HC Deb 30 April 1918 vol 105 cc1469-81

Again considered in Committee.

Question again proposed, "That the "words 'equal to' stand part of the Clause."

Mr. MORRELL (resuming)

When the Debate was interrupted, I was engaged in commenting on the very unreasonable attitude taken up by the Government with regard to this very moderate Amendment. The Amendment asks that the Courts shall have a discretion as to the amount of penalty that they shall impose in certain cases brought before them. The Government insists that if the Court find that the charge is true, then, whatever the extenuating circumstances, however technical the error, however innocent the defendant, they must exact the full penalty of double the excess that has been received. This would be, in any case, a remarkable and unusual departure from the ordinary practice of this country; but that the Government should persist in it, in face of the Debate which has already taken place, seems to be really nothing less than an outrage on the Committee. What arguments have they used to meet the objections to their attitude which have been brought forward? Here we have had a Debate in which hon. Member after hon. Member has got up from all parts of the House and has pointed out that this may lead to serious injustice to a great many innocent people. In reply, the hon. Gentleman in charge of the Bill merely says that if a discretion is allowed to the Courts there may be a variation in penalties as between one Court and another and one district and another. The Solicitor-General utterly failed to meet any of the arguments, except that he told us that it was a very serious offence. We quite agree that it is a serious offence, and if the Courts find it is proved and there are not extenuating circumstances, they would still be able to exact the usual penalties. All we ask is that, following immemorial practice, the Courts shall have discretion. As no sort of reply has been given to the arguments brought forward from all sides of the Committee, I hope, unless he gets some satisfaction from the Government, that my right hon. Friend will go to a Division.

Sir G. HEWART

I rise to add a word, because it has been said—though I fail to see how it can be maintained—that no sort of reply has yet been made. May I endeavour to explain the matter? It is important to see what it is exactly that is aimed at by this Bill. As the law at present stands, where a person is charged with the kind of offence with which this Bill deals, there are at least three courses open to the Court on conviction. A Court may impose a fine on the offender—a fine limited by the amount of £100—or the Court may send the offender to prison for a term of imprisonment limited to a period of six months. Also, the Court, if it thinks fit, may do both, one and the other, or any combination of them—that is to say, it may impose a fine up to £100 and also sentence the defendant to a term of imprisonment not exceeding six months. Within these limits, the Court has and will retain absolute discretion. But now, consider the position of the defendant. It may be that there are circumstances of aggravation which seem to require a sentence of imprisonment. It may be that there are circumstances of aggravation which seem to require the infliction of the maximum penalty by way of fine. With all that matter this Bill interferes not at all. But it does say this—and whether it be right or wrong its policy is to say this—"Whatever punishment, as punishment, the Court may think fit to impose, having regard to the particular circumstances of the case, whether it be a fine, and the amount of the fine; whether it be imprisonment, and the length of the imprisonment; or whether it be some combination of the two, there shall, in future, be one fixed, clear, certain element, and that is this, that where a man has committed an offence of this nature, the effect of which is that he recovers an excessive price over and above what he ought to recover, he shall not only be unable to retain that excessive price, but he shall forfeit it, and as much again." Whatever may be said or thought of the policy of the measure, one suggestion I do utterly resist, and that is the suggestion that it deprives the tribunal of all discretion. The question of the punishment, and of the nature of the punishment—whether it shall be a money punishment or imprisonment, or some combination of the two—is still left absolutely to the discretion of the Courts. The policy of this Bill is to say, "This offence is so serious and so strongly prohibited by the law that whatever else remains in doubt, the forfeiture in every case shall be a forfeiture of twice the amount of the excess." I really fail to understand the state of mind of hon. Members who say that by passing a Bill of that character you are taking away the discretion of the Court. Suppose a magistrate were trying a case, he might say, "I have heard the evidence in this case. I am satisfied that this is no aggravated case. I am satisfied that, although you ought to have known what you were doing, you have been careless and negligent. Therefore I am not going to send you to prison, and I am only going to impose a penalty of 20s. But you have done a thing which it is the determined policy of the Legislature to prevent, and you must pay this forfeit." And the defendant himself—if I may probe a little further into the minds of hon. Members below the Gangway—in such a case might, if he were the kind of defendant for whom the sympathy of the House is desired, say, "Not only will I not keep in my pocket the excess price, which I have negligently or inadvertently obtained, but I will cheerfully pay it back and a like sum in addition, having regard to the offence committed." Let there be no mistake, whatever may be the criticism of the policy of this measure, nothing could be further from the truth than to say that it deprives the tribunal of all discretion.

Mr. ROCH

I think we are all grateful to the Solicitor-General for the very clear exposition which he has given of the effect of this Clause. I do not think that anybody who had read the Bill had any doubt of what the effect of it would be. What the right hon. Gentleman has not fully appreciated, however, is the basis of the argument addressed in favour of the Amendment. The right hon. Gentleman spoke of an aggravated offence. In the case of an aggravated offence we are all with him in the desire that it should be dealt with very seriously, and no cast has been made from the Government Bench that the magistrates have been lax about that. That has never been suggested, and no one can read the papers without seeing that benches of magistrates have, very properly, taken a very severe view of such breaches of the law. The Solicitor-General has not satisfied those who have spoken in favour of this Amendment. Take the case, not of aggravated circumstances, but of extenuating circumstances. Take the case of a person coming before a magistrate where only a technical offence had really, in effect, been committed. Does the Solicitor-General really think that, in the case of a technical offence merely, that a magistrate who, to use his own illustration, would only think it right to inflict a fine of 20s., should be forced also to inflict a very serious double penalty, such as would be forced on him by this Clause if the Amendment were not accepted? I had hoped, in response to the reasonable arguments from all quarters of the House, that the representative of the Ministry of Food would have shown a little give and take in this matter, and would have made some small concession. But this is really not worth wrangling about, one way or the other. I do not suppose this Bill will apply to more than an infinitesimal number of cases, but there may be cases of really extenuating circumstances, in which the magistrates would wish to impose only a nominal fine. The result of this will be that they will probably dismiss the case altogether, and, so far from the law being assisted by the excessive stringency of the penalty, it will tend to bring it into contempt, which is not a thing to be desired.

Mr. LOUGH

The Committee will admit that on every Amendment I have spoken very briefly, and have withdrawn the Amendment very quickly, and so have endeavoured to facilitate the business. If the argument on this has proceeded a little further than in other cases, it is because of the unreasonable attitude which the Government has taken up. The whole Committee admits that, and I will try to reply as briefly as the Solicitor-General did. The Solicitor-General will not admit the case of the action which is contemplated in the Bill being committed without any offence whatever. There are elements in this Bill to prejudice everybody. The words, "Food Profits," appear on the back of the Bill, but there is nothing about profits on the face of the Bill. The action with which the Bill deals may be committed for no offence whatever. Let me give you one case, which will occur on Thursday in this country to a tremendous extent. I have asked half a dozen times that that case should be dealt with. I will make this one offer to the hon. Gentleman, and if he will meet me on that then I will withdraw the Amendment. [HON. MEMBERS: "No, no!"] On Thursday there will be the largest beef market in the Kingdom. Four thousand cattle will be sold at prices ten shillings above the prices fixed by the Food Controller. That will be done whether this Bill is passed or not. Will the hon. Gentleman tell me under what terms or under what secret arrangements these high prices are to be paid? Seventy-six shillings is the fixed price here, but that does not run in Ireland. How are the two things to be explained? The farmers will come on Thursday with all these cattle, and will know nothing about this Bill or about the price being ten shillings more than that allowed by the Ministry of Food, and if this Bill is passed into law then every man in the market will commit the same offence, yet there will be no conviction in Ireland obtained against them. You are putting innocent people into this dilemma. The Government have admitted the desirability of giving the Court discretion with regard to the most severe penalty, that of imprisonment, and with regard to the other penalty, yet if the Court finds that there has been no offence and that the charge is perfectly groundless, is it not hard that this particular double penalty should be extorted?

Sir G. HEWART

The accused may be acquitted.

Mr. LOUGH

No. The Solicitor-General will not try to understand my argument. The point here is whether, in. the case of a person who takes a price in excess of the price fixed by the Food Controller, and who may do that without making any profits—he may even incur a loss—and he does it perfectly innocently, the Court is to have no power of discretion in regard to the penalty to be imposed. Everybody in the House, excepting the representatives of the Government, realise there may be cases in which no offence is really committed, and I say, as it has been deemed desirable to allow the Courts discretion in regard to the most serious parts of the penalty, it ought equally to have discretion in the class of cases I have explained.

Mr. HOLT

I want to make an appeal to the Government. I think they themselves have taken up their present stiff attitude under a pure misapprehension. They are mixing up two different things—the charging of extra prices and the making of exorbitant profits. The two things are very different. A man may charge an excess price without making any profit at all; a trader may have paid an excess price for goods under a bonâ fide mistake. If the hon. and learned Gentleman had ordered payment of double the excess price by the merchant who sold to the trader he would have been standing on different grounds, but, instead of that, he says that the trader shall forfeit double the excess price he charges, whether he makes any profit or not. I submit it is only reasonable that the Court should have discretion in these cases. It is quite possible that a man, by mistake, may have charged too high a price and yet not have made a halfpenny out of the transaction. He may never have intended to make a profit. He may have acted purely under a misapprehension, and surely in such a case the Court should be empowered to impose a purely nominal penalty and not be compelled to inflict this double penalty.

Mr. WATT

I am very much surprised that the Government have not seen fit to accept the Amendment. I have listened to the whole Debate, if Debate it can be called. Practically every Member who has spoken has suggested to the Government that the Amendment should be accepted, and it is very difficult to understand why that advice has been rejected. I am driven to this conclusion, that the Solicitor-General, in the earlier part of the Debate, thought he could steam-roller the right hon. Gentleman the Member for Islington (Mr. Lough). He now finds he cannot, but his amour propre prevents him going back upon the position he originally took up. The same remark applies to the Under-Secretary to the Food Ministry. He felt that the Government as a whole must go in for unity, and his learned Friend having said a certain thing he could not go back upon it, whatever his personal views might be. I hope the right hon. Gentleman the Member for Islington will divide the Committee upon this Amendment, or that the Government will change its views. The discretion of magistrates in this matter ought not to be taken away. The Solicitor-General knows it is quite usual in Acts of Parliament to give this discretion, and that it is most unusual in actual legislation to insist that magistrates shall penalise defendants at a certain figure. I hope that even yet, with an important Division hanging over their heads, the Government may depart from their present stiff attitude which has simply prolonged the Debate, without having united the Government.

Mr. CLYNES

My hon. Friend who has just spoken may be right in regard to all his points except one, but on that I am certain he is wrong. He has stated that I am keeping up an appearance of unity in the Government, but that in my heart I believe the Amendment should be accepted. My answer is that this deals with the very substance of the Bill, and any modification of the terms of the Bill, such as the acceptance of this Amendment would involve, would be a desertion of the policy of the Ministry. May I repeat again the argument which has already been advanced from this bench, that if this Bill is passed in the terms in which it is submitted there will be three kinds of penalties, and that only in respect of one—namely, where illicit profits have been secured—

Mr. LOUGH

There may be no profits at all; it may be a loss.

Mr. CLYNES

The Ministry of Food has approved a list of prices in which he has admittedly, allowed liberal profits—

Mr. LOUGH

My hon. Friend is taking advantage of my candour and simplicity. There is a large range of prices, and I quite admit that those affecting the trade with which I am most connected treat the trader liberally. But I have had no answer to the question I put about the sale of cattle at the forthcoming market at 10s. over the price fixed by the Ministry of Food.

Mr. CLYNES

That is an illustration which has scarcely any relevance to the real issue before the House. The Ministry of Food fixes the prices at which certain articles of food may be sold, and those prices allow a generous profit to the trader selling them. The Bill now before the House proposes that where the trader or seller secures a price in excess of those fixed by the Ministry he shall return not only the excess, but double the amount of the illicit profit so secured; and I say to do other than that is to run away from legislation which public opinion has demanded and which the House has accepted as quite reasonable. I am not sufficiently acquainted with the law or with the practice of the Courts to settle what is the type of case which has been referred to in this Debate by many Members as a technical case. I take it most offences are technical in the sense that they are violations of certain terms of law passed by this House. Where the offence is technical it is quite within the cognisance of the Court to make some allowance. It need not, for instance, send the accused to prison or impose a heavy fine; it can decide that he shall merely return double the excess or illicit profit which he has secured. We are therefore not imposing any fetter on the action of the Court or taking away from it any discretion which it generally possesses. The whole answer with regard to the cattle question is that the live-weight prices do not operate in Ireland in the sense in which they operate in England, and therefore the transaction to which the right hon. Gentleman has alluded will not be in the nature of an offence.

Mr. LOUGH

But the 76s. price runs in Ireland!

Mr. CLYNES

I repeat that the live-weight prices are not in operation in Ireland in the sense in which they are in England. I do not desire in any sense to impeach the traders of this country as wrongdoers to a greater extent than any other section, but I say the Ministry of Food has been driven to bring forward this Bill by cases where people have repeatedly offended against the law and have found it profitable to do so. I think the House may take it that there will be no purely technical offender injured by this Act, and that on the whole this Bill is a real necessity.

8.0 P.M.

Mr. PRINGLE

I regret that the Government, in spite of the appeal made to them, have hardened their hearts. The only defence which has been advanced for this extraordinary penalty is the statement that a number of traders have in the past found it profitable to commit offences under the Act, and that the present penalty has proved insufficient to debar them doing so. If that be the case, why not provide in this Bill that where a man, after a first conviction, offends again, this double penalty shall be imposed? That would be a perfectly fair way of dealing with such people, who know what they are doing when they charge these excess prices, and at the same time it would give the Court discretion to deal with cases where the offence has been purely technical and unpremeditated. I wish one of the Scottish Law Officers had been here, because the administration of this Regulation in Scotland has been attended with difficulties and brought about decisions somewhat different from those which have been come to in this country. I understand that the Court of Justiciary in Scotland has held that the Orders of the Food Controller are too vague to offer material for constituting an offence in Scottish law. If that is the situation, you are going to have the extraordinary

anomaly of people getting off scot free under the Scottish decision, while other people who are doing the same thing south of the Tweed are being mulcted in heavy penalties. Obviously this would not apply in Scotland at all, because the High Court of Justice has held that under these Food Orders it is impossible to constitute an offence in Scottish law. It is not only Ireland—

Mr. LOUGH

It is going on all over the country.

Mr. PRINGLE

They will be able to do the same thing in Scotland, and there is nobody on the Government Bench who can tell us what is going to be the position in Scotland. I put it to the Government that the High Court has given this decision in a test case. It will cover a great many other cases, and if the prosecutions under the existing Regulations cannot be successful in Scotland then your authority is not going to apply there either. I think when you are altering the law as you are doing in this Bill we must insist on knowing what the effect is going to be in all parts of the United Kingdom. There is no one on the Government Bench who can give us any information on this point, and in those circumstances I think it is my right hon. Friend's duty to divide the Committee.

Question put, "That the words 'equal to' stand part of the Clause."

The Committee divided: Ayes, 90; Noes, 25.

Division No. 31.] AYES. [8.3 p.m.
Adamson, William Edwards, Clement (Glamorgan, E.) Lloyd, George Butler (Shrewsbury)
Agg-Gardner, Sir James Tynte Fell, Sir Arthur McCalmont, Brig.-Gen. R. C. A.
Archdale, Lieut. Edward M. Flannery, Sir J. Fortescue Marks, Sir George Croydon
Baldwin, Stanley Galbraith, Samuel Morison, Thomas B. (Inverness)
Barnes, Rt. Hon. George N. Gibbs, Colonel George Abraham Munro, Rt. Hon. Robert
Barnett, Captain R. W. Griffith, Rt. Hon. Sir Ellis J. Nield, Sir Horbert
Bathurst, Col. Hon. A. B. (Glouc., E.) Hall, Lt.-Col. Sir Fred (Dulwich) Pennefather, De Fonblanque
Beck, Arthur Cecil Harris, Percy A. (Leicester, S.) Perkins, Walter F.
Bowerman, Rt. Hon. C. W. Havelock-Allan, Sir Henry Peto, Basil Edward
Brace, Rt. Hon. William Herbert, Col. Hon. A. (Somerset, S.) Pollock, Sir Ernest Murray
Brassey, H. L. C. Hewart, Rt. Hon. Sir Gordon Pretyman, Rt. Hon. Ernest George
Carew, C. R. S. Hewins, William Albert Samuel Prothero, Rt. Hon. Rowland Edmund
Cator, John Hodge, Rt. Hon. John Pryce-Jones, Colonel E.
Clynes, John R. Hope, James Fitzalan (Sheffield) Raffan, Peter Wilson
Coates, Major Sir Edward Feetham Hudson, Walter Randles, Sir John S.
Compton-Rickett, Rt. Hon. Sir J. Hughes, Spencer Leigh Rees, G. C (Carnarvonshire, Arfon)
Cornwall, Sir Edwin A. Jones, Sir Edgar R. (Merthyr Tydvil) Richards, Rt. Hon. Thomas
Craig, Colonel Sir J. (Down, E.) Jones, J. Towyn (Carmarthen, East) Robinson, Sidney
Currie, George W. Jones, William S. Glyn- (Stepney) Samuel, Samuel (Wandsworth)
Dalziel, Davison (Brixton) Jowett, Frederick William Smith, Capt. Albert (Lancs., Clitheroe)
Davies, Ellis William (Eifion) Kenyon, Barnet Spear, Sir John Ward
Dawes, James Arthur Lane-Fox, Major G. R. Stewart, Gershom
Denniss, E. R. B. Larmor, Sir J. Stoker, R. B
Dougherty, Rt. Hon. Sir J. B. Law, Rt. Hon. A. Bonar (Bootle) Strauss, Edward A. (Southwark, West)
Duke, Rt. Hon Henry Edward Levy, Sir Maurice Sykes, Sir Mark (Hull, Central)
Duncan, C. (Barrow-in-Furness) Lewis, Rt. Hon. John Herbert Thorne, William (West Ham)
Tickler, T. G. Ward, W. Dudley (Southampton) Winfrey, Sir Richard
Tootill, Robert Wardle, George J. Wood, Sir John (Stalybridge)
Tryon, Captain George Clement Wilkie, Alexander
Walker, Colonel William Hail Williams, Col. Sir Robert (Dorset, W. TELLERS FOR THE AYES.—Lord E. Talbot and Mr. Parker.
Walsh, Stephen (Lancs., Ince) Wilson, W. T. (Westhoughton)
NOES.
Arnold, Sydney John, Edward Thomas Outhwaite, R. L.
Baker, Joseph Allen (Finsbury, E.) Jones, Henry Haydn (Merioneth) Rowlands, James
Burns, Rt. Hon. John Jones, Rt. Hon. Leif (Notts, Rushcliffe) Thomas, Sir A. G. (Monmouth, S.)
Clough, William King, Joseph Watt, Henry A.
Cory, Sir Clifford John (St. Ives) Lambert, Richard (Wilts, Cricklade) Wedgwood, Commander Josiah C.
Davies, David (Montgomery Co.) Macdonald, J. Ramsay (Leicester) Williams, Llewelyn (Carmarthen)
Gilbert, J. D. Maden, Sir John Henry
Gretton, Colonel John Morrell, Phillip TELLERS FOR THE NOES.—Mr. Lough and Mr. Pringle.
Hinds, John Nuttall, Harry
Holt, Richard Durning

Question put, and agreed to.

Mr. LOUGH

I beg to move, at the end, to add the words, "Provided that a Return shall be made to this House of all prices to which the Act applies, and that no prosecutions shall take place under it until the Order has been laid upon the Table for twenty-eight days."

In moving this Amendment, I would make this appeal to the Government. They have provided nothing in the way of security that these prices shall be known. It must have occurred to my hon. Friend (Mr. Clynes), in considering these Amendments, that some effective notice should be given to the large classes that will be affected by these prices, and that they may be liable to very heavy penalties. This is the second Amendment I have moved with the object that people should not be taken unawares. I now move it formally in order to give my hon. Friend an opportunity of replying.

Mr. CLYNES

I regret I am unable to accept the terms of this Amendment, though I quite see the object my right hon. Friend has in view, and I have a great deal of sympathy with that object. I think it might be obtained by some course other than that suggested in this Amendment. In effect, if this Amendment were passed it would not add materially to the notice which the trading community now receives of the various Regulations and Orders that determine the prices of the various articles. If we lay on the Table of this House every one of these Orders, even for twenty-eight days, I doubt whether that act in itself would cause one single trader to be any the wiser. I doubt whether any man would come to this House and ask to be taken into the library in order to see the terms of the Regulations. Such an Amendment would not, therefore, attain the object of securing the wider publicity for the Orders of the Ministry which my right hon. Friend has in view. The Food Ministry does endeavour to make known as widely as possible its decisions on these questions. It is not a concession to the trading community; it is a duty on the part of the Ministry. It circulates fortnightly many thousands of copies amongst the trading community, amongst the 2,000 local food committees, and these copies contain fully the various Regulations dealing with prices. It circulates, in addition to that, thousands of leaflets giving fully the terms of our various Regulations. These all find their way in turn into the trade papers, according to the interests of the persons whom they affect. Moreover, it uses every day the Press of the country, rather extensively as my right hon. Friend has pointed out on previous occasions, in order to make known what are the decisions and Regulations of the Ministry. So, by circulars, pamphlets, press communiqués, and the ordinary trumpeting of the news abroad, the persons who are going to be affected by this Bill will be more fully informed of our actions than they could possibly be by placing any decisions or actions of ours on the Table of this House. I can assure my hon. Friend opposite that I will see what the Ministry can do in order to ensure fuller publicity and the more effective circulation of the Regulations of the Ministry, but I cannot accept the terms of the Amendment, which would not really serve the purposes which he has in view.

Mr. LOUGH

I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Mr. HOLT

I beg to move, at the end, to add the words, "Provided that nothing in this Section will operate so as to render valid any Order made by the Food Controller which, but for that fact, would not be valid."

All these Orders purport to be made under the Defence of the Realm Act. I am quite certain that not one single person ever believed that the Act could be used for the purpose of fixing the maximum price for food or any other article. I do not think that the Act would have been passed if that had been in people's mind. If I personally were brought under one of these Orders of the Food Ministry, I should take it through all the Courts in order to have it tested. I object wholly to the policy of the Government of fixing maximum prices which might, but for the effect of this measure, be held by the Law Courts to be ultra vires. The object of the Amendment is to leave it quite open to those who come under the Regulations to test their validity.

Sir G. HEWART

I welcome the pledge of the hon. Member that if he should ever be prosecuted under any Regulation of the Food Controller he will carry it through all the Courts to have it tested. I am quite sure that some of my colleagues at the Bar will welcome that statement, and I hope that my hon. Friend will not disappoint them. The hon. Gentleman appears to think that if this Bill becomes law it will prevent him, if he were being prosecuted, from raising the plea that the Regulation was ultra vires. I beg to assure him that when the Bill becomes an Act it will not give validity to any Order which would otherwise be invalid, and it will be no less open to the hon. Member, after the passing of this Bill into law, to allege, if he please, that the Order under which he is being prosecuted is ultra vires.

Mr. HOLT

In view of that, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 1, as amended, ordered to stand part of the Bill.

Clause 2 (Short Title) ordered to stand part of the Bill.

Bill reported; as amended, considered; read the third time, and passed.