§ (1) If any employer deducts, or attempts to deduct, from the wages or other remuneration of an employed contributor the whole or any part of the employer's contribution, as defined in the Second Schedule of the principal Act, he shall be guilty of a contravention of the provisions of Part I. of the principal Act.
§ (2) The time within which proceedings may be taken under Sub-section (2) of Section 69 of the principal Act against an employer charged with an offence of failing or neglecting to pay any contribution in respect of an employed contributor shall be one year from the date of the commission of the alleged offence, and where an employer has been convicted of such an offence then, if notice of the intention to do so is served with the summons or warrant, evidence may be given of failure or neglect on the part of the employer to pay other contributions in respect of that 1654 employed contributor during the year preceding the date when the information was laid, and on proof of such failure or neglect the employer shall be liable to pay to the Insurance Commissioners a sum equal to the total amount of all the contributions which he is so proved to have failed or neglected to pay.
§ Mr. ANNAN BRYCEI beg leave to move to leave out the Clause.
The effect of this and the following Amendment in my name is almost entirely consolidation, but there is one new and important point providing that if any employer or his servant or agent makes an improper deduction from the pay of an employed contributor he shall be liable to conviction unless he can prove to the satisfaction of the Court that he was not a party to the commission of the offence. I think there is general agreement that this provision which is in the Factory Acts should apply also in the administration of 1655 the Insurance Act. I hope the Government will accept the Amendment. There is no other point; all the rest is consolidation.
§ Mr. SPEAKERDoes the hon. Member move a second Amendment?
§ Mr. ANNAN BRYCEI will move the first; all the rest is consequential.
§ Mr. MASTERMANI am anxious not to enter into a very difficult subject and a very important Clause at one o'clock in the morning. I will consider specially upon this matter whether it would be desirable to introduce it in another place. I could not ask the House to enter into a subject of consolidation at this time and I ask the hon. Member to withdraw his Motion.
§ Mr. ANNAN BRYCEIf the Government will consider the insertion of this Amendment which is regarded as a point of great importance I will consent to withdraw.
§ Amendment, by leave, withdrawn.
Mr. WORTHINGTON-EVANSI beg to move after the words, "If any employer" ["If any employer deducts"], to insert the word "knowingly."
I moved this Amendment upstairs, and the Financial Secretary to the Treasury insisted upon refusing it. He seemed to think it was right that a man should be punished for an offence which he had committed unwittingly, and in order to test the view of the House upon that I have renewed the Amendment to-day. I quite agree that if an employer willingly and knowingly attempts to deduct too much he ought to be punished. Supposing, however, that in fact he deducts too much without knowing it I think he ought not, to be punished. It is quite easy to make a mistake as to a man's rate of remuneration, especially where cash wages are not the only things to be taken into account. In the estimation of the rate of wages the Commissioners have been called upon in case after case to settle disputed points as to earnings, and the correct contribution to be paid by the employer. The Bill, as it stands, allows the employer to be prosecuted and convicted perhaps because by accident, or in the bonâ fide belief that he is deducting the correct sum he, in fact, deducts an incorrect sum. The Financial Secretary to 1656 the Treasury said that in such cases no Court would ever convict. There ought to be no such provision in an Act of Parliament which would place an employer or any man in the position of being charged with an offence when he does not know and could not know that he had committed such an offence. In the Act there are many other provisions for penalties where a thing is done knowingly, but there is no Clause which imposes a penalty upon a matter of opinion unless it is done knowingly and this word ought to be here included in order not only to make it sense but in order to do a small act of justice towards those who might otherwise be prosecuted.
§ The SOLICITOR-GENERAL (Sir John Simon)The discussion of the question whether the word "knowingly" should be inserted is a discussion which from time to time crops up when we reach a penalty Clause in a proposed Act of Parliament. It is not the first time this Session that the House has had to consider it. Let me just point out the principal considerations which should be borne in mind. Do not let us fall into the error of illustrating our argument by assuming instances where there is the least degree of culpability coupled with the assumption that there is the maximum amount of punishment. That is not how the thing works. The Act provides a maximum punishment in order that the tribunal may impose a penalty in a bad case, but it is well understood by those who administer the law that they have full discretion within the limits of that maximum to impose such portion of that punishment as they think suits the case. And moreover it is not merely that no Court would ever convict in the sense that a man runs no risk in the matter. It is a recognised part of the Summary Jurisdiction Act that if a case comes before a magistrate, and that case, in his view, is either trumpery in its character or ought not to be brought before him, he is by statute entitled to consider that there may be a technical breach of the law, to decline to deal with it, and to dismiss the whole matter. Whether with this provision well known to our law it is really desirable to introduce the word "knowingly" into this Section is the question, and I suggest it is not for this reason.
It is impossible to suppose that if you leave out the word "knowingly" then a person, if such there be, who from every 1657 point of view is completely innocent, runs the risk of conviction. Evidently the true construction of this and any similar Section would be to presume guilt only if you got a guilty mind in the sense in which lawyers use the term; it would make a great difference if you put in those words "knowingly," because you find yourself faced with this difficulty—that the accused is under no obligation to say anything at all, and if he is a person whose explanation will do him damage and he is well advised he will not say anything, he will sit still, because then you cannot prove anything from his answers. After the prosecution has finished some ingenious adviser will get up and say that the prosecution have not proved their case, they have only proved certain facts, and they have not proved that he knew of them. If you leave the word "knowingly" out the tribunal will infer that the necessary facts have been proved, and that the person knew what he was about; and they may presume, also, that if he had given evidence there would be special circumstances that would excuse him. In that situation the prosecution will succeed in a case, but if you put in the word "knowingly" the prosecution will fail because the person sits still and refuses to give evidence. From the point of view of the administration of this statute, which of the two situations is best? I suggest that the better situation, that in the ordinary course of events, we must expect citizens to obey this law precisely in the way in which it is laid down. It is quite true that in certain cases excuses may be offered, and may turn out to be valid excuses, but they must be offered, and they must be proved, and we secure that when the word "knowingly" is left out; and the penalty may then be in accordance with the facts as presented. If you look at Section 69 in the principal Act you will find that the word "knowingly" occurs in Sub-section (1), which is not analagous to this, but it does not in Sub-section (2), where it says that if any employer has failed to pay any contribution to which he is liable in respect to an employed contributor, he shall be liable to conviction.
The question whether he has got to pay or not depends upon whether the man he employs is an employed contributor, and the question we have discussed is whether curates and Nonconformist ministers are employed contributors or not. The Statute at this moment says it is an offence not to pay if you employ an employed contributor. For these reasons I suggest the 1658 position taken up by the Committee upstairs is perfectly right, and it would not conduce to the fair working of this Statute which we all want to secure to put in that word; on the contrary, it would give an opportunity to the very people who ought not to get off, while at the same time it would not allow that elastic administration of the law which is one of the best features of summary justice.
§ Mr. FORSTERThe explanation which the right hon. and learned Gentleman has given is, I think, one that the House will accept. I only regret that the Committee upstairs lacked the services of so distinguished a gentleman. Had we had the advantage of his complete and authoritative explanation as to the desirability of not incorporating this word "knowingly," it would not have been necessary for my hon. Friend to have moved his Amendment.
§ Amendment negatived.
§ Mr. O'GRADYI beg to move, after Sub-section (1), to insert,
"(2) Every person who buys, exchanges, or takes in pawn from an insured person, or any person acting on his behalf, on any pretence whatever, any insurance card or insurance book shall be liable on summary conviction to a fine not exceeding ten pounds."
The Amendment seems to me to require very little commendation to the House. I am afraid the practice of pledging cards will spread, and it is the pure purpose of the Amendment to prevent that. Just a few words from the Report will cover the point at issue. The only inspectors who have discovered this practice, curiously enough, are inspectors in Ireland, which I suppose, will be taken as evidence of their greater vigilance in these matters. On page 472 they say:—
An inspector in Cork discovered that a popular method of obtaining money in that city was by pawning partially or fully-stamped contribution cards. The fact that the cards are the property of the Commission, and that the regulations provide that any assignment of cards is void, did not deter some enterprising pawnbrokers from advancing as much as 1s. 6d. on a fully stamped card.And it went on to say that some workmen obtained the cards of others and pawned a batch. I venture to say that if that is the case all over the Kingdom as a result of the poverty problem, I think the House would be well-advised in incorporating this Amendment in the Bill.
§ Mr. MASTERMANThose who were in Committee will remember that this is one of the Amendments I agreed to insert, and I think it would have passed without controversy. Unfortunately, through an error, it could not be discussed, but I understand it is quite uncontroversial. There seems to be in certain places some amount of pawning. I can imagine no worse custom, and I should be very glad if it is stopped.
§ Amendment agreed to.
§ Mr. SPEAKERThe next Amendment standing in the name of the hon. Member for Leeds (Mr. O'Grady) is one for the alteration of the Criminal Law, and I think that is outside the scope of this Bill.
The Amendment mentioned was as follows:—
["Where an offence against Part I. of the principal Act, or the regulations made thereunder, is committed within the jurisdiction of a justice in Ireland, and the person alleged to be guilty of the offence is an employer who is or resides in England or Scotland, or in any place in Ireland outside the limits of the jurisdiction of the justice, a summons issued by the justice may be served at any place within those limits upon any foreman or other person having the oversight of any employed contributors in the employment of the alleged offender, and if so served shall be deemed to have been duly served upon the alleged offender."]