§ Motion made, and Question proposed, "That the Clause stand part of the Bill."
§ Mr. H. WILLIAMS
I wish to raise a question of administration on this Clause. Sub-section (1, a) provides that quota payments shall not be payable to any officer of Customs and Excise. That seems a little strange, but the explanation may lie in some international agreement. From the first part of this Sub-section it appears that payment has to be made to one officer of the State or of the Commission and that another officer of the State has to examine the receipt. There would appear to be a little unnecessary administration, and the possibility of some loss of money in that arrangement. Probably there is an adequate explanation but I think it ought to be stated.
§ Sir S. CRIPPS
On this Clause I raise another question similar to that just mentioned by the hon. Member for South Croydon (Mr. H. Williams). As I understand Sub-section (1) no entry of any flour for home consumption or use shall be signed by any officer, except upon the surrender to him of a receipt in the prescribed form. Now the quota does not become payable under Clause 3 (2) in respect of imported wheat, until it has been entered, and the receipt, of course, should not he given until payment has been made. There, it seems to me, you have an impasse because the man cannot 518 enter it, until he has given the receipt but the payment is not due until the entry has been made. Thus you have to get the receipt before you make the payment but as the receipt is expressed in Sub-section (1, a) of this Clause to be conclusive evidence that the payment has been made, clearly, the receipt cannot be issued before payment has been made. No doubt there is an adequate explanation but I do not see how this arrangement is going to operate. There is a further question. Under Clause 3 (7) there is a, provision by which when an Order is changed, varying the amount of the quota, the new sum prescribed by the new Order becomes payable "when the payment accrues due." I do not quite understand under Sub-section (1) of this Clause at what moment "payment accrues due" unless it is upon entry. If the money is to be paid before the receipt is obtained, and the receipt handed over in order to effect entry, is the money due and payable at the date when the money is paid for the receipt, or at the date when the goods are actually entered? It may be that there will be different standards of quota payable on those two days. I should like some explanation of these points.
§ Earl WINTERTON
I must confess that from a purely House of Commons point of view I am always concerned when a machinery Clause of an intricate character, like this, goes through without discussion. We constantly hear in the courts criticisms of the manner in which the House of Commons does its work, and, undoubtedly, during the last 25 years, as any lawyer will tell the Committee, there has been a great increase in the number of cases in which it has been found almost impossible to interpret some Act of Parliament. I make no criticisms of my right hon. Friend the Minister, but I suggest that either he, or preferably a Law Officer, if one is available, should explain these intricate machinery Clauses when, as happens in this case, no Amendments are put down to them. On the Question, "That the Clause stand part of the Bill," an explanation of such a Clause should be offered to the Committee. The points which have been raised, at any rate, call for an answer, and I have no doubt that the Minister will be able to give an answer, but I suppose the Clause would have gone through without discussion if they had not been raised.
519 In Sub-section (2) of the Clause, which deals with the fine to be imposed in the case of any exporter or shipper of flour for exportation as stores who fails to make a declaration, it says that if the entry is false in any particular he shall be liable to a penalty of £100. Am I not right in saying that it is usual in Acts of Parliament to put in the words "not exceeding"? By putting in the words "a penalty of £100"—and I would direct the attention of the hon. and learned Member for East Bristol (Sir S. Cripps) to this point—does it not look like an invitation to the court to impose that penalty? It would be a monstrous state of affairs if, for instance, in the case of a small steamer going from a United Kingdom port to France, and having on board, as ship's stores, some biscuits, for example, not exceeding in value £10 or £15, a fine of £100 were imposed. Would it not be better to put in "not exceeding £100," if you want to have such a fine, which is, I suppose, desirable in the case of any serious failure to make an entry?
I hope my right hon. Friend will take the opportunity, in replying—[Interruption.] Will my right hon. Friend the First Commissioner of Works kindly speak a little less loudly? It is difficult, I know, because these matters have to be ascertained, shall I say, in the proper quarters, but may I make a suggestion to the Minister, that he should take the opportunity, when replying to this point, to give us a short exposition as to the general effect of this very important and intricate machinery Clause?
§ Mr. T. WILLIAMS
Why should an exporter of flour be fined at all? The only transaction that the exporter can perform is to export flour which previously has made a quota payment, and the maximum which he could receive would be the return of the original payment that had been made. Why should we render the exporter liable to any sort of fine at all?
Lieut.-Colonel SANDEMAN ALLEN
I want to supplement one thing that my Noble Friend the right hon. Member for Horsham (Earl Winterton) said. If we do not insert the words "wilfully false" or "false in some material particular," any entry that is only incidentally and unintentionally false would be liable to the penalty.
§ Mr. ORMSBY-GORE
I think there is something in what my Noble Friend the right hon. Member for Horsham (Earl Winterton) said, that these machinery Clauses ought to be carefully watched. This particular machinery Clause is not so much the work of the Ministry of Agriculture, but is a Clause put in by the Customs and Excise Department, who are familiar with the working of these matters, in order to make sure that this Bill, framed by the Ministry of Agriculture, is on all fours with the law and practice of the Customs and Excise Department, with this improvement, that whereas, to take the point raised by the Noble Lord and by the hon. and gallant Member for West Birkenhead (Lieut.-Colonel Sandeman Allen), very often there is mere legislation by reference, saying that the Customs Act of such and such a year shall apply, at any rate in printing this Bill, the particular Section of the Customs Consolidation Act is set out.
§ Mr. ORMSBY-GORE
It is the interpretation under that Customs Consolidation Act, and in order to make sure that this is on all fours with the practice under that Act. I understand that these words are, as regards the penalty of £100, quite definitely qualified by the practice of all Customs and Excise law, whereby, I am advised, the maximum penalty, and in fact all penalty, is frequently limited. I am satisfied, as to the point raised by my hon. and gallant Friend the Member for West Birkenhead, that if it is not obviously wilful and culpable, there will not be a conviction. In fact, we all know that the £100 operates as a maximum.
§ Earl WINTERTON
Do I understand my right hon. Friend to say that it is the general practice in these Customs and Excise Acts to use the phrase "a penalty of £100," and not, as is usual in other Acts of Parliament, "a penalty not exceeding £100"?
§ Mr. ORMSBY-GORE
I am assured of that by the representative of the Department. However, we will make quite 521 certain that that is so, the point having been brought up. As to the point raised by the hon. Member for South Croydon (Mr. H. Williams), the object of proviso (a) of Sub-section (1) is two-fold. It is, first, to make sure that payments which are continually being made in a Customs office, and which are destined for the Customs fund, and those which are destined for the wheat fund shall not get mixed up, and, secondly, to make it quite clear that the Customs authorities will not allow flour to enter unless the certificate is produced for their inspection. That is the right way to work this machinery, that the actual certificate should be produced for inspection and that then clearance should be given. As to the point raised by the hon. and learned Member for East Bristol (Sir S. Cripps), that, I am advised, is covered by the proviso in Sub-section (2) of Clause 4, on page 9, from lines 29 to 34 inclusive. I do not profess to be a brilliant draftsman myself, but it seems to me that that proviso covers the kind of points raised by the hon. and learned Member.
§ Mr. ORMSBY-GORE
I will look into it, but as I understood the point raised by the hon. and learned Member—I admit that it is complicated—it could be and is covered in the drafting of the Bill by the proviso that I have just mentioned, in Clause 4. He asked also as to when the payment for imported flour would be due. It is due upon entry. It may involve adjustments, and records, obviously, will have to be kept of the payments, and where an importer can show that he has paid too much, or if he has paid too little, the accounts can be adjusted. In the general trade of flour importing, as I understand, it is not as if this will be an isolated transaction. In very rare cases it might be an isolated transaction, but generally speaking it wilt be one of a continuous series of transactions, and a running account of them will he kept.
If hon. Members still have any anxiety on any points in connection with machinery Clauses of this kind, if they will draw attention to them, the Government are most anxious to make sure that there are no new departures and that 522 this is in line with the ordinary law governing this kind of thing. It is our object to make no new changes or to introduce no new departures which affect what inevitably has grown up as the practice of the Customs and Excise Department in regard to a law that is either consolidated in the minds of the judges who administer the law or that is actually consolidated in a consolidating Statute. It is to bring the machinery of this Bill into line with the general law and to avoid any new departures that this kind of machinery Clause is introduced.
§ Mr. T. WILLIAMS
We fully sympathise with the right hon. Gentleman in his very genuine attempt to explain this complicated Clause away. We are not able to congratulate the right hon. Gentleman on the clarity of the matter after his explanation, but that in no way affects the effort.
§ Mr. WILLIAMS
That is exactly why I should like the right hon. Gentleman to tell us why the exporter or shipper of any flour intended for exportation as stores shall duly enter the flour before export or shipment. The object of entering the flour is to secure repayment of a quota payment which has been previously paid, and if the exporter fails to enter the record, he does not receive that quota payment originally made, and not only so, but he is liable to a fine of £100. Will the right hon. Gentleman tell us why it is that some munificent shipowner who wants to ship flour and is called upon to make an entry in order to receive a return of a sum of money, but who might gratuitously say, "I do not want to receive this money back," should then be rendered liable to a penalty of £100? Perhaps the right hon. Gentleman will instruct a non-lawyer exactly why that should be.
§ Mr. CROOM-JOHNSON
I understand that the point raised by my Noble Friend the right hon. Member for Horsham (Earl Winterton) is to be reconsidered, and I intervene to point out that indeed it appears to need it. I have taken the trouble to get the Section of the Act of 1876 in order to compare what it is that we are substituting in 523 this Clause for the old Section in the Customs Consolidation Act. The language has been varied, and anybody who has had any experience of the courts will know that if you find a variation in language, the court is assumed to suppose that Parliament meant to vary the meaning of the words it uses, and has a different intention in the one case from the other. In the Act of 1876, in Section 139, the language used is:the person who fails or neglects to make the entry or if the same be false in any particular shall forfeit the sum of one hundred pounds and such cask or package and the contents thereof shall also be forfeited.7.0 p.m.
It may well be that, under that language, there may be left some discretion in the Customs authorities to say, "We will not in this case forfeit all the £100 or all the cask or package." But, when we come to this Bill, which, after all, is dealing with an entirely new subject matter, and therefore it is to be supposed that the legislature is applying its mind to new things, and when we look at Sub-section (2) to see what is to be substituted for Section 139, we find that the language is entirely different. It is not that he shall forfeit a sum of money, but that if the entry be false he shall be liable to a penalty of£100. Before proceeding, I would like the Committee to look at Section 14, which provides certain other penalties, and in each instance in that Section he will find the language most carefully framed. In each instance where a pecuniary penalty is provided, as for instance on page 20, line 9, are the words:liable.…to a fine not exceeding one hundred pounds or to imprisonment.….That is in each instance in the Clause. As an essay in construction, if this Clause came to be construed, it appears to me highly probable that, where you find in one Act of Parliament dealing with a new subject matter and a new state of affairs the words "not exceeding" put in in one Section and left out in. another, it would be held that it was not done by accident, but was done by design. Therefore, the point made by the right hon. Member for Horsham is a good point. It does appear that this would prevent any tribunal or any court or any Customs officer that is going to deal with this matter from saying, "On this occasion 524 the matter is so trivial that you will only pay 5s." It does appear, therefore, that this point needs further consideration. As to the other point which was made by the hon. Member opposite, I myself have the same difficulty in appreciating it as 'he has. He looks at it from the mind of a layman, and I look at it from the mind, of a lawyer. After all, it is the layman who is often going to be concerned in these matters, and not the lawyer at all. It seems to me there is the utmost difficulty in making the two parts of the Bill fit together, and I suggest that the Clause does need re-examination, overhauling and re-drafting.
§ Earl WINTERTON
I do not want to dispute what the First Commissioner for Works has said. I would be the last to, make an attack on him, in view of the courtesy he has always shown to the Committee and in view of his desire to meet points which are raised, for which we are very grateful. I am sure, however, that he will allow a few comments because, after all, disunity in the Ministerial family is as fashionable as being a platinum blonde. He will not mind comments on the attitude of the Government on what is, after all, a very important machinery Clause. He used the phrase that he was instructed on the matter. Had it been the Financial Secretary, whose business it is not to be instructed but to know, it would have been possible to obtain a more definite answer, but that is a small and pernickety point. I will deal with a point of rather more substance. My right hon. Friend said that he would make sure before the Report stage if there was any departure from the existing law. My hon. and learned Friend beside me thinks that there is a change in principle. Ministers who come down with Bills like this should come down with knowledge of these points. These things did not happen when Leaders of the House were present during every important Debate. Now that we have two Leaders of the House, they are not present as often as when we had one. I have no doubt the Leader of the Opposition should also be present.
§ Sir FREDERICK THOMSON (Treasurer of the Household)
The right hon. Member for Bewdley (Mr. Baldwin) has just left the House.
§ Earl WINTERTON
There is no reason why he should not remain. I am not making an attack upon him. I understand that the Lord President has a very proper reason for being absent. I am speaking generally. I am only saying that in the old days these important Committee points were dealt with more carefully than at present. I am content to leave the matter to the Report stage, but in the case of these more important machinery Clauses which really affect the whole working of the Bill—and I suggest to my hon. Friend behind me, who is really the father of the Bill, that, unless the machinery of the Bill is such that the public can understand it, we shall not get the advantage from the Bill that we desire—I suggest that from now onwards the Ministers should make sure beforehand that a thing is so, and come down here able to answer the questions put to them.
§ Sir S. CRIPPS
I am sure the right hon. Gentleman was not castigating at all. I must say a word about the Lord President of the Council that, although I attack him as a member of the Opposition, it is fair to say that he has put in quite as much time as the right hon. Gentleman who has just spoken.
§ Earl WINTERTON
There is this difference between the Lord President of the Council and myself in this regard, and there are many other differences, namely, that he receives a salary for being here and I receive a salary which, owing to the provisions of the law, does not compel me to be here.
§ Sir S. CRIPPS
I appreciate that the right hon. Gentleman is not in whole-time employment. May I ask the First Commissioner of Works one further question? There is a point which seems to me a matter of great importance on this Clause. As I understand it, under the proviso on page 9 to which he refers, it is possible to issue receipts for quota payments in advance, and those receipts can be issued not against any goods at all but simply on demand. Those receipts will then become negotiable 526 instruments, and can be gambled with. Those receipts will represent nothing except the payment of a certain sum of money to a certain person, and they can be passed from one person to another. Where you are going to have a changing quota, as contemplated in this Bill, and not a fixed quota, people may well buy a great quantity of these receipts in advance, or store them up, or purchase them from other people who have them. It is a very dangerous feature to introduce. Again, on page 11, line 10, it says that these receipts shallbe conclusive evidence that those payments have been made.If the receipts are issued in advance of payments, once the receipt is in the hands of the person who is going to pay he has got conclusive evidence that he has paid. If anyone demands the money from him, he shows them the Act and says that the receipt is conclusive evidence of payment. The right hon. Gentleman must make this a little more reasonable, or there will be a first-class means of evading payments under this Bill.
§ Mr. ATKINSON
There are three points I want to make. First, with regard to the point which the right hon. Gentleman has mentioned, it is not as he suggested. The words are, "for the purpose of such enactments," that is, for the purpose of enactments relating to Customs and Excise. These receipts are to be conclusive evidence that the 'payments have been made. The scheme contemplated by the section is as follows, and really Sub-section (1) is easy to follow if one appreciates the difference between entry and signature of the entry. It is following a, procedure with which we are familiar. The first thing that is done when goods are imported is that they are entered in a book with the name of the consignee. The next thing is that the consignee has to pay his duty. In this case he has to give evidence that he has made the payments that this Act requires. He produces a receipt and, for the purpose of the Customs official, that receipt is to be conclusive. When he has produced that receipt, then, and not till then, does the Customs officer sign the entry. When the entry is signed, and not till then, can the consignee remove his goods. 527 The procedure is perfectly simple and the receipt, which it is true can be given in advance under the scheme, is not conclusive evidence between the holder of the receipt and anybody else, but only conclusive evidence for the purpose of securing the signature of the entry in the book.
It is not merely the production of the receipt. The point is a stronger point than the one the hon. and learned Gentleman is making. It is the production and surrender of the receipt.
§ Mr. ATKINSON
I agree that it strengthens the point. He gets the entry signed and removes his goods, leaving the receipt with the Customs officer. There is one point which the First Commissioner of Works made which one cannot let pass unchallenged. It was suggested that the words:if he fails or neglects to make such entry or if the entry be false ….might imply that an offence had been committed even though the person had not been wilful about it, and the First Commissioner said it would not be an offence unless it was done wilfully. If that is the intention, the words ought to be altered. It is true that for offences at Common Law a guilty mind is part of the offence; but statutory offences, of which so many have been created in recent years, do not depend on the guilty mind at all, and many innocent people have been convicted under those statutes for not carrying out some duty which the Acts imposed upon them. One can think of many illustrations. A man may be wholly ignorant of the law, yet ignorance of the law is no excuse. Very often these offences are committed by servants or agents of the person who is prosecuted, but it is no answer to say, "I know nothing about it; I gave orders to my servant, and he failed to carry them out."
Under this Clause the offence will he complete, however innocent the offender may be in his mind. He may have failed to do something either in ignorance, or because his agent failed to do what he told him to do, and he may have had every intention of performing this duty, and yet, through somebody else's fault, 528 there has been a failure, and therefore he becomes liable to a penalty of £100. If these words stood alone in the Bill, it would be very arguable that the greater includes the less, and that there would be discretion in the magistrates to impose a lesser fine, but there is great force in the argument that in the other Clause in the Bill where penalties are imposed, we always have the words "not exceeding." It is suggested, therefore, that where you have different language in the Bill a different intention exists. At any rate, if the desire is that there should be no distinction, it would he a simple thing to make it clear.
§ Mr. H. WILLIAMS
May I thank the First Commissioner of Works for the way that he has realised the complications of this Clause, and to assure him that none of us wish to hamper the progress of the Bill. I would point out that the Clause in the Customs Consolidation Act, 1876, only imposes this penalty where people are exporting explosives, and it seems a little strange to make here the same penalty which the Act of 1876 thought. fit to impose for explosives.
§ Sir J. GILMOUR
I have listened carefully to what has been said in the Debate. These Clauses were drafted in consultation with the Customs. They are, as I understand it, in line with the general procedure, but in view of the discussion I agree that they require to be carefully looked into, and I will undertake to have that done in conjunction with the Law Officers of the Crown.
§ Mr. ATTLEE
It is a little unfortunate that we have had no Law Officers of the Crown here. We have four Law Officers, and we ought certainly to have had some legal advice. We have had admirable legal opinion from the back benches, but on a first-class Measure like this there should be some attendance on the part of the Law Officers.
§ Earl WINTERTON
In order to enable my right hon. Friend to deal with this question on the Report stage, I propose to move to delete the Clause, and I am sure that we will be in a position then to answer the points that have been raised.