HC Deb 24 November 1911 vol 31 cc1926-32

(1) If for the purpose of obtaining any benefits or payment under this Part of this Act either for himself or for any other person, any person knowingly makes any false statement or false representation, he shall be liable on summary conviction to impisonment for a term not exceeding three months, with or without hard labour.

(2) If any employer or workman has failed to pay any contributions which he is liable under this Part of this Act to pay, or if any employer or workman or any other person refuses or neglects to comply with any of the requirements of this Part of this Act, or the regulations made there-under, he shall for each offence be liable on summary conviction to a fine not exceeding ten pounds, and also, where the offence is failure or neglect to make any contribution under this Part of this Act, to pay to the Unemployment Fund a sum equal to three times the amount which he has refused or neglected to pay, which sum, when paid, shall be treated as a payment in satisfaction of the contributions which he has so refused or neglected to pay.

(3) Procedings under the foregoing provisions of this Section shall not be instituted except by, or with the consent of, the Board of Trade, and may be commenced at any time within three months of the date at which the offence comes to the knowledge of the Board of Trade.

(4) Nothing in this Section shall be construed as preventing the Board of Trade from recovering any sums due to the Unemployment Fund by means of civil proceedings, and all such sums shall be recoverable in such proceedings as debts due to the Crown.

(5) If it is found at any time that a person has been in receipt of unemployment benefit under this Part of this Act whilst the statutory conditions were not fulfilled in his case or whilst he was disqualified from receiving unemployment benefit, he, or in case of his death his personal representatives, shall be liable to repay to the Unemployment Fund any sums paid to him in respect of unemployment benefit whilst the statutory conditions were not fulfilled or whilst he was disqualified for receiving the benefit, and the amount of such sums may be recovered as a debt due to the Crown.

Mr. BARNES

I beg to move in Sub-section (1) after the word "payment" ["payment under this Part"] to insert the words "or avoiding any payment."

Amendment agreed to.

Mr. BAIRD

I beg to move in Sub-section (2) after the word "has" ["has failed to pay"] to insert the words "knowingly or wilfully."

Under this Clause men are liable to heavy penalties, and it seems fair that if a man has committed an offence unintentionally that he should be safeguarded by the insertion of these words, and that he is only amenable to this punishment if be has knowingly or wilfully committed the crime.

Sir J. SIMON

What is the difference between the two words?

Mr. BAIRD

I would not like to bandy words with the hon. and learned Gentleman, but there might be a difference between knowingly and wilfully.

Sir J. SIMON

Certainly, we do not desire to use the criminal law for the purpose for which it is not intended, but if this Act of Parliament is going to be made to work smoothly and fairly, mere neglect to pay assumes rather serious consequences. It is an extremely difficult thing to correct, however genuine the neglect may be. The Committee must bear in mind these two qualifications in the Clause. No proceedings of any sort can be taken without the approval of the Board of Trade. There is not the slightest possibility of proceedings being taken unless the authority of the Board of Trade is secured for the prosecution. When such authority is given and proceedings are taken and the case is proved, there is to be a penalty, but what this Clause provides is simply the maximum penalty. It would be competent for the magistrate to dismiss the case, and although it was proved, to say that he did not think it was a case for imposing any punishment at all. I suggest, therefore, that this is not a Clause in which it is desirable to insert "knowingly." I am not at all clear whether "knowingly" or "wilfully" would be two offences or one. I think we may well rely upon the fact that no proceedings can be taken without the Board of Trade's authority, and that to the magistrate is left full discretion.

Sir A. GRIFFITH-BOSCAWEN

I hope my hon. Friend will press this Amendment. The Clause says: "If the man has failed to pay." The Solicitor-General says the man ought to know what he has to pay. That is not so easy as he thinks. Trades are scheduled, but there are subsidiary trades, and great doubt may arise as to whether particular subsidiary trades are included or not. It would be very hard indeed if, under these circumstances, a man who failed to pay subscriptions to a subsidiary trade which was afterwards found to be included in the Act was charged with having acted improperly. Very wide powers are given to the Board of Trade to extend the operations of the Act to other trades. There again there may be very grave doubt how far the extension may go. An employer may be under the impression that he is not liable to pay contributions in the case of certain workmen, but in consequence of an extension made by the Board of Trade, and not by Parliament, he finds he is liable. I think, therefore, to meet what might be a hard case the word "knowingly" should be inserted. I cannot see that the Bill will be in any way damnified by putting this word in. It will provide a certain amount of protection, which is not in the Bill as it stands now.

Sir J. SIMON

Will the hon. Member tell me in what sort of way he proposes to prove to the court that a particular person had knowingly failed to pay. How would he prove it?

Sir A. GRIFFITH-BOSCAWEN

Simply this way. A case is brought into court, an employer says I was under the impression the Bill did not extend to my trade. The offence would not have been, committed knowingly by him.

Sir J. SIMON

The employer will say nothing if he is a wise man until the case is proved. He sits still as his solicitor advises him. How are you going to prove the case?

Sir A. GRIFFITH-BOSCAWEN

How do you prove "knowingly" in other cases? The word "knowingly" is in many Acts of Parliament. I know it is difficult to prove it, but it is no more difficult in this case than in other cases.

Mr. HOLT

I think there is danger of grievance. On reference to the new Amendment of the President of the Board of Trade at the top of page 75, it will be seen that in certain circumstances it may be so doubtful as to what the employers' obligations are, that there is to be a reference to the umpire. I suggest that he should provide that in that case where it is necessary to refer the matter to the umpire for his decision, as to whether or not there is a legal liability to pay, there may be no danger of the penalty being inflicted.

Mr. HILLS

May I call attention to a much wider point. If we pass this, are we preventing the employer from raising a perfectly fair case on the construction of the Act?

Mr. HOLT

It goes to the umpire.

Mr. HILLS

If these words are not included in the Act you make the Board of Trade the judge in their own cause. If the employer breaks any rule or regulation of the Ac the Board of Trade can prosecute him and he can be fined. I can conceive a case in which there is a perfectly genuine difference of opinion between an employer and the Board of Trade. Surely in this case you ought not to give the right to the Board of Trade in the first place to lay down regulations as to what the Act does or does not mean, and then go to a criminal court to enforce those regulations. I am sure the Solicitor-General cannot mean that. Yet the effect of this is that the Board of Trade can call the Criminal Law into operation to enforce their own construction of the Act. I think that has only got to be stated to be condemned. If there is a difference of opinion as to the meaning of the Act it ought to be decided in the ordinary way.

Sir J. SIMON

I am very reluctant to occupy further time, but I realise that the hon. Gentlemen who are raising this point feel it to be an important one. I should be very sorry indeed, if the Committee thought that I, or any one who takes an interest in the proper application of the law, think that it is a small matter to create a new offence which can be prosecuted summarily, and in which the question arises whether the offence partakes of the nature of knowing guilt. What is the alternative before us? If you accept the proposal of hon. Gentlemen opposite, you are going to land yourselves in this difficulty—the man who will escape is not the man who deserves to escape, but the man who does not deserve to escape. The man who escapes will be the man who is careful to keep himself as far as possible aloof from the practical operation of this Act. He declares that he is away from his business, and that it is his foreman or his subordinates who employ the men. It does not matter to me, he would say, my solicitor tells me I cannot be held responsible unless it is proved I knew. That state of affairs would be impracticable for the administering of the Act. The other alternative is this. We have provided in the Bill that any man who chooses may get a decision from the umpire in anticipation. He does not need to be prosecuted. He can raise his point under the regulations by getting an authoritative decision from the umpire. If he does not do that, and he thinks that his case is a fair and reasonable one for not paying, he would be given a fair opportunity of establishing his case. In the first place he would not be prosecuted. The Board of Trade would certainly communicate with him first, and it is only after communicating with him that he is liable to be prosecuted. It is important to remember that the Government are making provision so that he can get a decision of the umpire in advance, and it is left to the Board of Trade to say whether there will be a prosecution or not. Leave the magistrate full discretion to deal with every case as it comes before him, and for the rest of it, do not give the dishonest and careless employer a defence which an honest and careful employer would never use; and do not say to the man, "If you shut your eyes to it yon will get off, but if you take an interest in your country's legislation, you will be punished."

Mr. GOLDMAN

Might I suggest to the learned Solicitor-General that he should insert the words, "after being given notice by the Board of Trade of his inclusion under this Act." The penalties to which the insured person is to be subject are exceedingly heavy, and if you look at the Bill, as a whole, the provisions are so uncertain that you are subjecting a man to an undue penalty if you say because he does not within a given time insure himself and his workmen, he is to be subject to these penalties. I think the words I suggest would meet the case, because it would give the employer an opportunity of being told by the Board of Trade that he is under an obligation to come under the insurance, and if he fails to do so, the penalty shall have effect, but not before.

Sir A. GRIFFITH-BOSCAWEN

I would appeal to the Government to try and meet us in some way.

Sir J. SIMON

I think the suggestion made is one that requires consideration. The hon. Gentleman suggests that before a prosecution takes place, the man prosecuted should have notice from the Board of Trade that they consider he is within the Act.

Mr. GOLDMAN

Yes.

Sir J. SIMON

The hon. Gentleman will appreciate that the Board of Trade cannot possibly issue notices to every employer to tell them whether they are within the Act or not.

Mr. GOLDMAN

No.

Sir J. SIMON

What the hon. Gentleman suggests is a preliminary to prosecution.

Mr. GOLDMAN

Yes.

Sir J. SIMON

I shall have to consider it.

Mr. BAIRD

Do I understand the hon. Gentleman to suggest that the employer or the workman, as the case may be, will not only get a warning that a prosecution is contemplated, but that if they come into line a prosecution will not take place?

Mr. GOLDMAN

Yes.

Sir J. SIMON

I will bear the point in mind, but I think the hon. Gentleman will see that it would not be prudent, as a matter of business, to give any undertaking now as to the form in which it shall be done.

Mr. BAIRD

I withdraw my similar Amendment.

Question, "That those words be there inserted," put, and agreed to.

Further Amendments made: In Sub-section (5), leave out the words "or in the case of his death, his personal representatives."

Add at the end of the Clause, (6) In any proceedings under this Section, or in any proceedings involving any question as to the payment of contributions under this Part of this Act, or for the recovery of any sums due to the Unemployment Fund, the decision of the umpire appointed under this Part of this Act on any question arising whether the trade in which the workman is or has been employed is an insured trade or not shall be conclusive for the purpose of these proceedings, and if no such decision has been obtained and the decision of the question is necessary for the determination of the proceedings the question shall be referred, in accordance with the regulations made under this Part of this Act, to the umpire for the purpose of obtaining such a decision.

Question, "That the Clause, as amended, stand part of the Bill," put, and agreed to.

Mr. BUXTON

I beg to move, "That the Committee do now adjourn until tomorrow, at 11.30 o'clock.

Question put, and agreed to.

Adjourned accordingly at Five o'clock.