HC Deb 06 December 1911 vol 32 cc1531-43

(1) Sub-section one and Sub-section three of Section eighty-two of the Burgh Police (Scotland) Act, 1903, shall respectively be amended by the omission of the words "an ice-cream shop or aerated-water shop" occurring therein and by the insertion in lieu thereof of the words "a place for public refreshment at any time between the hours of eight of the clock at night and five of the clock of the following morning."

(2) Sub-section two of the said Section shall be amended by the insertion after the word "daily" occurring therein of the words "except on Sundays, when the by laws may provide for closing throughout the day or for any specified hours; and to make by-laws regulating the internal construction and arrangement of such premises with a view to the orderly conduct and control thereof;" and Sub section four of the said Section shall be amended by the insertion at the end thereof of the words "provided that no by-law made in pursuance of the powers conferred by this Section shall take effect until it has been confirmed by the Secretary for Scotland."

(3) Sub-section five, and the word "constable" occurring in Sub-section three of the said Section shall be repealed.

(4) Any reference to Section eighty-two of the Burgh Police (Scotland) Act, 1903, in that Act or in any other Act shall be construed as a reference to that Section as amended by this Act, and where the said Section has prior to the commencement of this Act been adopted by a town council or a county council it shall after such commencement be deemed to have been adopted as so amended.

(5) Section three hundred and eighty of the Burgh Police (Scotland) Act, 1892 (whereof the marginal note is "Penalties for offences"), shall, so far as required to bring Sub-section two and Sub-section six thereof into operation in a county out-with burghs and police burghs, have effect throughout the county as if it were herein re-enacted with the substitution of the county council for the magistrates, and offences thereunder may be tried summarily.

(6) Any person who is convicted of an offence under Sub-section two of Section three hundred and eighty of the Burgh Police (Scotland) Act, 1892, or the corresponding Section or Sub-section of any local Act, or under Section seventy-six of the Licensing (Scotland) Act, 1903, shall, in addition or as an alternative to any other penalty, be liable in the discretion of the court to have his name removed from any register provided under Section eighty-two of the Burgh Police (Scotland) Act, 1903, as amended by this Act, for such period not exceeding six months as the court shall order.

(7) Nothing contained in Section eighty-two of the Burgh Police (Scotland) Act, 1903, as amended by this Act, shall affect or prejudice the sale or supply of refreshments or provisions in any premises to persons residing or lodging therein, or at any railway refreshment room; or shall be construed as allowing any premises to be kept open at any time at which they are required under the provisions of the said Act or any other Act for the time being in force to be kept closed, or (except as expressly provided) as affecting or derogating from the provisions of the said Act or any other Act respecting the right of entry to or other regulation of premises to which the said Section eighty-two-applies.


I beg to move to leave out Sub-section (1), and to insert instead thereof, (1) Sub-section (6) of section three hundred and eighty of The Burgh Police (Scotland) Act, 1892, shall be amended so as to read as follows:— Being the occupier of a building or other place of public resort for the sale or consumption of provisions or refreshments of any kind, or for the sale or consumption of tobacco or cigars, opens his promises for business (a) at any hour on Sunday, or (b) on week-days before five of the clock in the morning, or keeps them open, or does business therein after ten of the clock at night, unless and in so far as specially allowed by the magistrates. This Amendment is identical with one which I moved in Committee. The suggestion came through the Glasgow Corporation, and through the Convention of Royal Burghs, and I think, if we are to pay regard to local opinion, we should be guided by the strongly expressed demand of this important aggregation of representative experience. The Second Reading of the Bill went through without objection, and I think without discussion, some little time before the Coronation. I had always intended to move an Amendment in Committee, but at that festive season I did not give as long notice as I might otherwise have done. The Amendment came before the Scottish Grand Committee, and the Lord Advocate intimated his inability to accept it. It had a very brief discussion, and on the Lord Advocate's promising to bring in an alternative Amendment—which I believe is the new Clause he has recently moved, but which does not meet the whole case—I withdrew the Amendment at that stage of the Bill During the Committee stage the opinion of Scottish Members was not very settled, but it has crystallised since, and there is now I believe a large majority of Scottish Members in favour of the proposition I now make. This is a Bill to regulate and control ice-cream shops, not on account of the deleterious character of the article they sell, but because the shops are admittedly centres of moral infection. There is drinking in shebeens, and they offer shelter to prostitutes, especially those of tender years. Even quite young children coming in for sweets have been subjected to the most unspeakable criminalities. I may claim to have made some special investigation into this matter. I have been out with detective inspectors in Glasgow, Edinburgh, and other large towns; I have conversed with social workers of all kinds; I have read the sworn evidence of police constables; I have talked with governors of prisons, and physicians, and there is no reason whatever to doubt that large numbers of young girls owe their fall to the bad company they have met in these places.

That is really the point of my Amendment. The police can place their fingers on the actual ice-cream shops. That is the kernel of my Amendment, because there is a dilemma that must be faced. Firstly, that a narrow definition of shops may be valuable. Secondly, a wide definition of shops may be so wide that it may well include shops which ought not to be included, and the law will therefore be a dead letter. We have already had a painful experience of the first part of the dilemma. The definition in 1903 was an "ice-cream shop and aerated water shop." The proprietors were occasionally prosecuted. They said: "You have got the wrong man," my staple trade is not ice cream, but fried fish and brandy balls." The man was dismissed, although the police knew perfectly well he was the man they wanted. The definition in the Bill has been made wider, but nearly all the local authorities in Scotland think that the powers of the Bill are so wide that they will fear to exercise them. They will hesitate to burn down the house for the sake of roasting the pig. The alternative that I submit gives certain powers to the magistrates. It allows some discretion to the magistrates to decide. It is open to objection, but I have it on the authority of those well qualified to judge that it will work in practice. At any rate there is a very real fear that the Bill as it stands will not be enforced. I desire to do something definite to blot out what are well-known in Scotland to be veritable plague spots, and intolerable in the twentieth century. I beg to move my Amendment.


I beg to second the Amendment. My hon. Friend has gone over the ground so thoroughly that I think the House must fully understand the important question with which the Amendment deals.


I cannot agree with the hon. Member who moved the Amendment that the Scottish Grand Committee did not carefully consider this question. They considered the two rival proposals, and they agreed upon the new Clause which has just been adopted. The Grand Committee unanimously embraced my proposal, and rejected that of my hon. Friend.


I withdrew the Amendment.


If the Amendment of my hon. Friend were carried we should require to delete nearly all the Clauses of the Bill, because it strikes at the root of this Bill. If my hon. Friend carried his Amendment we would require to delete nearly all the other Clauses of the Bill, because what he proposes is this, that certain lawful businesses in Scotland carried on as temperance refreshment shops should be absolutely closed at ten o'clock at night, and that if the innkeeper desires to do business-later than ten o'clock he must ask the magistrates for permission to do so. The magistrates might grant it or they might refuse it. They might grant it to one man and refuse it to his neighbour, they might pick and choose amongst the various people who carried on that lawful business, and give an extension to one and no extension to another. That, I submit, would be a very dangerous power to put into the hands of a local authority. It would give rise to invidious distinctions being made and to favouritism to the very serious detriment of business in Scotland. If my hon. Friend will be good enough to look down the Paper he will see Amendments in my name giving the local authorities power to exclude different branches of trade, not only in the whole area under their jurisdiction, but in selected parts of the area; and these powers will give full effect to the desires of my hon. Friend. If this Clause of my hon. Friend was carried it would destroy the whole essence of the Bill. The essence of the Bill is to set up a register upon which you would place all the refreshment traders who carry on business on Sundays and after eight o'clock at night, and who open before five o'clock in the morning. You place all those people under the surveillance of the local authority and you give the local authorities power to inspect at all hours and power to regulate the internal construction of the premises. To this last power I attach the very highest importance. It appears to me that this power by itself is quite sufficient to obviate all the different objections that have been raised, and I would invite the House therefore to take the Bill as presented. It really gives the local authorities very large powers, larger powers than we would give them had it not been for the decision of the Courts, which renders our present legislation inoperative. It is to make that legislation effective that this Bill is propsed, and in these circumstances I ask my hon. Friend not to press his Amendment.

Captain MURRAY

Do I understand the Lord Advocate to say that his later Amendment will allow one class of shop to shut in one district and open in another?


No Sir; there will be no selection or discrimination, and we shall close all in that particular area.


Will the local authorities have power to remove them from the register?


For offences.


I hope the Lord Advocate will reconsider his decision to oppose this Amendment. I do not think there is any danger in giving this power to local authorities. If they misuse that power, they could be turned out on the next occasion when they come up for the suffrages of the electors. There is a very strong evidence from some of the towns of Scotland that the powers of discrimination under this Amendment is strongly desired.


I rise to ask, in view of the widely different views of Scottish Members, that the Government will not put on the party Whips but allow us to come to an independent decision on this Amendment.


Why cannot hon. Members opposite vote anyhow, whether the Whips are on or not? If they have convictions, why cannot they express them in a proper way? With regard to the Amendment, I agree with the Lord Advocate. I do not see how you can give powers of discrimination to local authorities between shop and shop, because that would lead to confusion and a great deal of injustice. I think this places a very invidious power in the hands of the magistrates which they certainly ought not to be asked to exercise. There are certain classes of people in this trade who are perfectly respectable and carrying on quite an honourable business, and in places like Aberdeen they meet a want in regard to people arriving by steamers. I do not think under the Lord Advocate's Clause it would be permissible for the magistrates in Aberdeen to give a general permission to carry on this trade except on a special occasion for a special night. I am afraid that this is rather a cumbrous process, and one which is not likely to work in practice, and one which is likely to perpetrate considerable injustice. It is too late, I am afraid, to make any change, but if the Lord Advocate could provide for the point I have made it would take away any objection I have to the Amendment.


As one who has been for a considerable number of years a member of a local authority, I ask the House not to accept this Amendment. Is it seriously contended that local authorities shall say to people in a district that they cannot sell a cup of tea or coffee, a bottle of lemonade or an ounce of tobacco after ten o'clock without the consent of the local authority? I could not possibly support such an Amendment.


I wish to join in the appeal made to the Lord Advocate not to put on the Government Tellers, and allow hon. Members to come to an independent decision on this question for this reason. There are two alternative policies before the House. We have to regulate shops which provide refreshment. An attempt has been made to discriminate between those whose operations are perfectly legitimate and harmless and those which have an extremely deleterious effect. That attempt has broken down. The remedy proposed by the Lord Advocate is that certain areas should be scheduled and that the local authority should have power to discriminate only between the areas and to close all the shops in a particular area, but that in another area they should be allowed to remain open quite independent of their character. In other words, the wrath of the Lord Advocate or of the local authority is, within a certain area, to fall upon the heads of the just and the unjust alike. Our contention is that the whole difficulty has arisen because of the impossibility of discriminating not between areas, but between shops whose effects are perfectly harmless and fill a legitimate want and shops whose effects are deleterious. The local authorities are the proper people to be given the right of saying to a shop, "You are conducted on perfectly harmless lines; you are fulfilling a public want," and to turn to another shop in the same area, possibly next door, and say, "Your shop has been the centre of moral deterioration, the police have long had their eye on you, and we intend to do everything in our power to close you on Sundays and at ten o'clock" Surely it is not so much to ask that the local authority should have that power. I shall certainly support the Amendment.


I do not know whether the Lord Advocate has been, like many other Scottish Members, inundated with letters pressing us to accept the Amendment. Members sitting on this side at their Committee meeting upstairs decided to support the Amendment, and I appeal to the Lord Advocate not to allow the Whips to tell against us, and that in I his matter the Scottish local opinion should be free to express itself, and the responsibility shall rest upon each man, and it shall not be looked upon as an act of disloyalty to vote against the Government.


I wish to join in the appeal to the Lord Advocate. This is a matter on which Scottish opinion is very distinct, and I think very well informed. We are all aiming at the same object. I feel bound to support the Amendment. I believe the local authority in Scotland will exercise rightly and well the right of discrimination.


I am glad to see that the Liberal conscience is at last awakened. But it does seem strange there is not enough backbone among the Scottish Members opposite to vote according to their consciences, whether the Government like it or not. I shall vote according to my conscience, and I shall support the Lord Advocate and the Liberal Government. We are all aiming at exactly the same object. I understand the Lord Advocate's idea is that certain rules should be made, because it would not be fair to let the local authority discriminate as between one shop and another, as that would raise very awkward questions. The disadvantage is that in order to shut up one bad shop you might have to shut up the shops in a whole area. But I understand there is a saving Clause in the Schedule by which if one shop disobeys the law and the rest comply with it the one shop may be shut up under the Act. Therefore, I cannot see any objection to what the Lord Advocate proposes.

Captain MURRAY

I have followed closely what was said by my hon. Friend the Member for South Aberdeenshire, viz., that if this Amendment were carried it would be possible to shut up shops in which people get a cup of tea. But that is certainly a power conferred by the Bill at the present moment. If the Amendment is carried it would, as I understand, allow the local authority to keep these shops open and yet to shut up shops like ice cream shops which are injurious and deleterious in their character. Personally I should be inclined to support the Amendment of the hon. Member for Montrose Burgh, but I feel myself in some difficulty. The Lord Advocate said, in his opening statement, that if this Amendment were carried it would mean the deletion of practically the whole of the rest of the Bill. If that be so, I would ask the hon. Member for the Montrose Burghs how he proposes to give effect to his Amendment, seeing that there are no consequential Amendments on the Paper to carry out its object. Under the circumstances if the matter goes to a Division I shall be unable to support the hon. Member unless he can show how the Bill will not be killed. Would it be possible to withdraw the Bill to-night and bring it in again on a subsequent day, thereby enabling the necessary Amendments to be placed on the Paper?


There is one argument I would like to put before the House. Several times the House has endeavoured to pass a Shops Bill, and to make regulations from headquarters to meet the needs of various localities under the Amendment of the hon. Member for Montrose Burghs, power is given to the local authorities to settle matters for themselves, and I hope hon. Members will take that matter into consideration when they go into the Division Lobby.


Do I understand the Lord Advocate to say that this Amendment will meet the same object as the Amendment of the hon. Member for Montrose (Mr. E. Harcourt)?


I understand that the purpose of this Bill is to enable the local authorities to deal with an ice-cream shop which is badly conducted. I should like to know from the Lord Advocate whether, according to the scheme of the Government, the only remedy proposed is to close all refreshment shops in a particular area, the guilty one and all the innocent ones. If that is so, it seems to me that the hon. Member for South Aberdeen will find himself in a much worse position than he would be under the Amendment of the hon. Member for Montrose. I would suggest that it is a roundabout way of stopping a refreshment shop that is badly conducted to have to schedule an area and stop the sale of refreshments, teas, cigars, etc., in the whole area, instead of shutting up the particular shop. I agree that there is a certain risk, when a power of this kind is entrusted to a local authority, of its beng abused, but if you have to choose between allowing these ice-cream shops to remain open with all their evils, and running the risk of a magistrate being ill-advised or partisan, or desiring to encourage them, then I should certainly say give the local authority the power and run the risk of their administering it fairly in order to put down this evil, rather than run the risk of scheduling the whole area and stopping the supply of refreshments in that area after hours.


There is no doubt whatever that if my hon. Friend's Amendment is carried then this Bill becomes a totally different Bill from the one which was read a second time by the House. There is no doubt whatever that every Clause in the Bill would be wholly inapplicable. Let the House clearly understand that the measure which passed the Second Reading, and which the Scottish Members upstairs in Committee accepted, was a measure amending Section 82 of the Act of 1903, and which applied all the stringent regulations of that Act to all temperance refreshment places, because the Court had so interpreted the definition of ice-cream shops as to render that legislation of 1903 inoperative. The hon. Member for Forfar (Mr. Falconer) has asked whether, if a shop conducts its business badly and commits an offence it can be closed. Of course it can. The lease can at once be taken away.


Any shop in the area?


Yes, if you prove the offence undoubtedly you can stop them. Let the House remember the important regulation under this Bill, to wit, the power to regulate the internal construction and arrangements. Everybody who has given any attention to the question has come to the conclusion that that one by-law will be sufficient to meet objections against the way in which these businesses have been conducted. If you have, in the first place, the power to close which the Bill confers, and, secondly, the power to regulate the internal construction and arrangements, you will bring these shops completely under control, if you take these powers along with the power of inspection.


Will the Lord Advocate say whether it is the fact that the difficulty is to prove the offence?


That is the great difficulty, and that is the reason why the by-law I am providing in this Bill will obviate the great inconvenience that has been felt.

Captain MURRAY

What would be the effect on the Bill if this Amendment were carried?


The effect would be to delete all the other Clauses in the Bill.


For once in a way I think the Lord Advocate is right. What influences me most in this Debate is the whining appeals made to him by some of my colleagues that, in order they may follow their own consciences the Government should withdraw their Whips. It seems to me it is really a more liberal and free way of dealing with this matter to give some power to the local authorities, and if by-laws are enacted so that the building arrangements of these shops can be altered to suit the necessities of supervision a great deal of the evils will be overcome.


The desire of the Edinburgh and Glasgow Corporations is most distinctly that the power should be given to the licensees' premises in their own option. The matter will not rest in the hands of one individual magistrate, but with the whole bench of magistrates which issues the licence, and, therefore, any difficulty or doubt as to the fair administration of their powers may be entirely removed. There is no doubt whatever ample justice will be done. There is an absolute necessity that these licences should be under the power and control of the local authorities.


I have had considerable experience of municipal government, and I have not been convinced by those Gentlemen who, no doubt, with the

most excellent intentions, have spoken in favour of the Amendment. I am strongly in favour of the Lord Advocate's Amendment. We must be very careful in trying to get at an evil not to pass a law which will open the way to what, I believe, will be a very serious state of affairs. We are not only dealing with Glasgow and Edinburgh, but with corporations and public authorities of towns of a few thousands and even hundreds, and the magistrates comprise men engaged in competing industries.

Question put, "That the words of Subsection (1) down to the word 'at' ["at any time between the hours"] stand part of the Sub-section."

The House divided: Ayes, 131; Noes, 29.

Division No. 431.] AYES. [11.30 p.m.
Acland, Francis Dyke Greig, Col. J. W. Raffan, Peter Wilson
Agnew, Sir George William Gretton, John Rawlinson, John Frederick Peel
Ainsworth, John Stirling Guest, Hon. Frederick E. (Dorset, E.) Rea, Walter Russell (Scarborough)
Allen, Charles Peter (Stroud) Gulland, John William Roberts, Charles H. (Lincoln)
Armitage, Robert Hancock, J. G. Robertson, J. M. (Tyneside)
Ashley, Wilfrid W. Harmsworth, Cecil (Luton, Beds.) Robinson, Sidney
Baird, John Lawrence Harmsworth, R. L. (Caithness-shire) Roe, Sir Thomas
Baker, Joseph A. (Finsbury, E.) Harvey, T. E. (Leeds, West) Rose, Sir Charles Day
Banbury, Sir Frederick George Haworth, Sir Arthur A. Russell, Rt. Hon. Thomas W.
Bathurst, Hon. A. B. (Glouc., E.) Henry, Sir Charles Samuel, Rt. Hon. H. L. (Cleveland)
Benn, W. W. (T. H'mts., St. George) Higham, John Sharp Samuel, J. (Stockton)
Bentham, G. J. Howard, Hon. Geoffrey Samuel, S. M. (Whitechapel)
Black, Arthur W. Hughes, S. L. Sanders, Robert Arthur
Booth, Frederick Handel Illingworth, Percy H. Scott, A. MacCallum (Glas., Bridgeton)
Bowerman, C. W. Jardine, Sir J. (Roxburgh) Seely, Col. Rt. Hon. J. E. B.
Brace, William Johnson, W. Sherwell, Arthur James
Bridgeman, W. Clive Jones, Leif Stratten (Notts, Rushcliffe) Shortt, Edward
Bull, Sir William James Jones, William (Carnarvonshire) Simon, Sir John Allsebrook
Byles, Sir William Pollard Jones, W. S. Glyn- (Stepney) Smith, Albert (Lancs., Clitheroe)
Carlile, Sir Edward Hildred King, J. (Somerset, North) Smyth, Thomas F. (Leitrim, S.)
Cave, George Lawson, Sir W. (Cumb'rind, Cockerm'th) Stanley, Hon. G. F. (Preston)
Cawley, Sir Frederick (Prestwich) Levy, Sir Maurice Stewart, Gershom
Cecil, Evelyn (Aston Manor) Lewis, John Herbert Strauss, Edward A. (Southwark, West)
Chaloner, Col. R. G. W. Mackinder, Halford J. Summers, James Woolley
Chancellor, Henry George McKenna, Rt. Hon. Reginald Sutton, John E.
Clough, William M'Laren, Hon. F. W. S. (Lincs., Spalding) Taylor, John W. (Durham)
Collins, Stephen (Lambeth) Malcolm, Ian Thorne, G. R. (Wolverhampton)
Cowan, W. H. Markham, Sir Arthur Basil Toulmin, Sir George
Craig, Herbert J. (Tynemouth) Menzies, Sir Walter Trevelyan, Charles Philips
Craig, Norman (Kent, Thanet) Middlebrook, William Tuillbardine, Marquess of
Dalrymple, Viscount Mond, Sir Alfred M. Ure, Rt. Hon. Alexander
Davies, Ellis William (Eifion) Montagu, Hon. E. S. Ward, W. Dudley (Southampton)
Davies, Sir W. Howell (Bristol, S.) Morton, Alpheus Cleophas Waring, Walter
Dawes, J. A. Muldoon, John Webb, H.
Doris, William Needham, Christopher T. White, J. Dundas (Glasgow, Tradeston)
Doughty, Sir George Newman, John R. P. Wiles, Thomas
Duncan, C. (Barrow-in-Furness) Norman, Sir Henry Wilkie, Alexander
Duncan, J. Hastings (York, Otley) Nugent, Sir Walter Richard Wilson, W. T. (Westhoughton)
Essex, Richard Walter Parker, James (Halifax) Young, William (Perthshire, E.)
Eyres-Monsell, Bolton M. Pearce, Robert (Staffs, Leek) Younger, Sir George
Ferens, Thomas Robinson Pease, Herbert Pike (Darlington) Yoxall, Sir James Henry
France, Gerald Ashburner Pease, Rt. Hon. Joseph A. (Rotherham)
Furness, Stephen Pirie, Duncan Vernon TELLERS FOR THE AYES.—Sir J. Dewar and Mr. Esslemont.
Gill, A. H. Ponsonby, Arthur A. W. H.
Gilmour, Captain John Pringle, William M. R.
Adamson, William Brunner, John F. L. Gladstone, W. G. C.
Agg-Gardner, James Tynte Bryce, J. Annan Gwynn, Stephen Lucius (Galway
Allen, Arthur A. (Dumbartonshire) Chapple, Dr. William Allen Gwynne, R. S. (Sussex, Eastbourne)
Balfour, Sir Robert (Lanark) Courthope, George Loyd Hamersley, Alfred St. George
Barlow, Montague (Salford, South) Falconer, James Henderson, Major H. (Berkshire)
Boles, Lieut.-Col. Dennis Fortescus Gibson, Sir James Puckering Keating, Matthew
Lyell, Charles Henry Pearson, Hon. Weetman H. M. Williams, Colonel R. (Dorset, W.)
M'Callum, John M. Price, C. F. (Edinburgh, Central)
M'Curdy, C. A. Wason, Rt. Hon. E. (Clackmannan) TELLERS FOR THE NOES.—Mr. R. Harcourt and Mr. G. Collins.
Munro, R. Wason, John Cathcart (Orkney)
Murray, Captain Hon. Arthur C. Whitehouse, John Howard

Question put, and agreed to.

Amendments made: At end of Sub-section (1), insert the words "or at any time on Sunday."

In Sub-section (2), after the word "thereof," insert the words "and such by-laws may be made either for the whole burgh or for any specified part or parts thereof."

In Sub-section (3), leave out the words "Sub-section five and."—[Mr. Ure.]