§ The following Amendments stood upon the Order Paper:
§ In page 7, line 21, to leave out Subsection (v).1078
In line 23, at the end, to insert:
Provided that in the case of Orders made under section one of this Act, such punishment shall take the form of a money payment which shall not exceed twenty per cent. of the sum involved, and shall be recoverable as a debt due to His Majesty."—[Mr. Dingle Foot.]
§ 9.32 p.m.
§ Mr. DINGLE FOOT
On a point of Order. Would it be convenient to deal with these two Amendments together?
§ The DEPUTY-CHAIRMAN
I think that if they both cover the same ground, it would be to the general convenience of the Committee.
§ Mr. FOOT
I beg to move, in page 7, line 21, to leave out Sub-section (v).
This is not a point which affects the main purpose of the Bill, but I venture to think that the provision in Subsection (v) of the Schedule is rather an unusual one. It gives the Department in question the power of punishment when there is failure to comply with an Order. We are here asked to give to a Minister of a Government Department unlimited discretion to impose punishment and penalties. There is no limit to the extent of the punishment that may be imposed or the kind of punishment under this part of the Schedule. I would like to remind the Committee of one of the main recommendations of the Donoughmore Committee, that precise limits of the law giving power which Parliament intends to confer on Ministers "hall always be defined in clear language by the Statute which confers it, and that when discretion is conferred its limit shall be defined with equal clearness.
That is a recommendation to which some of us attach a good deal of importance and it is one with which I think nearly all sections of the Committee would agree. In that recommendation the Committee refer to the law-making power. Here we are not only conferring the power to make laws of the kind to which they refer but, it may be that we are conferring the power to make criminal law. There is nothing here to show that the punishment to be imposed may not include imprisonment as well as a monetary fine.
I am not going to say that this is without a precedent in our legislation. The time available for the study of the Bill has been short, and I have not been able 1079 to go through the Statute Book in search of precedents. But although it may not be entirely without precedent it is, at any rate, highly unusual and highly undesirable. The provisions which we have made from time to time for enforcing Ministerial Orders and regulations seem to fall into two categories. The first category is that of Statutes which give a Minister or a Department power to make Orders or regulations, and which also fix the penalty for a breach of those regulations. Such a Statute, for example, provides that for a breach of the regulations a court of summary jurisdiction may impose a fine not exceeding a certain amount or makes some provision of that kind. I give two examples taken almost at random from recent legislation, namely, Section 15 of the Import Duties Act and Section 35 of the Road and Bail Traffic Act of last year, both of which provide penalties for breach of the regulations in that way. The second category is that of Statutes which give power to a Minister to make regulations and to fix penalties but limits the penalty which the Minister has discretion to impose. An example of that kind of Statute is Section 10 of the Metropolitan Public Carriage Act under which the Secretary of State may make an Order and may annex a penalty to that Order not exceeding 40s.
Those are the two principal ways in which we enforce orders and regulations which Ministers are empowered by Statute to make. This provision does not come within either of those categories. The Government are here asking for arbitrary and unlimited power. We do not know the extent of the penalty which they contemplate or the kind of punishment they contemplate. It may be said that any order which is made must be subject to the approval of Parliament within 28 days, but we cannot amend these Orders. We can only confirm them or reject them outright, and it is unlikely that the House of Commons would be ready to reject a whole Order simply because they thought the punishment imposed under the Order did not fit the crime. Some of us think this an important issue. We think that this is just another aspect of the new despotism. If it is not possible for the right hon. Gentleman to accept the actual Amendment I hope it will be possible for him 1080 to find some form of words which will limit the discretion of the Minister and the Department and the extent of the penalty which they are empowered to impose.
§ 9.39 p.m.
§ The SOLICITOR - GENERAL
The effect of these words in the Schedule is not to confer on the Executive any sinister or arbitrary new power. A breach of a Statute or Statutory Order is a common law misdemeanour, without any express words in the Statute or the Order and, as a common law misdemeanour, it is punishable, only on indictment and by imprisonment or fine, both unlimited in amount. Thus, if the Order did not deal with what punishment or penalties could properly be imposed, an offence would still be punishable on indictment at common law by imprisonment or fine to au unlimited extent. One effect of putting these special words in here is that summary proceedings can be taken. Another effect is that Parliament will see the limit which it is proposed to put on the punishment, which, but for this provision in the Schedule, would be unlimited. There is no intention to inflict excessive penalties. The second Amendment in the name of the hon. Member would make it impossible for imprisonment to be a penalty in any case. It proposes to insert:Provided that in the case of orders made under Section one of this Act, such punishment shall take the form of a money payment which shall not exceed twenty per cent. of the sum involved, and shall be recoverable as a debt due to His Majesty.I think the Committee will agree that that would be inadequate in the case of a person deliberately giving false information to the Clearing Office with a view to benefiting himself, at the expense of other members of the community who are loyally carrying out the duties which Parliament has imposed upon them, under the Act and the Order. As I say, we have no intention of imposing heavy penalties. I do not wish to tie myself down to figures but in order to show hon. Members the kind of thing which we have in mind I suggest the possibility of a fine of something in the nature of £ 100 in the case of failure to disclose or, to take the proper steps provided for by the Order, with the possibility of a sentence of three months' imprisonment in serious offences. The hon. Member is right in saying that in certain Statutes definite limits have been 1081 laid down to penalties. In this case that has not been done for the reason that this matter, as is accepted, I think, on all sides of the Committee, is one of considerable urgency. In view of that fact and as the Order has to be laid before Parliament and with the assurance that we do not desire to impose excessive penalties, I hope my hon. Friend will see his way to withdraw these Amendments.
§ Sir H. SAMUEL
Does this provision follow precedent or is this the first time that Parliament has been asked to legislate in this form?
§ The SOLICITOR-GENERAL
I am afraid I cannot say at the moment, It is usual for a reference to penalties to be introduced into these Bills, otherwise as I have pointed out, the unlimited penalties at common law would be applicable.
§ The SOLICITOR-GENERAL
At the moment I cannot say whether there is any precedent for an express reference to punishment. The punishment might be defined in the Order.
§ 9.44 p.m.
§ Sir S. CRIPPS
I think this is a rather important departure. Not only can this Order define the amount of the penalty, but it can also define the crime.failure to comply with the section under which it is mademight be made, by definition, to mean something which would be more easily infringed than the provision without any definition. The precise provision, the infringement of which is to bring the person who infringes it within the reach of punishment, might make a great deal of difference in the onus of proof and the likelihood of conviction. It surely has been the practice in penal Statutes of all kinds to lay down quite clearly, firstly what the offence is, and secondly what is the maximum penalty that may be inflicted for that offence. I am not certain to what particular matters this Subsection refers, because I think I am right—the hon. and learned Gentleman will correct me if I am wrong—that the Customs Consolidation Act and the Acts amending and extending it which are applied with reference to Clause 2 and also the import of goods under Clause 1 1082 have themselves already got in them full penalty Clauses.
Therefore, anything which arises under those, dealing either with the import of goods or with failure to pay, or payment of a certain portion of the money to the Clearing Office upon the imported goods, will be dealt with automatically under the Customs Consolidation Act and the amending Acts, by reason of the provisions which are already in the Bill. Therefore, the matters which, fall to be decided under this Sub-section (v) will apparently be outside the purview of the Customs Consolidation Acts and the penalties imposed thereunder. They would, I presume, therefore, only relate to such matters as giving false information to the Clearing Office or attempting in some way or another to evade some of the obligations under Clause 1, but with regard to Clause 2, it does not seem that there is really anything to which it could apply at all, unless to a failure to get a licence or something of that sort, and that would then fall to be dealt with under the penalties under the Customs Consolidation Act for importation without licence. If this is only designed to deal with the question of making false returns or false statements to the Clearing Office, surely it would be possible to insert provisions which laid down a maximum penalty for that crime or omission, as the case might be. It seems undesirable to lay down in this Schedule a provision by which the Department can providefor the punishment of any failure to comply with the Order.Those are not very accurate legal terms, and a failure to comply with an Order might be something which, in the ordinary common law, would not be punishable as a crime. It might be that the form of the Order would make something into a crime which before was not a crime. To give an unlimited power to impose penalties, without this House laying down any maximum within which those powers must be imposed, seems to be a dangerous thing for this House to do. After all, we are still the guardians of the liberties of the people, and although it may be that we trust the right hon. Gentleman completely, as I am sure most of us do, still it does seem to be too great an abrogation of the powers of this House to hand over 1083 the definition of a crime and the assessment of the amount of punishment, entirely out of our control, to a Government Department.
Although these Orders will come before the House of Commons, under our present procedure it is quite impossible for anybody to have any effective control over them. They come before the House, and then they have to be passed. I have suggested more than once that sooner or later these Orders will have to be dealt with in a Committee, where they can be controlled by the House in some degree, and not brought before this House, where they cannot be controlled at all, because they always have to be passed. The Government produce them and have to pass them, and no Amendments can be made to them. Therefore, I suggest to the right hon. Gentleman that it would be far more satisfactory if this Sub-section were withdrawn, and in another place some more satisfactory definition inserted, more in accordance with what I believe to be the practice of the House.
§ 9.50 p.m.
§ Sir P. HARRIS
My hon. Friend the Member for Dundee (Mr. D. Foot) has made a very strong case against this exceptional departure from principle, and I think the Solicitor-General realised the importance of the point and that we were making a rather dangerous precedent. He said an Order would have to be laid on the Table, but he forgets that the Order would be in operation before being laid on the Table. Any particular Order has only to be brought before the House 28 Parliamentary days after it has come into operation. The right hon. Gentleman the Chancellor of the Exchequer was very contemptuous when I asked that, instead of the Orders having to come before the House after they were in operation, they should come before the House before they came into operation. Surely, if the Government claim under this emergency the right to define the kind of punishment, it justifies me more than when I pleaded that we should not give the Government this free hand to legislate by Order under the general powers given by a Measure of this kind. I think my hon. Friend made out his case, and that these words should be withdrawn, but if they cannot be 1084 withdrawn, I hope my hon. Friend will press the Amendment to a Division.
§ 9.52 p.m.
§ The SOLICITOR-GENERAL
My main point in answer to the Amendment to leave out this Sub-section was that if you do not have in some such words as are in this Sub-section, the penalty for breach of an Order is unlimited in amount of money and in period of imprisonment, and, therefore it is wrong to suggest that by providing that in an Order, where maxima could be imposed, you were therefore punishing people with a punishment which otherwise could not be imposed upon them. With regard to the question put by the right hon. Member for Darwen (Sir H. Samuel), I am informed that there is no precedent for this particular provision, but, as the Committee will appreciate, this is a rather unusual area. It is not like the question of motoring regulations, where one is familiar with the kind of offence that may be committed. This is an area in which offences of a far more serious character than might be envisaged at the outset might be perpetrated or might arise. Therefore, if we did put maxima in the Schedule, they would have, out of caution, to be very high indeed, and certainly far beyond anything that it is our intention to put in the first Order; and I hope the Committee will appreciate that point, that it is not a case where the ground is already more or less surveyed, where you realise the kind of offence and the possibilities with which it is involved, and you can therefore insert a maximum penalty. It is the kind of case where offences of a more serious character than were envisaged at the outset might come to light. When Parliament puts in a maximum, it does so for the most serious kind of offence that it can contemplate. It is our intention to start the first Order with small penalties, something in the nature of a fine of £100, or three months imprisonment.
§ 9.55 p.m.
§ Mr. ATTLEE
The hon. and learned Member has rather disturbed me, because he says that the ground has not been surveyed. That is the trouble. This is an enormous hinterland, quite unsurveyed. We do not know what these offences may be or what the degree of 1085 culpability may be, if any. There may be a breach of an Order, which may be slight or great. We do not know what the penalty may be. It may be simply some matter of not complying with an Order, without any guilt about it at all. The Committee ought to be very careful about allowing a new offence, with entirely unregulated punishments, to be set up in a Bill like this, which has had very scanty time for consideration in the House. It is brought in as a matter of emergency and it proposes to give very wide powers to the Executive to formulate offences and to prescribe punishment of some kind which will come before us at night, on some Order. I certainly think that the Solicitor-General far from having calmed the mind of anyone will have disturbed the minds of hon. Members further.
§ 9.56 p.m.
§ Sir H. SAMUEL
The Committee is now faced with a really important question of principle. This is not some minor, unimportant issue which has emerged from the discussion, but one that touches very closely the whole principle of Parliamentary legislation and the relation of the House of Commons to the Executive. Let me remind the Committee precisely what is the proposal in the Bill now under discussion. The Bill gives power to Government Departments to make orders for imposing certain obligations on private citizens, but in the Schedule there appears the most extraordinary provision that an Order made under this Act may provide:for the puishment of any failure to comply with the order, or with the section under which it is made.Simply that. A blank sheet given to the Executive to write in whatever they like of any penalty for any infraction of any of these Orders. It is said that all such Orders, including this provision, must be laid before Parliament, and that an Order in each House must be made to give it validity, but I would point out two important facts. First, these Orders must be accepted as a whole. They must be either endorsed or rejected. There is no question of examining them Clause by Clause. No Member of the House can get up and say "These penalties of imprisonment are too heavy. We think that that matter should be dealt with by a fine." The House can only vote "Aye," or "No." Only if there was a strong 1086 expression of public opinion and great agitation over a matter of this sort, might any alteration be made. Only if the House thought the matter was so grave that it ought to risk the rejection of the Order as a whole, might there be any amendment of any provision in it.
Secondly, these Orders are to come into force and to have validity before Parliament has considered them. From the very moment that they are made they have effect, and if Parliament is not sitting two or three months may elapse before the matter comes before either House of Parliament. In the meantime these penalties will be applicable and, if the occasion arises, may be enforced. The Solicitor-General, in answer to my question, has told the Committee that this is the first time that Parliament has ever been asked to legislate in these terms. He says that if this were not done all sorts of terrible penalties would fall upon the subject, that the individual would be exposed to unlimited imprisonment and unlimited fine. But there have been plenty of Acts of Parliament creating misdemeanours of all sorts and imposing penalties, but never before has it been found necessary to insert a provision of this character. I have been a Member of this House off and on for 20 years but I have never before seen any provision approaching this. Always there has been limitation to one of two courses. It might have been proposed that the penalties in certain Acts of Parliament should apply. The Government might have said that the penalties in the Customs Consolidation Act, or any other Act that might be suitable or relevant, should be embodied here and applied in the Statute. That would be the reasonable course. In other Acts of Parliament it is frequently stated that in an Order a Minister may impose penalties not exceeding such and such penalties; fines not exceeding such and such an amount or imprisonment of such and such an amount. That is proper Parliamentary legislation, but for the House simply to pass an Act saying that a Minister may make an Orderproviding for the punishment of any failure to comply with an order, or with the section under which it is made,would be setting a most invidious precedent, and to do that in a hurry in a Bill which is proposed in this way, all of a sudden, with no opportunity for consider- 1087 ation, and with none of the legal Members of the House here to have their attention drawn to it, is most undesirable. I wish there had been present some of the private Members of the House who are lawyers, who on previous occasions have risen in their places and have spoken in objection and protest against provisions in Bills conferring excessive powers upon the executive and which, in certain circumstances, ousted the jurisdiction of the court in favour of Ministerial Orders.
This is no new question. Under the leadership of the present Lord Chief Justice, Lord Hewart, there arose a very strong movement in protest against the growing tendency in Parliament of conferring upon Ministers arbitrary powers ousting the jurisdiction of the courts; so much so that a committee was appointed under the chairmanship of Lord Donough-more, called the Ministers' Powers Committee, and that committee, in the most emphatic terms, protested against the growing practice in Acts of Parliament of inserting provisions giving excessive powers to Minsters. The matter came up in the course of this Parliament under an Agricultural Marketing Bill. I drew attention to the fact that that Bill included a provision that any Order made by the Minister should be held to be valid, whether it was within the terms of the Statute or not, and that no proceedings in any court could be taken to challenge any Order that was made under the signature of the Minister. When we from the Liberal Benches protested against that provision as being an invasion of the liberty of the subject and an excessive power to be conferred by Parliament on the Executive, the Government refused to give way, but the matter was taken up on the Motion of Lord Reading, who was supported by leading legal authorities in the other House to such purpose that the Government were compelled to give way, and that Bill was amended to enable Orders within a certian period of time to be challenged in the courts.
Here we have as grave an invasion, and in some respects perhaps a graver invasion, of the principle that individual Ministers shall not be given excessive powers, and that their powers shall have specific Parliamentary sanction. I appeal to hon. Members in all parts of the Com- 1088 mittee to view this provision seriously. It is the first time that Parliament has ever been asked to legislate in these terms. I trust that it will not be left to those who sit on the Liberal Benches to make a protest, but that the Amendment moved by my hon. Friend the Member for Dundee (Mr. Dingle Foot) will receive some other measure of support. I hope that the matter will be considered, that the practice of previous years will be restored, and either specific penalties inserted or else the penalties already provided by Parliament for similar offences will be included in the Bill.
§ 10.6 p.m.
The criticism upon this paragraph has been of a twofold character; first of all that there was insufficient recognition of the words, and secondly that there was no mention of any maximum penalty. I recognise that there is a good deal to be said for the criticism, and although it appeared at first that there was some difficulty, I think I have now been able to get over it. Therefore, if the hon. Member is prepared to withdraw his Amendment I shall be very happy to submit to the Committee words which I think will carry out both the purposes, amend the words of the paragraph and also put in maximum penalties.
§ Mr. DINGLE FOOT
I appreciate the manner in which the Chancellor has met us, and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
I beg to move, in page 7, line 21, to leave out "failure to comply with," and to insert "breach of." This is the first of three Amendments.
§ Amendment agreed to.
I beg to move, in page 7, line 22, after the word "or," to insert "any failure to comply."
§ Mr. DINGLE FOOT
We thank the Chancellor of the Exchequer for the concession he has made, and we, of course, accept the alteration which he proposes.
§ Sir S. CRIPPS
I would like to tell the Chancellor that we are grateful, as far as the objection I took to the wording 1089 of the paragraph is concerned. The words that he now proposes seem quite satisfactory.
§ Amendment agreed to.
Further Amendment made: In page 7, line 23, at the end, insert:
So, however, that such punishment shall not in the case of a summary conviction exceed a fine of one hundred pounds or imprisonment for three months, or both such fine and imprisonment; or for a second or any subsequent conviction a fine of five hundred pounds or imprisonment, or both such fine and imprisonment."—[Mr. Chamberlain.]
§ Bill reported; as amended, considered.