§ Mr. NEIL MACLEAN
I beg to move, in page 4, line 15, to leave out from the words "moveables," to the end of the Sub-section.
The Amendment means that the individual hirer would not be in any fear of being put into prison for failure to deliver up the article. The Secretary of State and the Solicitor-General are well aware that this question of putting an individual into prison and keeping them there for a number of days is one of serious importance. Cases were cited during the Second Reading Debate and during the Committee stage where individuals were placed in prison, in one case for 50 days, for an amount outstanding of only a few shillings. The main purpose of the Bill when it was introduced was to do away, if possible, with imprisonment. The question was keenly debated in the Scottish Standing Committee and also the question of recurring sentences, but we think that it is necessary that we should draw the 'attention of the House on the Report stage to this matter just as we did in Committee. It is evident that those who have been in touch with the traders who have been supplying the goods have come re-fortified with information on various points of advantage to the trading section of the community, and it is only right that we should again place before the House the point of view that is held, in the West of Scotland particularly, with regard to the imprisonment that has been imposed upon certain people.
In Scotland we do not object to any representations coming from other Members of the House who represent other parts of the country, but we do insist that so far as the people of Scotland are concerned they should not labour under disadvantages and that they should be placed on an equal footing with citizens in other parts of the United Kingdom, whether the trading company comes from Coventry or from Birmingham or any other part of England. Whether it be a 868 cycle firm, a wireless manufacturing firm, or a furnishing firm, we are unconcerned, but we are concerned that the people of Scotland who, through unemployment or other unfortunate circumstances, are unable to maintain their instalments, should not be put into prison at the behest either of a Coventry firm or a Birmingham firm. Hon. Members from the Birmingham district have been speaking and have endeavoured to make out that the trader is suffering many disadvantages. One disadvantage which the trader does not suffer is that of going to prison. The hon. and gallant Member for Coventry (Captain Strickland) produced letters from trading firms to the effect that they may have to stop their trade with Scotland if this Bill goes through. During the Second Reading Debate and in the Committee stage a number of hire-purchase agreements were produced, documents of a most iniquitous character, issued by the hire purchase firms, laying down many onerous conditions and many unscrupulous conditions upon individuals who hired articles from them. It was felt the time had come to bring forward legislation to put a stop to some of the things that have been done by the hire purchase trade.
If the Solicitor-General cannot accept the Amendment, I hope that he will at least do something to abolish imprisonment by recurring sentences. If he is prepared to do something in that line I may be able to withdraw this Amendment, with the consent of my colleagues, but we do stand definitely against the method of putting individuals into prison for failure to maintain their hire purchase agreements, and we also protest against their becoming liable to recurring sentences of six weeks at the end of every three months.
The SOLICITOR-GENERAL for SCOT-LAND
I earnestly appeal to my hon. Friend to withdraw the Amendment. If it were adopted, the result would be to make the whole procedure for enforcing the return of an article inept and nugatory. In regard to grants of decree for the delivery of any article, no matter whether a hire purchase article or not, the only sanction and power to enforce resides in the ultimate power of imprisonment. Take that away and the decrees 869 for redelivery of articles, whether under a hire purchase system or not, ceases to be of any effect. That is an entirely impossible situation. It may help the hon. Member to withdraw the Amendment if I say that I am glad to see a subsequent Amendment standing in the names of hon. Members from all quarters of the House, which would have the effect of abolishing recurring sentences. I respectfully suggest that on the lines of rejecting the present Amendment and accepting the other one, a reasonable compromise might be effected.
§ Mr. DUNCAN GRAHAM
I am sorry that the Solicitor-General has refused to accept the Amendment. I am informed that the custom in operation in Scotland with regard to imprisonment is comparatively new. [Interruption.] That is my information. My information is that until a decision of the Sheriff Court in Glasgow, a few years ago, a man could not be put into prison for failure to comply with a contract of this character. I do not argue that that version is correct, but if it is true it means that imprisonment for this particular offence, which is not a crime, or which ought not to be a crime, has been created by the result of judge-made law and not by legislation.
The necessity for legislation on the lines suggested by the Amendment has been obvious for some considerable time to everybody connected with the administration of the law in Scotland. The committee was long overdue, and there is no doubt that the conditions to-day are very much worse than they were when the committee was appointed. At least 95 per cent. of the members of the working class who enter into contracts of this kind will keep their contract; at the same time, there is a percentage of the population who are not in a position to do so owing to circumstances over which they have no control. In this matter England benefits to the disadvantage of Scotland. We are much more unfortunate in the matter of unemployment, and what we are attempting to do now is to prevent the hirer having the right to bring a man from Aberdeen to Glasgow. He may be unable to come all that distance, and although he may have a very good defence the Sheriff has no choice but to order him to go to prison. I am pleased to note that the Solicitor-General is in favour of putting an end to recurring 870 sentences, but I should have preferred no sentence of imprisonment at all. If the man is in prison he cannot pay.
§ Captain STRICKLAND
The hon. Member, I think, is under a misapprehension. Does he wish to convey to the House that a man can be put into prison for not paying; or does he understand that under the Bill the only way is when he willfully defies an order of the court to return goods which are not his? A man can only be sent to prison for refusing to return goods which are not his. This has nothing to do with payment.
§ Mr. GRAHAM
If he returns the goods, then it may be a question for the court as to whether they are in a satisfactory condition.
§ Captain STRICKLAND
This is not a case where the goods must be returned in a fair condition as to wear and tear. This is a case where the court orders the goods to be returned in whatever condition they are, and the only case in which a man can be sent to prison is if he wilfully defies an order of the court to return what is left of the goods.
§ Mr. GRAHAM
If he returns the goods, then the Bill, in another Clause, provides that they must be in a good condition.
§ Mr. GRAHAM
We will leave it at that. The man will always be at a disadvantage, inasmuch as the hiring company can employ the best legal service which the man is not able to afford. I enter into a contract and I get a bicycle, which is quite satisfactory. Then there comes a time when I am unable to pay the instalments. I am asked to return the bicycle, but I do not want to do that because I want to keep it; I want to pay the instalments. It is not a question of trying to get out of the obligation. It seems to me that in certain conditions a man who is honestly anxious to keep his contract may find himself in prison. I prefer that the hirer should be put in the same position as any other person or company to whom payments are due, 871 and that he should go by civil process and get a return of the money. If that fails, then he can pin the man's goods or his wages. There are any number of ways in which it can be done without the necessity of sending the man to prison.
§ Mr. N. MACLEAN
In view of the statement made by the Solicitor-General that he is going to do away with one of the obnoxious Clauses of the Bill, I ask leave to withdraw the Amendment.
§ Mr. DEPUTY-SPEAKER (Sir Dennis Herbert)
If the hon. Member wants to speak on it, the Amendment cannot be withdrawn.
§ Mr. BUCHANAN
I want to put one point to the Solicitor-General. Suppose a man who has obtained a gramophone or a bicycle on the hire purchase system finds himself in arrears of rent and the landlord puts in a claim. These goods may be taken and the man may find himself in a very awkward position. Can he be sent to prison in those circumstances?
§ Mr. NORMAND
My answer to that question is, no. The only way under the Bill by which a man can find himself liable to imprisonment is that by his own wilful action he fails to return the goods on an order of the court.
§ Amendment negatived.
§ Mr. GUY
I beg to move, in page 4, line 30, to leave out the words "be proved," and to insert instead thereof the words "appear to the court."
This Amendment raises the point of the onus upon the owner to prove wilful refusal by the hirer to redeliver the goods. I would like to remind the House that the object of Clause 7 is to make it more difficult for an innocent or an ignorant hirer to be put into prison. Members of the Scottish Standing Committee are aware that one of the main objects of the Bill was to do away with what was admittedly an abuse of the hire purchase system whereby a trader could get a decree for delivery in Glasgow against a hirer in Aberdeen. The hirer, not having carried out that decree, could be put into prison, although he might have had a perfectly good defence, or a 872 perfectly good explanation as to why he had not returned the article, if he had been able to attend in Glasgow when the decree was granted. The possibility of that abuse has been swept away by Clause 4 of the Bill and now it is only possible for a hirer to be put into prison, after a decree of delivery has been pronounced in favour of the trader if, after there has been a search of the hirer's house, the hirer wilfully refuses to return the article.
I think it has been made clear that the hirer is not to be put into prison in circumstances such as those indicated by the hon. Member for Hamilton (Mr. D. Graham). I think the hon. Member was labouring under a serious misapprehension in that respect. But let us assume that the case has reached the point at which a decree of delivery has been pronounced and let us also assume that the hirer has paid a substantial proportion of the instalments. That raises a difficult question which I think is not fully covered by Clause 3 and I think that is the kind of case which the hon. Member for Hamilton had in mind—a case where a hirer had paid a substantial amount of the instalments and just held on to the article. He is holding on to this article to which he has no right. Under Clause 7, the owner has to apply to the court for a warrant for imprisonment 10 days after the decree for delivery. If within those 10 days, the hirer returns the article there can be no imprisonment, but if he does not return the article then the trader appears in the Small Debts Court and asks for a decree of imprisonment. But before he can get that decree, as Clause 7 reads now, he has to prove to the court that the hirer is wilfully refusing to return the article and, in the event of the hirer not appearing in court, if there is not correspondence available showing that the hirer is wilfully refusing to return the article it will be difficult if not impossible for the owner to discharge that onus of proof. That might open the way to something very like fraud. I do not like to use the word "fraud," but it might open the way to an abuse of the machinery provided in the Bill. In the event of the owner not being able to discharge the onus of proof the hirer would then be in a position to snap his fingers at the owner, and keep the article and nothing further could be done against 873 him. That would be only an exceptional case, but I think that this Amendment would be a reasonable solution of the difficulty. Its effect would be to leave the onus of proof still on the owner, but to make it a lighter onus, because the Clause as amended would read:The court may, if it shall appear to the court; that the defender is wilfully refusing to comply with the decree, etc.May I say that the wording of the Clause as it stands is not justified by the report of the Fleming Committee because that report suggested the words "if the court is satisfied," which are much nearer to the words of my Amendment than to the words now in the Bill. The words in the Bill originally were the same as the words in the report but Amendments were put up, on one side rather extreme and of the other side, somewhat more lenient, as regards the onus of proof, and at the end of the day an Amendment containing the words in the Bill was carried. If these words remain in the Bill they will put a very difficult and heavy onus on the owner. I suggest to the Solicitor-General for Scotland that he will not be going against the recommendations of the Fleming Committee if he accepts my Amendment; that he will make the machinery of the Bill work more easily, and at the same time that he will leave a substantial safeguard against the possibility of an innocent or ignorant hirer being put into prison through failure to return an article.
The Amendment would still leave it open for the hirer to avoid any sentence of imprisonment by coming forward and providing an explanation to the court as to why he had not been able to return the article. He has only to say that the article has been stolen or has been accidentally destroyed by fire, or whatever the explanation may be. That is a simple thing for him to do and is not putting a heavy burden on him or involving him in any hardship. If he can give satisfactory explanation the court would not pronounce a decree of imprisonment.
§ Captain STRICKLAND
I beg to second the Amendment.
I hope the Government will see their way to accept this Amendment which as my hon. Friend has said only carries out the suggestion of the Committee which considered this question of hire purchase in Scotland. The words of the report on this point are: 874If delivery of the article is not obtained under the decree of the court, the trader should then be entitled to apply to the court for a warrant of imprisonment against the hirer. If he satisfies the court that the hirer is able to implement the order of the court but is wilfully refusing to do so, it will be in the discretion of the court to order the hirer imprisonment for a fixed period.It is a most difficult thing to insist on a man's coming into court under the conditions laid down in the Bill and being able to prove that the hirer is wilfully refusing to surrender certain articles, and it has been made all the more difficult by the wording of other Clauses, because in the case of a sheriff officer being empowered to search, the area of search has been considerably curtailed. It came out during the sittings of the Committee that supposing you had a lodger in a house, who entered into a hire purchase contract, and there came a decree of the court to return certain goods, which he did not return, a sheriff's order might be made for an officer to search, but that search must be rigidly restricted to just the one room or rooms actually in the occupation of the lodger. When you come to the case of a son living at home, who is not in occupation of any particular room, it is impossible under this Bill for the sheriff officer to search any part of that house which is in the occupation of the parents of the son living at home, so it is with the utmost difficulty that any trace can be kept of the articles which it is desired by the order of the court to be returned. There is only one person who can know where they are, and whether he is still in possession of them, or whether he has merely shifted them to some convenient place which cannot be searched, and that person is the hirer.
I do not think anyone would defend the particular hardship under another Clause mentioned by my hon. Friend, which was unquestionably a hardship, namely, that of having to attend a court in Glasgow, say, when the hirer himself might live in the North of Scotland, but now that we have a court held in the district in which the man lives, I submit that it is no hardship to insist on the onus of proof being thrown on to that man to attend his own district court and explain why he has not obeyed the order of the court to return the goods. It may be said that the words "be proved" have much the same meaning as the words "appear to the court." It is easy to 875 put words into an Act and to have an intention in putting them in, but I am afraid that lawyers would grow very thin indeed if the intention of the Act of Parliament was so clear every time that there was no need to call upon their services to explain what the words meant, and if there is no difference between these two forms of words, I urge the Government to accept the Amendment. I have certain support, which I should perhaps produce at this point, which was given by the learned Solicitor-General for Scotland on 19th April, when he said:The onus must be quite definitely upon one party or the other. On whom is it to be placed? At present, according to the common law, it would undoubtedly be upon the hirer or purchaser … At the same time, it is useless to disguise that there may be occasional cases of hardship where the hirer or purchaser is a wilful man who knows where the article is but will not tell anyone and the trader has no means of discovering what he has done with it."— [OFPICIL REPORT (Standing Committee on Scottish Bills), 19th April, 1932; cols. 80–1.]In view of the fact that the ultimate decision as to whether or not a man is wilfully disobeying is placed in the hands of the court to decide, I submit that if the Amendment were accepted, it would be possible for an owner genuinely seeking to get back his goods to have the hirer himself attending the court to explain why he had not complied with the order. If he is wilfully withholding the goods, I think he should be compelled to attend his own district court and give his reasons for refusing to comply with the order.
§ The SOLICITOR-GENERAL for SCOTLAND
I must resist this Amendment. It is moved by the hon. Member for Central Edinburgh (Mr. Guy), who recognises that the form of words which he proposes would leave the onus exactly where it is left by the words in the Bill which he seeks to delete. The advantage of the words in the Bill is this, that they are clear and unambiguous and can leave no doubt in the mind of anyone who may be called upon to construe them. The disadvantage of the words of the Amendment is that they are ambiguous. The words "appear to the court" are not appropriate words for this case. If it was dealing with something within the cognisance of the court itself, it would be appropriate to insert such words. In a 876 Bill recently before this House dealing with children there were Clauses to the effect that where it appeared to the court that the person before it was a child the court should decide so and so, but this is a matter of proof upon evidence, and the only way in which anything can either appear to the court, or by which the court can be satisfied, or by which the matter can be proved to the court is by competent legal evidence. What we have done is to use that phrase which is the most clear and the most free from ambiguity. The Amendment was seconded in a speech which, if it meant anything, meant that the onus should be on the hirer, not on the trader, but perhaps the hon. and gallant Member for Coventry (Captain Strickland) will be satisfied by the fact that the law in Scotland in this respect will now conform to the law in England.
§ Amendment negatived.
§ Mr. JAMES DUNCAN
I beg to move, in page 4, line 40, to leave out paragraph (v).
I move this Amendment with some measure of confidence, having the support of hon. Members from Clydeside and having listened to the words of the learned Solicitor-General on an earlier Clause. As the Bill now stands, a man who has been wilfully defying the decree of a court can be sent to prison for six weeks, then have three months out, then another six weeks in prison, and so on indefinitely, and this recurring imprisonment seems to me, as a Scotsman who now represents an English constituency, but who tried to represent a Scottish constituency, to be a relic of barbarism, however modern it may be according to the hon. Member for Hamilton (Mr. D. Graham). Therefore, the suggestion that I make is that, by leaving this paragraph out, there will be one definite term of imprisonment, a maximum term of six weeks. Even with that maximum term which the sheriff may give, there will still be an option on the man who is imprisoned to get out at the earliest opportunity by delivering up the goods.
§ Lord SCONE
I beg to second the Amendment.
I confess that in doing so I have a certain amount of hesitation, because while I fully agree with my hon. Friend the Member for North Kensington (Mr. 877 J. Duncan) that this system of recommittal is rather a relic of barbarism, I am not sure whether the mere sentence of six weeks' imprisonment will be enough to deter that comparatively small proportion of the community which desires to take an unfair advantage of those who supply goods under the hire purchase system. I am of opinion that this is rather in the nature of an experiment, but it is an experiment that is worth making, and I am prepared to see this recommittal to prison brought back upon the Statute Book at a later stage if undue advantage is taken of the concession. I hope, however, that that will not come to pass. The vast majority of those who in the past have been committed to prison for the non-payment of what they owe under an agreement of hire purchase, have been honest people who have fallen into difficulties, and we are not legislating against them. It is better that we should run the risk of a few rascals escaping a large penalty than that a great many honest people who have not been guilty of any dishonest intent should have to go to gaol.
§ The SECRETARY of STATE for SCOTLAND (Major Sir Archibald Sinclair)
It is the intention of the Government to ask the House to accept the Amendment, but I want to make clear the circumstances in which this proposal was brought forward. In the first place, a man who might have received terms of recurrent imprisonment would have been a man who ex hypothesi was in deliberate and wilful possession of an article which did not belong to him; it had been proved to the satisfaction of the court that he possessed it and was deliberately refusing to give it up. In the second place, he would not have received recurrent terms of imprisonment merely because he was keeping the article in his possession; he would be receiving them for successive refusals to obey the order of the court, so that morally he would not have been entitled to very much sympathy. In the third place, the real object of this paragraph was to give the sheriff the feeling that he could impose a relatively short sentence. If a man came before him and it was proved that he was deliberately and wilfully keeping an article which did not belong to him, the sheriff might well say, "We will give him three days to show him that we have the power and 878 can use it"; and if he were still obstinate at the end of that time, he could give a sentence more appropriate to the offence and give him a longer time to think it over.
We feared that if there were no power in the sheriff to award this short sentence on the first occasion, a man might get a longer sentence than was actually necessary. On the other hand, it remains true that the man, so long as he is in prison, has his fate in his own hands; he can get out whenever he likes merely by authorising the delivery of the article. A subsequent Amendment which the Government also proposed to accept will make it obligatory upon the trading firm to notify the court as soon as the article has been restored. In these circumstances, we think that there are ample safeguards for a man, even if a sheriff, as the result of our acceptance of the Amendment, does in fact impose heavier sentences than he would have done if the paragraph, had remained in the Bill.
§ Mr. JAMIESON
While I recognise that there seems to be a general feeling in the House in favour of the Amendment, I feel that it is making such an innovation into the law of Scotland, an innovation which will have such far-reaching results, much beyond what has been contemplated, that I must enter my protest against it. Two points, have been very much overlooked. The first is that imprisonment following upon a decree of the court for the delivery of an article is not a criminal punishment. It is differently regarded in England, where attachment, as it is called, follows for contempt of court. It is not so regarded in Scotland. It has none of the stigma of criminal imprisonment, but it is the only possible method of enforcing a decree under which the court orders the defender to do something other than the payment of a sum of money. The second point that has been overlooked is that the Clause with which we are dealing is not confined to cases of hire purchase. It deals with decrees for delivery of any moveable article, however it may have come into the possession of the person in whose possession it is. The true owner of it may have lent it; he may have hired it under a contract altogether other than a contract of hire purchase; or, indeed, it may have been stolen from the true owner. By the law of Scotland the 879 owner of stolen property is entitled to follow it up and obtain possession of it. no matter in whose hands it may be— differing in that respect from the law of England.
If the Clause had dealt only with hire purchase, I would not have protested against the Amendment, because a person entering into a hire purchase contract does so with his eyes open knowing what the consequences may be. It is said that if the paragraph stands there will be hardship. I challenge anyone who is in favour of the Amendment to figure any possible case of hardship on any man who is acting honestly. Under the Bill as it stands the ignorant and unintelligent are carefully safeguarded. First of all, the summons for delivery of the article is served. If that is not understood or if it is disregarded, an application has to be made to the sheriff for a warrant to imprison, and that is served on the individual. If he still does not understand the meaning of that, then he may be put into prison for such period, not exceeding six weeks, as the sheriff may decide. That is not a sentence, but he is ordered to be kept in prison for any period the sheriff may decide, up to six weeks. Once he finds himself in prison it would be idle to say he does not know what he is there for, and, if the articles are in his possession he is able to deliver them and if he wants to do so, he them become his own gaoler and can unlock his own prison door. Not only that, but under Sub-section (6), if, after he is put into prison, he is able to show to the court that he is no longer wilfully refusing to deliver the goods, because they may have perished or because for some other reason he cannot deliver them, then he can be liberated.
It is difficult to see what more wet-nursing the defender could have than that, and it seems to me that it is absurd to say that after all these stages, even if he does not appreciate the position until he finds himself in prison, after he gets there, if he still refuses to deliver, he is acting in any way but dishonestly. Accordingly, the removal of this Subsection is simply going to put a premium on dishonesty. The Government have intimated through the right hon. Gentleman that they are prepared to accept the Amendment. They resisted it when it was 880 in Committee. May I read what was said by the Solicitor-General for Scotland, who put it more neatly than I can I He said:They serve the sentence in wilful recalcitrancy for retaining the article in their control and refusing to part with it. If they have been to prison, and they then wilfully refuse to give up the article which does not belong to them, can anyone say that they are entitled to any further consideration, either at the hands of the trader or at the hands of the Legislature? They have again to be brought before the court and it has to be proved against them, after due notice, that they are still wilfully and obstinately refusing to give up the article.Then he goes on:It has simply to do with those who are dishonest enough to retain the article. It is fair at this stage, after all the warning and proof which they have had, to say that they are not only wilfully but dishonestly withholding property which belongs to somebody else."—[OFFICIAL REPORT (Standing Committee on Scottish Bills), 19th April, 1932, col. 94.]So that against the honest offender the Sub-section in question would never be put into operation, and that was fully recognised by the Solicitor-General in the passage which I have read. What then, is going to be the position? Under the Bill the sheriff has a discretion but does not know when the man comes before him that he going to be dishonest. He sends him to prison, perhaps, for a period of three or, let us say, six days. At the end of that period the man is liberated and he is entitled to retain the article and the true owner can never get it back. Under Sub-section (4), before a warrant of imprisonment is granted the sheriff has a discretion, instead of ordering imprisonment, to order a money payment, but once the owner has taken the course of putting the man in prison—it may be for only three days—he can neither get back his property nor can he recover its value.
It does not matter how it came into the possessor's hands. He may have borrowed it or it may actually have been stolen from the true owner, but, as the Bill stands, if the sheriff only gives three or six days or other short period of imprisonment, at the end of that period the possessor of the article can go and flaunt it in the face of the true owner, who has no possible remedy unless he takes the remedy of force.
881 This Amendment stands in the name of Members on both sides of the House. It is just as likely that the owner who is being deprived of his property may not be a Noble Lord but one of the poorer class of the community whose cause hon. Members opposite champion with such frequency and vehemence and, as we think, with such mistaken notions. It may be that the owner is a member of that class who can much less well afford the loss of his article and of its value, and who will not bless the day when those hon. Gentlemen put their names to this Amendment. We have to look a little ahead. No doubt we are here dealing with articles under the value of £20, and the reason why this Clause is of general application is because it was thought to be an anomoly that there should be one rule as regards hire purchase contracts and another rule as regards other moveables. It seems to me that this Bill will necessarily only be the precursor of legislation dealing with hire purchase of greater amounts. If that is so, then the same question is going to arise again. If it is right as regards hire purchase that, for an article of small value, the period of imprisonment should be limited, it would be equally right as regards articles of greater value. If it is right that there should not be any difference between the enforcement of a decree in hire purchase for small articles and for other articles of small value, the same thing will apply as regards articles of greater value. The result of this Amendment is simply to put a premium on dishonesty, and I should be very sorry that this House, in a desire to remedy the difficulties which have arisen in hire purchase, should lend itself to something which is going to encourage dishonesty and make it impossible for the true owner of an article to get it back from the dishonest possessor.
§ Amendment agreed to.
§ Commander COCHRANE
I beg to move, in page 5, line 9,, at the end, to insert the words:and it shall be the duty of any person to whom delivery is made in accordance with the decree or with the provisions of Subsection (2) of this Section to intimate such delivery forthwith to the court.Sub-section (6), which I seek to amend, provides for the release of a man who has had the misfortune to get into prison 882 when the court is satisfied that delivery of the goods has been made. It does not, however, place any definite responsibility on either of the parties to give proof to the court that the goods have been delivered. I think it is clear that the only person who can provide that proof is the owner, and therefore I am moving this Amendment in order to put upon the owner the definite responsibility of at once notifying the court when the goods have been returned to him.
§ The SOLICITOR-GENERAL for SCOTLAND
I think this is an Amendment which ought to be accepted, for the reasons which have been so lucidly explained by the hon. and gallant Member for Dumbartonshire (Commander Cochrane). The point was discussed before the Scottish Standing Committee, and an undertaking was given then that further consideration would be given to it and, after reflection,, I am satisfied that the Amendment is one which will greatly improve the Bill.
§ Amendment agreed to.
§ Mr. N. MACLEAN
I beg to move, in page 5, line 16, to leave out the words "not be liable to aliment or," and to insert instead thereof the words "be liable."
The Clause which this Amendment seeks to alter makes an alteration in the general practice, if not the law, in Scotland. When an individual is put in prison because he has refused to deliver up an article which the courts have ruled he must give up, the hire purchase firm which has put him into prison is bound,, either by custom or by law, to pay the cost of his maintenance in prison. This Bill alters that practice, and the maintenance of the prisoner is to fall upon the State. The Amendment proposes that the present law or custom shall continue. We believe that if the present practice is maintained firms will hesitate seriously before proceeding to what one may call a piece of persecution in putting an individual in gaol for a period of six weeks for some small sum which has been left outstanding or for an article of minor value. If they are not liable to maintain the individual while he is in prison, very likely they will have him sent to prison no matter how small the value of the article may be.
§ Mr. D. GRAHAM
I beg to second the Amendment.
I feel that we ought to put the greatest possible difficulties in the way of any hire purchase firm, who are more or less rich members of the community, putting the poorest members of the community into prison, and, after all, it is the poorest people who are affected. With some knowledge of how this hire purchase system is carried on, I think the greatest criminals in many ways are those who go about urging men and women, and particularly women, to enter into hire purchase agreements. Very often the man does not know anything about it at all until after the transaction has been entered into and he is summoned to the court, and then various reasons which have already been stated may be the cause of his refusal to pay. Because a man is so poor that he can pay only 2s. or 3s. a week towards the cost of an article of less value than £20 it does not necessarily follow that he is dishonest, and it would be a considerable hardship on him, and not something of which we should be proud, to put him in prison merely because of his poverty. The power to send him to prison is still there, and it is no use talking about three days or six days, because he will be sent to prison for the full term, and while he is in prison the company from whom he has hired the article should be compelled to pay for his maintenance, as they are called upon to do to-day under Scottish law. I hope the learned Solicitor-General will not agree to what appears to have been an old-established custom in Scottish law being done away with.
§ Sir A. SINCLAIR
I am afraid it is impossible for me to advise the House to accept this Amendment, and I hope that my hon. Friend will not press it. It is really not the case that under this Bill a man can be put in prison merely for poverty. There are a series of obstacles which absolutely prevent such a thing. We have ensured that the man cannot be summoned to a court a long way from his home, but that the case shall be heard in a court close to his place of residence; we have prevented a number of oppressive stipulations which have appeared in these contracts being inserted in them in the future, and have said that if they are included the con- 884 tract shall be null and void. In fact, we have made it abundantly clear that the only circumstances in which a man can possibly be imprisoned under this Measure are where it has been proved to the satisfaction of the court that he is in possession of an article which does not belong to him and which he is wilfully refusing to deliver up on the order of the court, that is, acting in wilful defiance of the court. In those circumstances, is it right or fair that the man who sold or hired the article should be made liable for the holder of that article? This changes the whole character of the existing law, At present, the character of the imprisonment for which a man is subject now is at the definite instance of a private party to enforce his civil claim. The only form of imprisonment to which a man would be subject under this Bill would be imprisonment for wilful contempt of the court and defiance of the order of the court, and, in those circumstances, it is unfair to charge the trader with the maintenance of the prisoner.
§ Mr. N. MACLEAN
Is not that what happens to-day? Is it not the case that when a man is supposed to be guilty of defiance of a court's order he is sent to prison, and even in spite of that heinous offence, as the Secretary of State for Scotland endeavours to make it out to be, the individual or firm responsible for taking the matter to court in the first instance is compelled to pay for the maintenance of tine prisoner while he is in prison?
§ Sir A. SINCLAIR
Under the existing law, a person against whom a decree for delivery is pronounced, can be imprisoned by the pursuer on his own hand and without further order of the court. It is an old usage and custom, and I think it is fair that the pursuer should pay the "upkeep of the prisoner. In this Bill the hirer will have to appear before the court, and the whole of the circumstances will be thrashed out, and the court will deliver a definite decree, ordering the man to restore the article in dispute. In that case, I think it would not be fair to make the trader pay for the imprisonment.
§ Lord SCONE
I am very glad that the Secretary of State for Scotland has not seen fit to accept this Amendment, put forward by the Opposition, to whom 885 so many concessions have been made in the course of this Ball. The hon. Member for Hamilton (Mr. D. Graham) has once again given us the old story that we have heard ad nauseam from Socialist benches about the rich hire purchase firms. Apparently, while it is Very wrong to defraud a poor man, it is a much less grave offence to defraud a rich man. Furthermore the hon. Member went on to talk about a housewife who secretly concludes an agreement without the knowledge of her husband; whose fault is that? When this Bill was in Committee, I brought forward an Amendment to ensure that such contracts should be valid only if signed in the presence of the witness. I got a little support from my own side of the House, but not much. My Amendment was negatived, but for that Amendment I received not one iota of support from the official Labour party or from the Independent Labour party. I had considerable doubts about putting my name to the Amendment doing away with repeated imprisonment. If we make those responsible for bringing the action also responsible for the maintenance of the wrongdoer, it is going to be a great inducement to fraud. It has been pointed out by the Government spokesman several times that no man or woman can be committed to prison under this Bill except for wilful defiance of orders of the court. In those circumstances, I do not see how the Opposition can with any justification press their Amendment.
§ Mr. N. MACLEAN
When the Noble Lord has been a little longer in the House he will appreciate that it is only by a great deal of pressure that concessions can be got from any Government. I thank the Government for the recent concessions that we have obtained, but I have not the least hesitation in saying that I will try to get more concessions from them.
§ Mr. BUCHANAN
My party has been assailed. I do not want to be blamed for holding up the passage of this Bill, but I want to say that the Noble Lord Is slightly mistaken. The Solicitor-General for Scotland will bear me out when I say that I pressed very strongly about this Amendment. I do not believe: in making spectacular speeches, but I believe in doing things quietly behind the scenes. I inquired privately, and I found that the Government was adamant, upon 886 which I decided that I would not unduly harass the Committee and take up its time. It is because I wanted to make that slight correction that I have risen. With regard to the other remarks about the payments to the court, I always thought that it was about 9d. per day, because, after a great row with the predecessor to the Solicitor-General for Scotland, I managed to get it increased from 7d. to 9d. The best way to deal with this would be by administration and by not making the charge 9d., but about 15s. 9d. per day.
§ Amendment negatived.
§ Captain STRICKLAND
I beg to move, in page 5, line 22, to leave out from the word "made," to the end of the Clause, and to insert instead thereof the words:(a) to any person specified by the owner in a notice given to the hirer or purchaser and residing or carrying on business within a radius of two miles from the place where any person who acted on behalf of the owner in connection with the formation or conclusion of any contract under which the moveables came into the possession of the defender, resided or carried on business at the time he so acted; or(b) in the case where no such notice has been given, to any person who so acted as agent on behalf of the pursuer.I do not think I need say anything about this Amendment. It is an Amendment similar in its nature to that which has already been accepted by the House.
§ Amendment agreed to.
§ Motion made, and Question proposed, "That the Bill be now read the Third time."
§ Mr. J. JOHNSTON
May I offer one or two very brief observations from a standpoint slightly different from most of the speeches that we have heard in Committee and on Report? The Amendments which have been moved to this Bill since it was introduced, including those proposed and not accepted, appear to have been prompted by rather different motives. On the one hand, those by the hon. Member for Govan (Mr. N. Maclean) and other Members of the Opposition have been trying to amend the Bill to make it more favourable to the hirer, and especially to the hirer who defaults in payment. On the other hand, the hon. and gallant Member for Coventry 887 (Captain Strickland) has been not less zealous but more verbose in trying to protect the interests of the trader. I am glad to know that if this Bill becomes law it will not be possible to insert such definitely oppressive conditions in hire purchase contracts; on the other hand, I see no particular harm in it to the trader. I am far more concerned to consider whether the Bill as amended would tend to encourage and increase, or to discourage and restrict, this hire purchase system of trading which has been developed to such an alarming and dangerous extent in this country.
In times of normal financial stability hire purchase trading in certain types of articles may perform a legitimate and useful function, but there is a very great difference between the hiring out by a local authority of, let us say, a gas stove —which depreciates slowly, becomes more or less a fixture in the house to which it goes, and the hiring of which is an advantage to them independently of any profit they may make out of it, in as much as it enables the hirer to consume their gas —and a system of trading which enables irresponsible youths to get possession and use of bicycles on payment of half-a-crown. It is generally agreed that the excessive development of this system, if not actually a contributing cause, has been a great aggravation, of the economic distress in the United States, and yet we appear to contemplate with comparative equanimity its spread in our midst.
The system inevitably encourages and entices people to purchase articles which their economic position scarcely justifies them in affording. It is an extravagant form of purchase, because, apart from interest on the deferred payments, the trader inevitably has to charge more than he would for cash, owing to the additional risks that he runs; and it is a system of trading which is peculiarly unsuitable to a time of fluctuation in the money value of commodities, or, conversely, in the commodity value of money. A friend of mine who has had much, experience of cases arising out of these contracts in the Sheriff Courts in Glasgow told me that his experience convinced him that, as regards people living more or less from hand to mouth, this system of trading, with the temptations that it offers, is nothing more or less than an unmitigated evil.
888 10.0 p.m.
We have heard a great deal about bicycles in the course of these discussions, but I am sure that, if any hon. Member could tell us about the affairs of a company interested in the manufacture of moneyboxes, his evidence would be that hire purchase trading has destroyed their market altogether. The idea of saving up to buy things seems to be becoming demode in every section of society, and the caution which prevents indulgence in what one cannot pay for, and which at one time might correctly have been described as a typical Scottish virtue, is now, apparently, merely old-fashioned. I do not know whether these changes in outlook have brought the hire purchase system into being, or whether the hire purchase system has brought about these changes, but they are, I think, none the less to be deplored. I believe that there are some people, perfectly honest in all ordinary transactions, who quite genuinely regard anyone who sells them something on the hire purchase system as fair game to be "diddled" if possible, and that, I think, is a circumstance which should be kept in mind in considering the position of the hirer under this Bill as it has now been amended. I do not criticise that attitude, or blame people for adoping it. I should feel the same myself. It is an inevitable consequence of the whole system. I can imagine nothing more irksome than to have to go on making periodical payments for something of which, perhaps, one has had all the use one wants, something, at all events, of which the novelty has worn off, and which, once it has been in one's possession and the use of it has been obtained, proves to be less desirable and enjoyable than when it was coveted in a stop window—as is the case with almost everything in this world except, perhaps, beer and tobacco, which cannot be purchased under this system.
While I express no surprise at failure on the part of hirers to implement their contracts, I waste no sympathy and shed no tears over the lot of the trader, for he is very well able to look after himself. How will he do so if this Bill becomes law? Finding that he can no longer insert in his contracts certain conditions advantageous to himself, finding that his customers are enabled to cancel their contracts and return the goods on certain terms, and finding that his remedies 889 against the hirer who defaults in his payments are restricted, he will inevitably have to make his terms more onerous and severe in other ways. In other words, he will have, as we have been told over and over again by the hon. and gallant Member for Coventry, to increase his prices, or to make his initial instalments larger, or something of that sort, and hire purchase will become a more extravagant way of acquiring goods even than it is already. I think that the hon. Member for Govan and others, in their enthusiasm for those who for any reason cannot or do not continue their payments and complete their contracts, have rather forgotten the interests of those people, sometimes in equally poor circumstances, who take advantage of this method of trading and who do complete their contracts, for, assuredly, every modification of the law in favour of the defaulting hirer or purchaser will in the long run be paid for, not by the trader, but by the hirers who do pay and complete, their contracts, and to whom the trader will pass on the cost of any additional risk that he runs.
If these changes have the effect of increasing prices, they will tend to restrict the trade, and that in turn will tend to increase prices still further. I hope that those people in humble circumstances who are in the habit of acquiring goods on the hire purchase system will realise, if after this Bill is passed they find that the terms are more severe than they were before, that they have only to thank for that the people who enter into these contracts and fail to complete them, and the people who have so strongly urged modifications of the law in favour of such defaulters. For my part, I believe that the changes which this Bill will make by adding to the risks of the trader, and, therefore, forcing him to increase his prices, will tend to exercise a restraining influence upon this form of trading, and, holding the views that I do about it, I am able to overcome a natural objection to interference with the freedom of contract and to support the Third Reading of the Bill.
§ Mr. BUCHANAN
I think that this Measure represents a big improvement on the present position. The hon. Member for Clackmannan (Mr. Johnston) represents a view that used to be common in Scotland against what might 890 be termed in ordinary Scottish language "tick" of any kind. I was brought up in that atmosphere, but, whether one likes it or not, we are now facing new conditions and methods, and this form of trading has become part and parcel of the lives of many people in some of our big cities. To my mind, the Measure represents a big improvement on the present position, although it does not go all the way that we could wish. Since the time when I first raised this question in the House of Commons—and my first attempt was very unfortunate, for I was counted out—this form of trading has certainly become very much more prevalent. Speaking on behalf of those with whom we are concerned, we accept the Measure, knowing its limitations, but feeling that it makes an improvement.
I ought to add, in common fairness, that the Solicitor-General for Scotland has conducted it throughout in a very skilful, honest and straightforward fashion, and, this being the first Measure that he has piloted through the House, I think our thanks are due to him for his courtesy and his painstaking attitude in the private negotiations which have taken place. While as I have said, the Bill does not go as far as we could wish, and we still think there is the possibility of grave injustice to poor people, we accept it as an instalment, and thank the hon. and learned Gentleman for it.
§ Mr. N. MACLEAN
I should like to remind the right hon. Gentleman the Secretary of State for Scotland, and I would also remind the House, that this Bill is the result of a committee set up by the first Labour Government, which reported to the last Labour Government, after many attempts had been made by certain sections of Members to bring the matter before previous Governments.
§ Mr. MACLEAN
That may be. The hon. Member was a member of the Labour party at that time. I want to thank the Government for bringing this Bill forward. It does not give us all that we want, but there are many things in it that we shall like to have. I should like to tell the hon. Member for Stirling (Mr. Johnston) what our attitude on this Bill is. We are not legislating for those 891 who default on their contracts. I hope he understands that perfectly well. We are not putting forward any claims whatever for them. What we do know is this, that many cases have taken place in the past in which individuals have been innocently brought in, without their knowledge, mark you, as guarantors for relatives, and rather than disclose the fact that those who had acquired the goods on the hire purchase system had forged their names, they had stood the whole brunt of whatever was coming to them when the individuals who had got possession of the article defaulted.
It is because some of us know of cases of that kind which have arisen that we saw the necessity for endeavouring to get Governments in the past to bring forward such restrictions upon hire purchase agreements as would make it next to impossible for such things to happen in Scotland, or even in England. I want therefore to thank the Government for putting at least such a thing as that almost outside the realms of possibility, and we can now go on to see how this Bill, when it becomes an Act, works and operates in Scotland. We hope that it 892 will operate to the satisfaction of all of us who have taken part in getting it enacted. If there are any other items which need amending in the future, then we hope we shall receive just the same consideration and the same readiness of approach on the part of the present officials of the Scottish Office or, if they have been promoted to other spheres, from their successors, as we have had from those who at present are conducting the passage of this Bill; and we thank them for the courtesy which they have shown us.
§ The remaining Orders were read, and postponed.