is a matter of doubt whether it is a legal fair or not, but still nobody contests my right, I choose not to set up a weighing machine, nor to comply with any of the provisions of this Bill. A man brings a pig to my market, and as I provide no weighing machine he proceeds against me. Then before the magistrates—who are most likely to be the friends of the market owner—I set up the contention that the complainant has got to prove that this is a legal market. The onus is thrown upon him, and that is all my point. I was not aware, until the hon. Baronet (Sir Richard Paget) mentioned it, that the subject had been a matter of controversy in "another place." If so, it strengthens my contention that it is a doubtful point, and I would respectfully urge that the word should be omitted. Then we should see whether the Lords would insist upon it. I think, if not, we shall be doing a very dangerous thing. If the legality of 178 any of these fairs is in doubt, all the more is it necessary that we should make them comply with the law. Then, again, the clause, as it stands, will lead to this absurdity, that a man who has a legal right will be made to do a certain thing; whereas a man who has usurped or assumed a right will not. I contend that this is the only meaning which can be attached to the word.
§ MR. CHANCE (Kilkenny, S.)I would point out, as strengthening the argument of my hon. and learned Friend (Mr. T. M. Healy), that a Court of Summary Jurisdiction has no right to try any cases of title. So that all the defendant, who is summoned by a poor prosecutor, will have to do is to say—"I demand that the person prosecuting me shall show that I have a legal market. I decline to submit to the jurisdiction of the Court until that point is settled." Thereupon, the jurisdiction will he at once changed; the prosecutor will have to go to some other Court, and a long question of title will have to be fought out. I know something about market rights in Ireland. In one case investigations had to be made back to the 17th century. To say that that ought to be done before a paltry penalty under this Bill can be recovered is an absurdity. There is an additional reason why this word should not be allowed to remain part of the Bill. It is an unreasonable and au unfair thing that a man, because he enjoys a right to which he has no legal title, should escape obligations which are bound upon other men whose rights have a legal sanction.
§ MR. RADCLIFFE COOKE (Newington, W.)I think that the danger apprehended by hon. Members opposite is not a very real one. Markets are created commonly either by prescription, or by charter, or by a private Act, and this Bill refers to au Act of Parliament passed in the year 1817–10 & 11 Vict. c. 14—and you have only to look at that Act to see what sort of markets are intended to be affected. I think we should be striking altogether against the principle on which that Act was passed if we did not include the same legal definition which is to be found in the Act of 1847. There are, undoubtedly, some public places in which something in the nature of a fair is held; but they have no legal status whatever, and it will impose a very serious burden if the 179 costly machinery rendered necessary by this Aft, which is only intended to apply to market places and towns where there is a considerable and regular trade, is to be provided there also.
§ MR. MARK STEWART (Kirkcudbright)It appears to me that the word owes its existence to a subsequent phrase in the same line, in which tolls are spoken of as being "authorized." Therefore, if we have market fairs in which these tolls are being taken, there is a definition at once. It does not seem necessary that the word "legal" should stand, and I hope my hon. Friend (Sir Richard Paget) will withdraw it.
§ SIR RICHARD PAGETWhen my attention was drawn to this word I consulted those who were conversant with the subject, and they said it was necessary. But the debate which has taken place has been sufficient to convince mo that the Bill will be just as well without the word as with it; so I will not oppose the Amendment.
§ Question put, and negatived; word struck out accordingly.
§ Clause, as amended, agreed to.
§ Clause 3 (Interpretation) agreed to.
§ Clause 4 (Accommodation for weighing cattle to be provided).
§ COMMANDER BETHELL (York, E.R., Holderness)With regard to the phrase "proper buildings or places" in line 20, I should like to ask whether we are not rather going outside the object of the Bill, which is really to provide weighing machines for cattle at markets and fairs? It is a question, in my mind, whether those words will not place a heavy responsibility on those who are responsible for the markets. It may be a very convenient thing to have all these buildings; but all that is necessary is a machine for weighing cattle.
§ SIR RICHARD PAGETThe words "proper buildings or places" are merely buildings or places necessary for the weighing machine. I do not think any objection can be taken to the words.
On the Motion of Sir RICHARD PAGET, the following Amendments made:—In page 1, line 22, before "machines," insert "weighing;" in same line, leave out "proper;" leave out the word "that," in order to insert the word "the;" and after "purpose" insert the words "of weighing cattle."
§ Amendment proposed, in line 23, after "proper person," insert "to have charge of such machines and weights, and to."—(Sir Richard Paget.)
§ Question proposed, "That those words be there inserted."
§ MR. T. M. HEALYIs not that imposing rather a severe task? Surely the man who takes the tolls might look after the weighing machines.
§ Question put, and agreed to.
§
On the Motion of Sir RICHARD PACKET, the following Amendments made:—In line 23, after "machine," insert the words "and weights"; and in line 25 add—
The market authority shall have the accuracy of such weighing machines tested twice every year by the local inspector of weights and measures, and the cost of such inspection shall be borne by the market authority.
§ Other Amendments made.
§ Clause, as amended, agreed to.
§ Clause 5 (Cattle to be weighed at option of buyer or seller) agreed to.
§ Clause 6 (Penalty for refusal to weigh cattle, or to give ticket, & c).
§ SIR RICHARD PAGETThe Amendment I desire to move at the end of this clause is to substitute for the penalty of £5 contained in it the penalty of 40s. This last I find is the penalty provided in the Act of 1847 for the minor offences referred to. The next clause deals with the more serious offence of knowingly assisting at a fraud, and here, in that, I propose to leave the penalty at £5.
§ Amendment proposed, in page 2, lines 22 and 23, to leave out the words, "five pounds," and insert the words "forty shillings."—(Sir Richard Paget.)
§ Question proposed, "hat the words 'five pounds' stands part of the Clause."
§ MR. T. M. HEALY (Longford, N.)I agree with the hon. Baronet that the penalty is too high; but, while accepting the Amendment, I would suggest to him it would be reasonable to add a minimum penalty—say, of 2s. 6d., not too high, I think, for offences of this sort, committed by the people who have the benefit of the tolls.
THE SOLICITOR GENERAL (Sir EDWARD GLARKE) (Plymouth)It would 181 be very inconvenient, I think, to adopt that course. we are familiar with the provision of a penalty not exceeding 40s.; but we have no precedent for including a minimum as well.
§ MR. T. M. HEALYYes; plenty of them—the Irish Fishery Acts; the Game Acts.
§ MR. T. M. HEALYIf the clause is to be operative at all, a minimum penalty should be provided. Who would take action in such a case, when the penalty imposed might only be a farthing? I would be satisfied if the costs followed conviction, but there is nothing said about costs. Suppose I am charged a penny for "bringing a pig to market, and do not get it weighed properly; I issue a summons, and it costs me, perhaps, 5s. before the matter is decided, and the defendant pays a farthing damages. A pretty kettle of fish. I should have made of the business.
§ SIR RICHARD PAGETOf course, as a rule, the costs would follow the verdict. I wish to make it clear that this clause only deals with minor offences; and, under the circumstances, I think it is desirable to follow the precedent of the Act of 1847 upon which this Bill is based.
§ MR. T. M. HEALYI give way on the point, provided that the Government agree that the costs in every case of conviction shall be paid by the defendant.
§ SIR EDWARD CLARKEThat is a question for the decision of the magistrate.?, who have authority under the General Act.
§ MR. T. M. HEALYYes; that is all very well for Englishmen, who have English magistrates to deal with; but we must address ourselves to the point of view that applies to Ireland. The people who will be aggrieved by the offence or neglect with which the clause deals will be butchers and farmers, a class who will have no representative on the Bench; it will be the gentlemen who own the tolls who will be represented on the Bench, and they will let off their friends. I do not think that the case will be met by the imposition of a farthing damages after conviction, and I shall move an Amendment as to costs.
§ Question put, and agreed to; words substituted.
§ MR. T. M. HEALYAnd now I propose my Amendment after the word "shillings."
§
Amendment proposed,
To add, at the end of the Clause, the words "Provided, that the costs of the complainant shall in every case of conviction be paid by the person convicted."—(Mr. T. M. Healy.)
§ Question proposed, "That those words be there added."
§ SIR. EDWARD CLARKEI hope the hon. and learned Member will not insist upon putting these words in; it will be altogether a departure from the general practice, and I do not think even those eases which come within the hon. and learned Member's own experience would justify this being done. He will see the clause deals with such matters as refusing to weigh, objecting to weigh at a particular time, or neglecting to give a docket of the weight, or giving a false weight; and on these points complaints might be made of the most trivial kind, and rather for annoyance and vexation.
§ MR. T. M. HEALYThen there would be no conviction.
§ SIR EDWARD CLARKEUnder these circumstances, I do not think it would be proper to deal with this matter in an exceptional way. I would rather leave it to the discretion of the magistrates.
§ MR. T. M. HEALYWill the Government provide that such a Proviso shall extend to Ireland? What is the use of our wrangling about it? It does us no good; it is waste paper so far as Ireland is concerned: we cannot enforce it unless you put those words into the Act.
§ SIR EDWARD CLARKEI could not consent to impose this very invidious distinction as regards Ireland.
§ Question put.
§ The Committee divided:—Ayes 50; Noes 70: Majority 20.—(Div. List, No. 325.)[2.10 A.M.]
§ MR. CHANCE (Kilkenny, S.)I desire to add, at the end of the clause, the words "and not less than half-a-crown." Without something of this kind the Act in Ireland will be little better than a 183 farce. Complainants will have to pay the costs, and the result in Ireland will be that the Act will be a dead letter. I think the Committee will consider that if a man neglects his duty he should be made to suffer to some small extent. It is idle to allow a friendly magistrate to let him off with a farthing damages.
§ Amendment proposed, at the end of the Clause, to add the words "and not less than half-a-erown."—(Mr. Chance.)
§ Question proposed, "That those words be there added."
§ SIR RICHARD PAGET (Somerset, Wells)I entirely sympathize with the desire of the hon. Member to make the Act effective: but I hope he will not press this Amendment. Although, as has been said, there are instances in Ireland where, when the minimized penalty is introduced, they are opposed to the general spirit of the law, it is unusual to introduce such in measures of this kind. I hope the hon. Member will be content to leave the Bill as it stands, which, while it gives the magistrates power to inflict a penalty of 40s. for offences of a slight character, also gives power to the Court to impose on the offender the cost of the proceedings. I hope the hon. Member will leave this to the discretion of the Court, and not introduce into the Bill a principle foreign to our legislation.
§ VISCOUNT EBRINGTON (Devon, Tavistock)I think the proposal is a reasonable one. Offences against the clause, though they might be slight in themselves, would practically make the Act a dead letter; and if a man refuses to comply with the Act, I think the minimized penalty of 2s. 6d. is not excessive.
§ MR. T. M. HEALYAfter that expression, of opinion from, the noble Viscount I hope our Amendment will be accepted. We are all at one in the desire that the farmer should not be robbed by the dealer, and to provide against collusion between the latter and the keeper of the weighing machine. If the machine keeper chooses to contravene the Act, then the minimum penalty prevents his doing so with impunity. Suppose I choose to defy the Act, I might very well do so if I had a friendly Bench of magistrates to whom the appeal might be made—not that I am ever likely to find a friendly Bench anywhere—bnt if the Bench give a decision 184 imposing a nominal fine I might go on defying the law, and find it my interest to do so. The Bill is designed in the interest of the farmer. Pressed, as he is, with foreign competition and low price, at least let him got the price for all he sells, though the price may be a low one.
§ SIR EDWARD CLARKEI do not think that anywhere a Bench of magistrates would behave in the manner the hon. and learned Member has indicated.
§ MR. CHANCEThen the provision can do no harm.
§ SIR EDWARD CLARKEI do not believe such an instance could be found in England, nor can I believe such could take place in Ireland, so long an Irish Members have seats in this house. The matters with which the clause deals vary from cases of trivial neglect to serious offences, and I think the hon. Member would defeat his purpose, that offences should be punished according to degree, and the mention of half-a-crown would seem to point out the sort of penalty that should be imposed. The hon. Member says there are certain Acts that provide the minimum penalties. Incases of penal servitude Judges are obliged to pass sentences of not less than three years——
§ MR. CHANCEThe Copyright Act mentions 40s.
§ SIR EDWARD CLARKEThat is the specified sum for which a person sues in an action-at-law—not the penalty I for offences under the law.
§ MR. MAURICE HEALY (Cork)The hon. and learned Gentleman (Sir J Edward Clarke) says the offences dealt with range from very trivial offences to others more serious; but I do not think any of the offences can be properly described as trivial. The list is not long. I will read them. They are—refusing or neglecting to weigh when required; refusing or neglecting to deliver a ticket specifying the weight, or giving a false account of the weight. It is idle to say that these are trivial offences, and I cannot see the force of the Solicitor General's argument. Then he says this Amendment is foreign to our whole system of legislation. But has he within the scope of his reading included the Irish Fishery Acts? Not only is there a minimum penalty fixed; but I have known a case in which a man got a j case quashed by the Queen's Bench because he was fined too little [Laugh- 185 ter.] It is a well-known case. The gentleman belonged to the privileged class, and he succeeded in inducing the Court of Queen's Bunch to take this extraordinary view of their duty. Over and over again in the Fishery Acts the specific fine is mentioned, and so also in some of the Game Acts, not to mention the Copyright Act. There is nothing, therefore, contrary to the spirit of English legislation in the proposal to insert a minimum penalty. No one can say we are extreme when we wish to fix that penalty so low as half-a-crown, and the opposition to our proposal is simply factious.
§ MR. H. J. WILSON (York, W.E., Holmfirth)I allow the Solicitor General ought to know law "better than myself; but, unless I am very much mistaken, there are many Acts where the minimum penalty is specified.
§ SIR EDWAED CLARKEName one such.
§ MR. H. J. WILSONVery well, I will name the law imposing a tax on dogs, and I think there are other cases.
§ MR. T. H. HEALYAs our suggestions get no consideration, I beg to report Progress on the ground that the Government do not seem to have thought about the matter, as is evident when the Solicitor General talks about trivial and grave offences; the fact being that there are only three classes of offences in the clause. We shall get no benefit from the clause in Ireland, unless we insert words that will insure its administration in the spirit we intend it should be administered.
§ Motion made, and Question proposed, "That the Chairman do report Progress, and ask leave to sit again."—(Mr. T. M Healy.)
§ SIR RICHARD PAGETI hope the hon. and learned Member will not press this Motion. I know he is anxious to see the Bill pass; he stated so the other night, and I have no doubt, from the unanimity of feeling, that we can make it a valuable measure, small though it may be. I have no doubt we can reconcile the little difference of opinion on this point. Surely it is not worth while to sit up another night over the Bill, when we might very well finish it now. I hope the hon. and learned Gentleman will consent to withdraw his Motion.
§ MR. BIGGAR (Cavan, W.)I am willing to see the Bill pass; but I certainly would advise my hon. and learned Friend to persist in his Motion, unless those who are too stiff-necked to listen to reason will give way on this small point. It is not merely the small matter of a half-crown, fine; it is a question whether rascally owners of fairs and markets shall, with the assistance of magistrates, evade the Act and allow offenders to go snot free. It would be better to lose the Bill than have it a sham in operation.
§ MR. JOHNSTON (Belfast, S.)I hope the hon. and learned Member (Mr. T. M. Healy) will withdraw his Motion. I and many others here are with him in the matter of the minimum penalty, and I shall vote for his Amendment.
§ MR. T. M. HEALYJust to show there is no ill feeling, and out of compliment to the hon. Gentleman opposite, I will withdraw the Motion.
§ Motion, by leave, withdrawn.
§ Original Question put.
§ The Committee divided:—Ayes 50; Noes 42: Majority 14.—(Div. List, No. 326.)[2.25 A.M.]
§ Clause, as amended, agreed to.
§ Clause 7 (Penalty for fraud) agreed to.
§ Clause 8 (Tolls for weighing cattle).
§ MR. T. M. HEALY (Longford, N.)I have to propose an Amendment to this clause to provide that the Bill shall not cause an increase in existing tolls; that where it is now the custom to weigh cattle the charge shall not be higher than the customary charge. I know that in some cases the charge is 1d., and I do not see why, with no more accommodation, the charge should by this Act be doubled.
§
Amendment proposed,
In page 2, line 28, after the word"authority," to insert the words "provided that in no case shall such amount exceed any amount customarily charged by the market authority for weighing; cattle prior to the passing of this Act;"—(My. T. M Healy.)
§ Question proposed, "That those words be there inserted."
§ SIR RICHARD PAGET (Somerset, Wells)One objection to the Amendment occurs to me, and that is that many markets are held under Statutes that define the amount of toll to be charged, and this amount may be in 187 excess of the amount usually charged. The Amendment would compel the continuance of the actual charge, though that may be within the limit of the charge that may legally be made. It may be that under the Statute a charge of 2d. is allowed, though, possibly, the actual charge is 1d. This Amendment would set aside the Statute. Another objection is that the Committee have inserted an Amendment making it obligatory on the Market Authority to have the machine tested twice a-year at their own expense, thus imposing; on the authority a duty whereby a certain extra expense is incurred. Also, I would point out that, as the clause and Schedule are drawn, the words are not exceeding 2d., so the cases I have suggested are provided for.
§ MR. T. M. HEALYI recognize there is something in the objections, though they do not apply to the custom in Ireland. But, however, I withdraw the Amendment now, and will consider how the point may be met on Report.
§ Amendment, by leave, withdrawn.
§ Clause agreed to.
§ Clause 9 (Power to exempt certain markets and fairs from provisions of Act).
§ MR. T.M. HEALY (Longford, N.)With the object of providing that Market Authorities should make application within a definite period to the Local Government Board, I move to omit the words "any time," in lines 37 and 38, and to insert "on or before January 1, 1888."
§ Amendment proposed, in page 2, lines 37 and 38, to leave out the words "any time," and insert the words "on or before January 1, 1888."—(Mr. T. M. Healy.)
§ Question proposed, "That the words 'any time' stand part of the Clause."
§ SIR RICHARD PAGET (Somerset, Wells)I am not sure that I apprehend the object of the hon. and learned Member. May I explain that a market may be now considerable, but it may dwindle down, and the trade become so small that there may be no reason for maintaining the weighing machine. My object is to relieve those markets that are so small as to justify exemption from the operation of the Act. The application to the Local Government Board is 188 to be renewed if circumstances still justify the exemption.
§ MR. T. M. HEALYNo doubt, there is some force in what the hon. Baronet says; but allow me to point out that there ought to be some public hearing or counterpoise to the application made to the Local Government Board, so that the public are not left unprotected. Perhaps the hon. Baronet will consider it on Report?
§ SIR RICHARD PAGETI shall be happy to do so, and if it seems necessary introduce words fixing a limited time.
§ MR. C. T. DYKE ACLAND (Cornwall, Launceston)It might be expedient also to consider whether it is desirable to provide that public notice should be given of the intention of the Market Authority to apply.
§ Amendment, by leave, withdrawn.
§ Motion made, and Question proposed, "That Clause 9 stand part of the Bill."
§ MR. T. M. HEALYIt would be better, I think, that this clause should not apply to Ireland. I do not know whether there is any objection to that?
THE PARLIAMENTARY UNDER SECRETARY ran IRELAND (Colonel KING-HARMAN) (Kent, Isle of Thanet)I think it would be an advantage to Ireland that the Bill should apply.
§ MR. T. M. HEALYThis particular clause?
§ COLONEL KING-HARMANThe whole Bill as it stands.
§ MR. T. M. HEALYI refer to the clause only. I welcome the Bill as a whole; but I think this clause leaves the public at the mercy of the proprietors.
§ MR. M. J. KENNY (Tyrone, Mid)The clause will, in Ireland, reduce the Bill to a nullity. I should be glad to see a general system of weighing; but if you allow this discretion of the Local Government Board you reduce the Act to a nullity. Let Englishmen who live under free institutions be governed by their own Local Government Board, in whom they can trust; but in Ireland, where there is constant conflict of class and class, it is necessary that the words of an Act of Parliament should be specific, allowing as little discretion as possible to Boards. I certainly would wish to see Clause 9 abolished, so far as Ireland is concerned.
§ VISCOUNT EBRINGTON (Devon, Tavistock)I thick the clause might 189 be allowed to be taken now, seeing that the bon. Baronet has agreed to reconsider it on Report. I hope, also, he will be prepared so to remodel the clause, as to require the Market Authority to give public notice of an intention to apply to the Local Government Board for exemption, and that the Local Government Board shall hold an inquiry before granting it.
§ MR. CHANCE (Kilkenny, S.)It is a novel and dangerous principle to relegate to an irresponsible body the power of saying whether an Act should or should not operate. To some modified extent, the clause might apply to Ireland; but I would suggest to the hon. Baronet that he might substitute the County Court for the Local Government Board.
§ Question put, and agreed to.
§ Remaining Clause, Schedule, and Preamble agreed to.
§ Bill reported, as amended; to be considered upon Monday next, and to be printed. [Bill 337.]