HC Deb 07 March 1930 vol 236 cc876-88

Order for Second Beading read.

Mr. KELLY

I beg to move. "That the Bill be now read a Second time."

Unfortunately, we have had many cases of bribery and corruption arising in this country, and this Measure has been brought forward to enable stronger action to be taken against offenders. Under the law as it stands, before action can be taken the fiat of the Attorney-General has to be obtained. Under this Measure it is proposed that proceedings may be taken without the necessity of obtaining that fiat. There may be certain points in the Measure which will have to be altered, but I am sure the House will agree with our object in wishing to rid commercial life, and every side of life, of any bribery and corruption.

Mr. TINKER

I beg to Second the Motion.

Sir B. EYRES MONSELL

I beg to move, "That the Debate be now adjourned."

I do not wish to enter for one moment into the merits or demerits of this Bill, because I do not know it, but I must draw attention to the fact that there is practically nobody on the Treasury Bench to express the view of the Government about this most important Measure. The House ought not to be asked to proceed with a Bill of this magnitude, which affects the position of the Attorney-General, until we have had some statement from the Government as to their wishes and the line which they intend to pursue in the matter.

Mr. KELLY

This Measure has been on the Order Paper daily for many weeks now, except for one occasion when through some misunderstanding there was an interval of two days. It ought to be well known to Members, and when an opportunity occurs for the Measure to go forward we ought not to be asked to adjourn.

Mr. TINKER

I do not see why there should be an adjournment. If hon. Members care to stay in order to get business through we ought to be able to take full advantage of the opportunity which is given to us.

Viscount WOLMER

Surely, the fact that this Measure has been on the Order Paper for some time makes it all the more reprehensible on the part of the Attorney-General that he is not here to advise the House. The House is entitled to the guidance and advice of the Law Officers of the Crown on a matter of this sort, and I should like to know why no Law Officer is present. We are entitled to make this protest. Surely, we ought to have a word of explanation as to where the Attorney-General is, and whether we are going to receive any guidance from the Government on this matter. This Bill is another example of legislation by reference, and therefore it becomes all the more important to have some legal advice as to what the Bill means. I hope that someone on the Treasury Bench will be able to say whether the Attorney-General has been asked to come into the House, and, if that is so, then we may have his advice and guidance before the Debate comes to an end; but to ask the House to proceed with a Bill of this sort without there being a single Cabinet Minister on the Treasury Bench or, so far as I know, a single Law Officer within the precincts of the House, is not treating the House of Commons with respect.

I am pleased that the Solicitor-General has come into the House, and I will put to him the question which was put by my right hon. Friend the Member for Evesham (Sir B. Eyres Monsell) a few minutes ago. This is a Bill which has been on the Order Paper for some considerable period, and the House is now in a position to deal with it. It is a piece of legislation by reference, and it deals with matters which are somewhat technical. Therefore, I think the House is entitled to have the guidance and advice of the Solicitor-General, and to know from him whether the Government entertain any objection to this Measure. Perhaps the Solicitor-General will advise the House as to the course which we ought to pursue.

Sir B. EYRES MONSELL

Before the Solicitor-General came into the House there was no Law Officer to advise us, but we had the advantage on this side of being able to consult an ex-Law Officer of the Crown; he assures me that there is no harm in this Bill, and I beg to ask leave to withdraw my Motion.

Motion, by leave, withdrawn.

Question again proposed, "That the Bill be now read a Second time."

The SOLICITOR-GENERAL (Sir James Melville)

Although I was not in my place when this Order was reached, I was within the precincts of the House, and I would not like the House to think that I was treating it with any discourtesy. I am particularly fortunate in being here when the Attorney-General is absent, because it gives me an opportunity, for the first time, of addressing the House, and I would ask the House to treat even a Law Officer making his maiden speech with the indulgence which he requires just the same as any other hon. Member of this House.

This Bill is one which the Government cannot support, and which I must ask the House to reject. I do not understand what are the reasons which commend themselves to the House in support of this Bill. The Prevention of Corruption Act, as it stands, provides for the necessary fiat of the Attorney-General or the Solicitor-General before there can be a prosecution under the Act. I have had an opportunity of reading the observations made by the hon. Member for East Wolverhampton (Mr. Mander) when he obtained leave to introduce this Bill, and I gather that the reason why he suggested that the Prevention of Corruption Act should be amended was because of the delay and the expense that was involved in putting it into operation. There is no point whatever in the allegation as to delay, because the fiat can be issued even within a day of the application being made. It is a perfectly informal matter. An application is made to the Law Officers Department and the Department invariably deals with it with the greatest promptitude. Such applications need only to be fortified by a statutory declaration verifying the facts. Consequently to say that the procedure adds to the cost of the proceedings and to allege that it involves delay really has no foundation in fact.

What are the reasons which hitherto have prompted most of the leading members of the legal profession who have been responsible in connection with this matter to be urgent in their support of the retention of the fiat? It is because this class of prosecution is one that lends itself very particularly to a form of blackmail. It is very easy, when some kind of favour or some kind of consideration has been given by one person to another in the course of business, for the evilly disposed donor to turn round upon the unfortunate man with whom he has been dealing, and who has been the agent of someone else, and say that he is either going to tell his employer or, worse still, to prosecute him under the Prevention of Corruption Act, unless he does something or other. What was felt by the weightiest authorities to be necessary for the proper working of this Act was that, before what might well be not merely a vexatious but a wicked prosecution, there should be the protection afforded by the fiat of either the Attorney-General or the Solicitor-General. That was not merely a view that was expressed in 1907; it was a view that was carefully considered and debated in this House when there was a Bill, which became an Act, to amend the provisions of the Act of 1907. I am alluding to the Prevention of Corruption (Amendment) Act, 1916. The matter then was very fully discussed in the House on Second Reading, there was an Amendment in Committee, and the matter was again discussed in another place. The feeling of this House was strongly expressed on the Amendment in question. I am not sure at the moment whether it was dropped, but at all events it was never carried. There has been no change in circumstances which should justify the House in altering the considered view that was then expressed.

This fiat does operate to prevent un necessary prosecutions. It gives a discretion to the Law Officers in a class of cases where discretion is peculiarly necessary. If an application is made on a sworn information before magistrates, the magistrates have really no discretion in the matter, but are bound to order a prosecution. The Law Officers, on the other hand, have the duty, the responsibility, and the opportunity of considering the statutory declaration which supports the application for the fiat. They have a full opportunity of considering whether a prosecution is really necessary in the interests of the public, and the applications are invariably given careful and, of course, personal, and not merely mechanical, consideration. It cannot be said that the fiat has operated to stifle the working of the Act, because, out of 849 applications which have been made for fiats under the Act, only 51 have been refused. I think that that shows that the Law Officers have not stifled the working of the Act, but, on the other hand, it does disclose a number, and a sufficient number, of cases where the Law Officers have felt that the circumstances did not warrant a prosecution, or where they have felt, upon reading the papers, that there was something unpleasant lurking behind the application. We have to remember that, to either a commercial man or a servant of a public corporation, the mere formulation of a charge of corruption before a magistrate's court is in itself an extremely serious matter.

I would also like to make this observation to the House. The question whether the fiat of the Attorney-General or the Solicitor-General, where the Solicitor-General is associated in this power with the Attorney-General, if a little wider than would appear from this Bill-There is a whole series of Acts of Parliament which provide, as regards both criminal and civil proceedings, that the fiat of the Attorney-General shall be required before proceedings can be instituted. The fiat should not, in my submission, be considered in connection with the matters covered by this Bill alone. If it is desired to sweep away the fiat of the Attorney-General, it should be done after careful inquiry and after hearing more than we can possibly hear today about any alleged injustice that may be caused by the working of the fiat. The fiat, as I have said, operates under a wide series of Acts, and I would ask the House to consider very carefully indeed before the fiat is taken away from the working of the Prevention of Corruption Acts, where, in my submission, it has proved to be useful, and has worked without causing delay and without causing more than infinitesimal costs. I ask the House not to give this Bill a Second Heading.

Mr. MacROBERT

I congratulate the learned Solicitor-General on having had this opportunity of making his maiden speech, and I hope that he will often be heard in the House. In some ways this is, perhaps, a rather unfortunate occasion on which to make one's maiden speech. I thought that the Solicitor-General was brought in to bless the Bill, but he remained to curse it. However, we are very glad to have had an opportunity of hearing the view of the Law Officers, because the question will be vitally affected by it. Personally, I should have been inclined to favour the view of the Solicitor-General, because in Scotland we do not have any prosecution without the consent of the Lord Advocate; but then we have, if I may say so, a much better system in Scotland, because we do not allow private prosecutions—they are all public prosecutions, and, therefore, are all under the control of the Law Officers of the Crown. The practice in England, however, is different, and the question seems to arise as to why, if the law of England allows of private prosecutions, the Attorney-General or the Solicitor-General should come in.

It seems to me that, if the Law Officers of the Crown are now satisfied that the principles of the law of Scotland in this respect are better than the principles of the law of England, they should bring in a comprehensive Bill to deal with this question, but there seems to be no reason why, in a particular class of prosecutions—just an ordinary kind of criminal prosecution—the Attorney-General and Solicitor-General should be consulted any more than in any other kind of case. I understand that under the law of England a private prosecutor, in a case of this kind, may go to the court and institute proceedings of a criminal nature against a fellow-citizen, and that is a thing which is repugnant to me personally as a Scottish lawyer. It is quite right that we, on this side of the House, should have desired the presence of one of the Law Officers, and it seems to me that it is very fortunate that someone on these benches called attention to the fact that the Law Officers had not yet arrived, no doubt because the proceedings on the previous Bills terminated more quickly than they anticipated. It is fortunate that the Solicitor-General happened to be within the precincts of the House at the proper time, and that his brief arrived in time likewise, and that he was able to give us his full views on the subject. Upon the assumption that private prosecution is the ordinary thing in England, he does not seem to have made out any particular reason why in this class of case it should require the consent of the Attorney-General or Solicitor-General, although I should readily approve of a Bill which made the Law of England compare favourably with the Law of Scotland.

Mr. MANDER

I support the Second Reading. The Bill is backed by Members on all sides of the House, it arouses no strong opposition in any quarter, and the mere fact that a Department of State which has for some years had the task of administering it as part of its work is now reluctant to surrender congenial work it has been in the habit of doing very ably does not seem to me sufficient reason to outweigh the very strong arguments that can be brought against allowing this obstruction to the course of justice to be allowed to continue. The first Act came in in 1906, and the Attorney-General's fiat was put in wholly and solely to satisfy that remarkable veteran the late Lord Halsbury. On the other hand other great lawyers of the time were entirely in favour of leaving out the fiat. I cannot recall all their names, but Lord Alverstone and Lord Russell of Killowen were entirely opposed to it. It was only to meet the redoubtable obstruction continued for years by Lord Halsbury that it was put in. Experience has shown that it is quite unnecessary to keep anything of the kind in the Act. I am afraid bribery is rampant to-day in many trades. It is an abominable and disgraceful thing which those who indulge in it hate as much as anyone else, and they only do it because it happens to be the custom in their trade, and they do not see very often how they can avoid it. Any machinery that makes it more difficult to get rid of bribery is a thing that we ought not to give any support to at all. We want to make it as simple and easy as we can for people who have information to bring it forward and to take proceedings under the appropriate Act to bring offenders to trial. If you have to get over two fences, if you have first of all to satisfy the Attorney-General and then to go to the ordinary court after that and go through the ordinary procedure, you have a quite unnecessary obstruction placed in your way. You have a double trial.

Why is this crime singled out from all others? There are lots of far more abominable and serious cases that one could think of where blackmail might arise. It is not considered necessary in those cases to get the Attorney-General's fiat. It is a sheer accident that it happens to be included, for the reasons I have stated. We do not want to increase the powers of the State Departments. We want to give people who are aggrieved the right to go straight to the courts of law without any kind of interference by the executive. The Lord Chief Justice might well have mentioned this in his recent book showing the great power that is increasingly being exercised by the executive of the Departments of State over the ordinary lives of citizens. I hope very much that the House will give the Bill a Second Reading and will do something to make it easier to get rid of one of the curses of commercial life.

Mr. ARTHUR HENDERSON, Junr.

I rise to say a few words, but from an entirely different point of view from the last speaker. There is a good deal to be said for the present law as it applies to corruption, and I am afraid, if we remove the checks contained in the present law, we shall make it too easy to promote charges of corruption. There are many borderline cases. There is a very minute difference between what is unlawful and what is immoral, and the object of the law is to make it difficult for people to launch prosecutions in respect of acts of alleged corruption without a very clear case having been established. There are many cases where gifts are made by A to B and such transactions are regarded as being quite innocent. There are other cases where they would be clearly unlawful. The law says in both cases that, if it is desired to prosecute, the facts shall be referred to the Attorney-General or the Solicitor-General, and, before a prosecution can be launched, the fiat of one of those Law Officers must be obtained. If you remove that check, you are going to widen the scope of possible prosecutions, in many cases perhaps where they will fail. That is not very much satisfaction to the person who is being prosecuted. It is not like a civil case. The mere fact of bringing a prosecution is a stigma on the person who is prosecuted.

With the short experience I have had at the Bar, I should hesitate to do anything that is going to bring about such a state of affairs. The effect of the Bill will be to remove a safeguard and put a premium upon possible cases of exploitation. You have two people, for example, who have been carrying on a certain course of conduct. They fall out. One of them can give information, and a prosecution will be brought, although it may well be that in such circumstances there should be no prosecution. Under the present law, the fiat must first be obtained, and, unless the Attorney-General or Solicitor-General is satisfied that on the facts, in the interest of the public weal, the prosecution should be launched, he will refuse his fiat.

Mr. MANDER

Can the hon. Gentleman explain why this crime, of all others, should be singled out to be dealt with in this way?

Mr. HENDERSON

It is because of the fact that we are dealing with corruption. I have said that there is a very minute distinction, and there are many borderline cases. You have gifts passing from one person to another, and the question whether that transaction is corrupt or not is very difficult to determine. It may be perfectly lawful and yet very undesirable from the moral point of view. It is very much akin to cases of blackmail, where the fact that one has put oneself into a compromising position may well bring about a prosecution. The Attorney-General does not decide this solely as a question of morals. He has to consider whether it is against the public interest or whether it constitutes an offence in law. If this machinery is removed, and any individual who thinks another individual has done something which is bad may bring a prosecution, that is going to widen the field, and we shall probably have quite a crop of prosecutions, which may be a very good thing from the point of view of those who belong to my profession, but not from the point of view of the general public.

Mr. MARKHAM

One of the things which I have learned from my very short experience of this House is that when lawyers get together it is a case of the layman having to look out for himself. We have had a remarkable instance of lawyer co-operation in this respect. It makes one, as a layman, extraordinarily suspicious. We have to bear in mind that a case has arisen. There has been an appeal since the General Election in one constituency, and there the unfortunate Member who sits on this side of the House had to go through all this rigmarole of appeal to the Attorney-General and so on, and it was found that his costs beforehand came to £6,000. I should like to invite the Solicitor-General to give some information regarding the costs of appeal to the Attorney-General or the Solicitor-General? If there are no costs at all, are not preliminary costs involved in getting an appeal presented through the normal medium of solicitors and counsel and so on? I should have been grateful if he could have given more information regarding the cases of employers and employed. Can these cases which involve blackmail be taken up by any others means than by an appeal through the Attorney-General? These charges of corruption and bribery are the second most important class of political crimes in the country, and it seems to be absolutely anomalous that political crimes should have to be decided, in the first place, by the Attorney-General before they can be heard in a Court of Law. I support the Bill and sincerely hope that it will be allowed to go through to-day.

Mr. MARLEY

I hope that this Bill will get its Second Reading to-day in spite of it having been said that no reason has been given why these cases should not be submitted to this kind of treatment as against any other kind of cases. I am not interested in the number of cases which have been heard, but in the number of cases which have been prevented from being heard because of the restrictions placed upon them. It was my unfortunate experience when I lost my seat after the election of 1924 to go into business instead of resuming my profession as a schoolmaster. In three months, I had seen so much disgusting corruption that I left it and went back to school. I must confess that I had to give gifts here and there all over the place in order to obtain contracts and orders to carry on business. This class of corruption grows. As competition becomes more keen, this class of corruption, the giving of gifts in order to obtain orders and contracts, is growing very rapidly. If there is only one way of dealing with this matter by applying to the Attorney-General or to the Solicitor-General, it involves a long process, and shielded by the Attorney-General—the fact that you have to take this difficult way—many cases are not brought which otherwise would be brought. I am not suggesting that, after the passing of this Bill, the number of cases will increase, but I am suggesting that the very fact that you may adopt the same method of prosecuting as in the case of private prosecutions, will reduce the whole scandal. It will prevent the growth of corruption which is going on in commerce to-day.

The hon. Member for South Cardiff (Mr. A. Henderson, Junr.) pointed out that there were a number of cases in which sometimes the gifts might be immoral but not illegal. That is quite true. I want to see the law strengthened so that all these cases which are really immoral cases should also become illegal cases. It may be thought that the opinion of the Attorney-General or Solicitor-General in deciding that a case should go forward would prejudge it. I know that you have to make out a prima facie case before a prosecution, but why should we differentiate in these cases? I do not think that attempts at blackmail would be increased if the ordinary method of private prosecution were adopted. I do not believe anyone is going about trying to prosecute others on false charges, or because they feel that they have a chance of winning a case. When disputes arise between two people who have been acting in business together, there is always the fear that, if the person with whom you have been associated has more influence in taking the case to the Attorney-General, you may be the loser. You may thereby be constrained from doing the very thing you desire to do. If private prosecutions were instituted, I am certain you would not have an increase in the number of cases, but a great decrease of the corrupt- tion which goes on in commercial life to-day.

Question put, and agreed to.

Bill accordingly read a Second time, and committed to a Standing Committee.

Whereupon Mr. DEPUTY-SPEAKER (Mr. Dunnico) adjourned the House, without Question put, pursuant to Standing Order No. 3.

Adjourned accordingly at Eight Minutes before Two o'Clock until Monday next, 10th March.