§ 1. Where a person has sold any goods at a price in excess of that allowed by or under any Order made by the Food Controller in pursuance of the powers conferred on him by the Defence of the Realm Regulations, that person in addition to any other penalty to which he may be liable, shall forfeit to His Majesty a sum equal to double the amount of such excess, and in any proceedings taken to recover such amount the Court, if satisfied that there has been a breach of the Order, may order an account to be taken in like manner as if the sum recoverable under this provision had been money had and received for the account of His Majesty.
§ Mr. LOUGH
I beg to move, at the beginning, to insert the words "After the passing of this Act."
I am sure that my hon. Friend is anxious to make progress, and, as I see that the Amendments are most of them in my name, I would appeal to him to take a business view of some of the suggestions that I desire to make, because it will perhaps facilitate the passage of the Bill. I do not think that we need have any discussion with regard to the retrospective character of the Bill, because my hon. Friend has said that he would introduce words to put that matter right. It will appeal to the Committee as being perfectly reasonable that a thing like this should only come into operation from the passing of the Act, but, as the point has already been agreed to, I will not delay the Committee with any further arguments.
§ The PARLIAMENTARY SECRETARY to the MINISTRY of FOOD (Mr. Clynes)
It is true that in the Debate on the Second Reading I said, in answer to a question, that there was no intention to make this Bill retrospective, and, in order to bring our intention within the terms of the Bill I am, of course, quite willing to accept the Amendment, though not in the place suggested. If it would not in any way preclude the moving of other Amendments, I would prefer to accept the words after the word "has" [" Where any person has"].
§ Mr. LOUGH
The offer of my hon. Friend is, of course, perfectly satisfactory to me, and I would suggest, subject to your 1458 direction, that I should withdraw this Amendment and proceed to move my second Amendment. When we have disposed of that, we can insert the words as the hon. Member suggests.
§ Amendment, by leave, withdrawn.
§ Mr. LOUGH
I beg to move, after the word "person" ["Where any person"], to insert the words "not being a producer or manufacturer."
We really want to introduce some words, and I would, appeal to my hon. Friend not to think that I am hostile to the object that he has in view in proposing these words. I listened very carefully to his explanation of the Bill on the Second Reading, and, as he explained it then, it was to punish with these severe penalties all persons who charge a price in excess of that allowed or fixed, and especially merchants who distribute throughout the country and duplicate their offence in the case of each of their travellers, which was the one case that he took. Of course, he will also have in view the practice of shopkeepers and distributers in charging a higher price. I do not propose in any way to limit the effect of the measure on all that great class of people, but I fear that the Bill will hopelessly interfere with production if it is not very carefully guarded, and I am sure that my hon. Friend's own experience will satisfy him that there should be some qualifying words, if not quite as wide as those that I suggest, to protect the producer a little. It may be said that the exemption which I propose," not being a producer or manufacturer," is very wide, but it has been the uniform experience of the Food Controller that he has been unable to stick to the price on which he has first settled of any article with which he has dealt—potatoes, butter, beans, bacon, beef, etc. In the national interest a little more has had to be exacted, in some cases considerably more. My hon. Friend has had to wink at higher prices being charged, as in the great case of Irish cattle. The same thing went on with regard to bacon until the price had to be altered in the national interest. The same thing occurred in the case of butter. I think after that experience my hon. Friend ought to introduce some words to protect the producer. The first necessity of the nation is to get these indispensable foods, but by fixing a price you may easily stop production. Although you may try to do good, you 1459 may really do great harm. You may promote famine and scarcity and not achieve the object which you have in view.
§ Mr. CLYNES
I am quite unable to accept this Amendment. It would very seriously narrow the operations of the Bill, and take away a large part of the object that we have in view. No reason has been given by the right hon. Gentleman for excluding producers or manufacturers from the effects of the Bill. I explained its general object during the course of the Debate on the Second Reading, and my right hon. Friend has already persisted in repeating statements despite denials which have been offered in the course of discussions in this House. I am not going during the course of the Debates on the Committee stage to enter at length into controversial matters or to debate the general question of the policy of the Ministry of Food. In answer to his argument I say that there is just as much reason why a producer or a manufacturer of an article of food should be made subject to the penalties of this Bill as there is for applying them to a person who may be merely a buyer. Therefore I am totally unable to sympathise with or to accept the right hon. Gentleman's view, because his object is so seriously in collision with the objects of the Bill. If we were to insert these words, one-half at least of the measure would fail in its purpose and a large section of people would be excluded from its operation, and others would naturally complain that they were prejudiced by what would be in fact a one-sided Act of Parliament.
§ Amendment, by leave, withdrawn.
§ Amendment made: After the word "has" ["Where a person has"] insert the words" after the passing of this Act."—[Mr. Lough.]
§ Mr. LOUGH
I beg to move, after the words last inserted, to add the word "knowingly."
If my hon. Friend will think for a moment he will realise the great difficulty of the decisions of the Food Controller being known all over the country to a multitude of people affected by them. This is quite a customary word in an Act of Parliament. I see the Solicitor-General shakes his head.
§ Mr. CLYNES
Members of the Committee will recall the fact that the issue raised by this Amendment has often been debated, and I cannot recall a single occasion upon which the House has agreed, on a penalising measure like this, to the insertion of any such qualifying word. It is difficult enough as things are for a Court of law to settle questions on evidence, but here the Court of law will have to determine the matter, not upon the evidence relating to the issues that are raised but upon the point whether the Court could be quite certain of the state of a man's frame of mind or conscience at the time in question. An offender, if brought into Court, could plead as part of his defence and in support of his case that he did not know, but whether he did or not the Court must determine and they must weigh the evidence for what it is worth. On the ground of precedent, and generally on the ground that the Amendment would frustrate the object of this Bill, I cannot accept the proposal.
§ Amendment negatived.
The next Amendment, standing in the name of the right hon. Gentleman the Member for West Islington (Mr. Lough), is outside the scope of the Bill. I have some doubts about the next one, but I will hear what he has to say upon it.
§ Mr. LOUGH
The Amendment I desire to move is, after the word "Regulations," to insert the words "or paid, or agreed to be paid, or sanctioned by him in the purchase of any of the commodities, whichever may be the higher."
Perhaps I may ask my hon. Friend some questions on this point. I suggest to him that, besides the prices formally fixed in Orders, there have been prices fixed for producers—for instance, in the case of the Irish cattle, and also other prices paid by the Food Controller for bacon and butter, which he has imported in large quantities. When you are considering the prices fixed by the Food Controller, I suggest you should take into account either the price named in the Order or the price actually paid. It seems 1461 to be a very great hardship to impose heavy penalties on people for charging a price which the Food Controller himself is paying at the time. Therefore, I propose that the fixed price shall be the price named by the Food Controller in an Order, or the price paid, or agreed to be paid or sanctioned by him in the purchase of any of the commodities, whichever may be the higher. If there are two prices obtaining with regard to an article dealt with in the Food Control Department, if the Food Controller is working at one price and he sanctions another price in the Order for the same article, he should choose the price which is the higher. I submit that the Amendment is quite in order, and I would ask my hon. Friend to take this opportunity of explaining the matter. I would ask him whether the point I have drawn attention to is not a customary practice of the Department with regard to the great articles of food?
The Amendment of the right hon. Gentleman must, of course, be relevant to the Bill. I gathered that the purpose of the Amendment was to raise a question in regard to the fixing of prices. The purpose of the Bill, as he will observe, is to double the amount received by way of penalties for the sale of goods at prices in excess of those allowed by the Food Controller. It seems to me that if I allow the Amendment to proceed it would widen the Bill beyond the scope indicated by the Title. I am afraid I cannot allow it to proceed.
§ Mr. LOUGH
On the point of Order. Surely the price allowed by the Food Controller must cover the price he is actually paying at the time. We have had it consistently admitted in the House that a price was being paid by him for beef and for butter much in excess of the fixed price. Therefore I am calling attention to these prices, and ask which of the two prices are governed by the wordsallowed by the Food Controller.
I must be guided by the fact that the House passed the Second Reading of the Bill with this Title. I regret I cannot allow the Amendment.
§ Mr. LOUGH
I beg to move to leave out the words, "in addition to any other penalty to which he may be liable."
This Amendment deals with the question of the double penalty. I would suggest that a penalty of a sum equal to 1462 double the price in excess of the price fixed, an examination of a trader's books, and the opening up of every transaction is quite sufficient, but we have in the Bill the wordsin addition to any other penalty to which he may be liable.I do not know whether my hon. Friend thinks it necessary to have these words.
§ Mr. CLYNES
I certainly take the view that the words in the Bill should be retained. On the Second Reading my right hon. Friend not merely admitted, but said repeatedly that the prices fixed by the Food Minister were very generous to traders, and allowed a reasonable margin, of profit.
§ Mr. CLYNES
If that be so, he will agree with me in saying that those who are not satisfied with the reasonable margin of profit, and those who are not content with the generous treatment they receive from the Food Minister, deserve very severe punishment when they seek to make a profit in addition to what is. reasonable by evading the law or by committing breaches of the law. The Court at present can only go to the length of imposing a penalty not exceeding £100 or a term of imprisonment not exceeding six months. We have had a few cases where penalties of that kind are clearly not sufficient, and have not deterred others from repeating those offences. Accordingly we ask that, in addition to the existing penalties permitted by the Regulations under the Defence of the Realm Act, the offender should be made to return not only what he has secured in that way as his illicit gain, but double the amount of any such gain. The Bill would therefore fall far short of its object if it dropped one set of penalties merely in order to institute another. Its object is to increase the severity of the penalty, not because we regard any large number of traders as potential criminals or as persons who do intend to offend against the law, but because we have had a few exceptional cases, and the public indignanation has been such that we feel compelled to increase severely the penalties which may be imposed upon them. Accordingly I cannot accept these very limiting words.
§ Mr. LOUGH
I have always made it a matter of principle to say a word or two against these Bills which include heavy 1463 penalties. I have always found them to be utterly inoperative. I believe that will be the case with this Bill. Parliament takes no interest in it, and I do not believe that the public take the slightest interest in it, or that any useful purpose will be served by it. Therefore I will not proceed further with the Amendment.
§ Amendment, by leave, withdrawn.
§ Mr. LOUGH
I beg to move to leave out the words" equal to" ["a sum equal to double the amount of such excess"], and to insert instead thereof the words "not exceeding."
May I say one further word about penalties? The Bill is very curious in this respect, that it fixes the penalty absolutely apart altogether from the discretion of the judge. I therefore suggest the insertion of the words "not exceeding." But if the matter is to be treated in the almost vindictive spirit of the last pronouncement, I shall not propose to proceed to argue it further, but formally move the Amendment, so that it shall be left to the judge to take all the circumstances into account, and so as not to make the Bill a complete farce.
§ 7.0 P.M.
§ Sir G. HEWART
I cannot help thinking that my right hon. Friend has a little misapprehended both the purpose and the intent of the provisions in the Bill with regard to the penalty. If I follow him, he desires that there should be left to the tribunal a discretion as to the amount of the penalty which should be inflicted in any particular case. That is precisely what the Bill does. The Bill would not have done that if the Amendment which my hon. Friend moved a moment ago had been accepted. If he will kindly look at the Bill, he will see that the fixed penalty which is intended to be imposed by this Bill is a cumulative penalty—that is, it is in addition to any other penalty to which a man may be liable. Within the limits of the penalty already prescribed the Court has discretion; but the effect and purpose of this Bill are quite deliberately to say to the tribunal, "Whatever discretion you may exercise within the limits of the existing penalty, one thing is fixed and clear—you shall, in a case to which this Bill applies, require the defendant to forfeit to the Crown a sum equal to double the amount of such excess." That element in the penalty is fixed and certain. The discretion of the Court comes in with reference to the other 1464 penalty. The effect of the Bill is not to give the Court discretion as to the amount of forfeiture. That is the plain policy of the Bill, but in all other respects the discretion of the Court remains.
§ Colonel GRETTON
I handed in a manuscript Amendment dealing with this point in rather a different way. These prosecutions are undertaken by the Minister of Food and sometimes the penalties inflicted for particular reasons appear savage and undue to the offence that has been committed. We all know cases in point where very heavy penalties have been inflicted for technical offences. It seems to me unjust, when the Court has to make a technical conviction, and would probably inflict a nominal or inconsiderable penalty, that it should not be left any discretion, but should be forced by the Bill to inflict a heavy penalty, though the offence is found, on investigation, to be only a technical one of a trivial and inconsiderable nature. I think my right hon. Friend will admit that it is very unusual to take all discretion away from the Court as to the extent of the penalty to be inflicted. It would be a very great hardship in such a case that a fine of double the excess of the amount obtained should be inflicted, and by some means injustices of this kind should be guarded against. The Regulations are extremely voluminous, very technical, very badly worded, and extremely difficult to understand. With the best will in the world it happens sometimes that persons make a slip and commit a technical offence, and it is hard to inflict a savage double penalty and take all discretion away from the Court.
§ Mr. HOLT
I support what has fallen from the right hon. Gentleman (Mr. Lough) and the hon. and gallant Gentleman (Colonel Gretton). I do not think it is proper to take away from the Court all discretion as to the penalty which it may inflict. It is quite true that it does not in this case take away all discretion. There is a certain amount of discretion left, but nevertheless there remains a penalty which is entirely outside the discretion of the Court in any sense of the word. It consists in requiring a man to pay twice the difference in the price between that at which he has sold the goods and that which the Food Controller has allowed. It is quite easy to imagine a case in which a man happened to have a bonâ fide misapprehension of the Order of the Food Controller. He might 1465 commit this offence, and the amount which he received might not be a profit at all. It is not twice the profit he has made, but twice the difference between the two prices, and it is easy to conceive circumstances in which a man may have made a mistake as to whether the goods were in one class or another and had sold them at a wrong price, and yet might find that, though he had charged more than he was allowed, he had made no profit whatever. Yet however much he may satisfy the Court that he has done no intentional wrong, and possibly, in fact, nothing wrong, the Court is bound either to acquit him altogether, as we know Courts are apt to do when they consider a penalty utterly unreasonable, or else inflict the penalty. I hope the Government will reconsider its decision and will leave it open to the Court to impose such penalty as it thinks suitable.
§ Sir F. BANBURY
I am not quite sure that I agree with the hon. Member that profits have nothing to do with it. If a man has sold an article at a price beyond that at which he is authorised to sell it he has committed a fault, and to say that he does not make a profit does not seem to me to be a very good argument. I have tried to understand the Bill, and it seems to me that this might possibly occur. Presuming that a man was prosecuted for selling an article above the price authorised, and his defence was that the sale took place on Wednesday, the 10th, and the Regulation only came out on Tuesday, the 9th, and he had not seen it, speaking as a magistrate, I should be rather inclined to dismiss the case, but under the Bill I should be bound to say the man was liable to forward to His Majesty twice the amount of the excess. If that is so it is most unjust, and I think it must be so under the wording of the Bill, and I think the hon. Gentleman ought to accept the Amendment.
§ Colonel SANDERS
I hope the Government will accept the Amendment. It seems to me to be eminently reasonable to leave the discretion to the magistrates. The intention of the Bill is only to severely punish a man who has committed a real offence. I do not think there is the slightest fear, in the present state of public feeling, that when a man has committed a real offence the magistrates are going to be unduly tender to him. The question is really whether a man has committed a purely technical offence, or has com- 1466 mitted an offence inadvertently. In that case it seems to me the Bill says he must pay this penalty of double the excess. I see no danger whatever of injustice being, done by leaving it to the magistrates to decrease that penalty if they wish to.
§ Mr. LOUGH
I think there is inconsistency in the argument presented by the-Solicitor-General. He said the magistrates were left a discretion with regard to one of the penalties. That is why the words I proposed in the last Amendment, to strike out have been left in the Bill But he said he would give them no discretion with regard to the second penalty. Surely that is very inconsistent. There may be circumstances which would force the Court to do great injustice if these words are left in. I quite admit that the Food Controller's Department is not always to blame, but some of his prosecutions have been most unfortunate. There was one last week where a penalty of £90 was inflicted for an offence which the Court unanimously believed to have been committed quite innocently, and I think there were a good number of similar cases. With the best intentions of making their Orders right they may not be perfectly right in every case, and they may not have come to the notice of the persons who has unwittingly infringed them. My words would not at all prevent the infliction of a penalty, but would only leave discretion to the magistrate. This has been supported in all parts of the Committee, and I think my hon. Friend would do well to accept it and not prolong the Debate.
§ Mr. PRINGLE
After the discussion which has taken place, I think the Government might reasonably make a concession on this point. The Amendment does not really weaken the force of the Clause. Undoubtedly where there is a glaring offence the magistrate will impose the maximum penalty, and if it is desirable to allow the magistrate a discretion in respect of one of the penalties surely the argument holds equally good that the same discretion should be allowed in respect of the other, if there is to be ground for the exercise of discretion at all. The whole basis of the Solicitor-General's argument was that the case for discretion was complete. He said "There is a discretion for the penalty which at present exists, but we are not going to give you any discretion in regard to the very serious penalty which is now im- 1467 posed." There must be many cases where it is not clear until the trial actually takes place what the extent of the guilt of the accused person is. Surely under these conditions it is desirable that the Court should be able to impose a penalty in proportion to the offence, and by accepting the Amendment the Government will enable the Court to act upon it. Apart from that, they will be driven to impose this penalty in every case, and you may, in such circumstances, find magistrates refusing to convict altogether.
§ Mr. CLYNES
I am not without sympathy for the individual who has figured in the speeches of hon. Members, and I want to pay every regard to the arguments which have been adduced in support of the Amendment. But there is another side to the case which has not yet been altogether exhausted. It is that the Courts have now a very great amount of discretion within which to determine whether a man is guilty of this offence against the law or not. They have discretion as to whether he shall be imprisoned and as to the extent of the fine which should be imposed upon him, and the object of the Bill is to say that, however much the Courts may use their discretion in those two respects, on one point there should be no variation, no doubt, no dissimilarity of decision or judgment, and that the offenders should pay equally the whole country over the same penalty—at least, with respect to the amount of excess prices which have been secured as the result of the offence. To allow discretion would, of course, be to produce variations of penalties and of decision. It would mean that in some cases Courts would decide that only a fraction of the excess prices should be returned, in others that the whole should be returned, and in others that double should be returned; and you would, therefore, have in the minds of traders a feeling of discontent against a law which would apply so inequitably in different parts of the country. Although there is a good deal of margin of discretion upon this point, the view of the Ministry is that neither the Court nor the country, nor the traders should be left in any doubt whatever as to the penalties which have to be imposed. Even the man who is guilty of a technical offence has no right to retain the gains of that technical offence. It is fair, in time of war at any rate, to impose upon him the penalty of 1468 returning double the amount of gains which has accrued to him through the commission of that technical offence. I may mention how unequal the law is to deal with the conduct of some traders. I saw in the papers within the last few days the report of a case of a trader in London who has been fined five times. The ordinary penalties to be inflicted by law as it now stands have in five separate cases been imposed upon this offender. It appears to me that the law at present means to some of these traders that the violation of the law is a paying game. Despite the penalties, they are still more or less encouraged to commit these offences. The least we can do to meet public opinion is to give the mass of consumers an assurance that anybody who earns ill-gotten gains in this way, if he is detected by the law and convicted, will have to forfeit at least double the gains which he has wrongly secured.
§ Mr. MORRELL
The arguments we have heard from the hon. Member would strike at the idea of giving discretion to the Courts at any time. He says that if you give discretion there may be a certain amount of dissimilarity between various sentences in different parts of the country. Therefore, he said, let us have a cast-iron rule, and whether a man is merely technically guilty or absolutely guilty, whether he has heard of the Regulation or not, whatever the circumstances, the Court must have no discretion, but the man is to forfeit double the amount. The hon. Member says he has considerable sympathy with the individuals whose cases have been put before him from all sides of the House. I must say he did not betray much sympathy in his arguments. In fact, I was reminded of the sympathy shown by a certain autocratic King in the Bible, who wished to deal with everybody who did not worship God in a particular way, and decreed that they should be cast into a den of lions. When it was reported that his own servant, Daniel, had broken this decree, the King was sorry. Nevertheless, there was the decree, and it must be carried out; it was a hard and fast rule. The hon. Gentleman went on to tell us that such offences were increasing and that therefore we must have bigger penalties. He said that he was hearing of new offences against these food regulations.
§ Mr. CLYNES
I did not allege that the offences are increasing. That would be a serious charge to make against the trading 1469 community, I merely say that we have discovered certain offences in certain places. I do not mean they are being added to.
§ Mr. MORRELL
Then they are not increasing, I am glad to hear that. It comes to this that because the Government are discovering them better the penalties must be increased and the discretion must be taken away from the Courts of Justice who administer the law.