CLAUSE 7.—(Remedies for default.) (Hansard, 27 May 1938)

§ Mr. H. G. Williams
I beg to move, in page l0, line 21, to leave out Subsection (2).
I do not know whether we are to have the assistance of any lawyers on this matter, but there you may have two prosecutions in reference to one offence. The proposal is modified in part by Subsection (3), but the hon. Member for Rotherhithe (Mr. Benjamin Smith) has1938 1594 on the Paper an Amendment to leave out Sub-section (3). You may have very considerable difficulties with regard to prosecutions. Both the employer and the agent may be prosecuted, and not necessarily at the same time, in respect of the same offence. We ought to have a little further information before we allow the Sub-section to become part of the Bill.

§ Mr. Lennox-Boyd
This is an opportunity for me to ask my hon. Friend the Member for South Croydon (Mr. H. G. Williams) and the hon. Member for Rotherhithe (Mr. Benjamin Smith) not to press their Amendments but to leave the Clause as it is: I am conscious that at the moment I am dealing only with the Amendment moved by my hon. Friend the Member for South Croydon, but I think I would be in order in referring at the same time to the Amendment of the hon. Member for Rotherhithe.

The Deputy-Chairman
In the circumstances, if the hon. Member for Rotherhithe (Mr. Benjamin Smith) agrees, it might be agreeable to the Committee to discuss the two points as one.

§ Mr. Benjamin Smith
I agree with that course, Mr. Deputy-Chairman. Perhaps I may be permitted to explain the reason we put this Amendment on the Paper. During the Second Reading Debate I asked the right hon. Gentleman the Minister of Labour to give serious consideration to the question of the agent being utilised by an employer, who was, in fact, the delinquent, to take the responsibility for the act, and thus render the employer immune from being got at by the Traffic Commissioners with regard to the revocation of his licence on account of an offence. On that occasion, the right hon. Gentleman pointed out that this was a trade board custom. I would point out to the Committee that that trade board custom, as such, is very difficult to apply to an industry such as that with which we are now dealing. I know that the trade board custom is that, if a bona fide employer instructs his agent in Leicester, or somewhere in the Midlands, to meet the implications and conditions of trade board agreements, then if the agent fails in that duty, it should be the agent who is dealt with and not the employer.
1595 In this case, however, the agent can cover himself by the employer's request that the man shall overload his vehicle, that he shall work more hours than are permitted by Statute, and that he shall be paid an upstanding wage which does not take into consideration the question of overtime after a given number of hours. For such things the agent could be held to be responsible, and his employer would be able to say that his instructions were that the rates were to be paid, whereas, in fact, by a subterfuge the employer had arranged with the agent so to manipulate the conditions and wage sheets that they would be derogatory to the interest of the road haulage worker. I do not intend to press the Amendment to a Division, but I hope that the right hon. Gentleman will find it possible to give further consideration to this matter.

§ Mr. Pritt
On a point of Order, Mr. Deputy-Chairman. I see that there is on the Order Paper an Amendment in the name of the right hon. Gentleman, the Minister of Labour—in line 33, leave out "section," and insert "Act"—which, if it were pressed and carried would alter Sub-section (3) from a sub-section which deals with the question of the offence of not paying adequate remuneration into a sub-section which deals with every offence under the Act. Consequently, if this matter is discussed now in the discussion taking place on the two Amendments before us, we shall be discussing Sub-section (3) without any knowledge as to whether it applies this machinery to one small but important offence, or to the whole range of offences.

The Deputy-Chairman
In reply to the hon. and learned Gentleman, it is obvious that these two Amendments can much more easily be discussed together. I think they may be discussed on the assumption that the Amendment in the name of the right hon. Gentleman the Minister of Labour will be carried.

§ Mr. Lennox-Boyd
I think your assumption, Mr. Deputy-Chairman, is a fairly safe one, and I should like to deal briefly with the points that have been raised. There are three possible solutions to the problem raised by these two Amendments. Both Sub-section (2) and 1596 Sub-section (3) might be omitted, or Subsection (2) might be omitted and Subsection (3) left in, of Sub-section (3) might be omitted and Sub-section (2) left in. If both Sub-sections were omitted, the only remedy for a contravention of the Act would be to proceed against the employer, because the statutory remedy comes into force only as between the worker and the employer. The situation might arise in which the legal employer was entirely blameless and the agent entirely to blame. In the opinion of the Government, that would not be a satisfactory situation. If the Amendment of the hon. Member for Rotherhithe (Mr. Benjamin Smith) were carried and Sub-section (3) were deleted and Subsection (2) left in, it would be possible to proceed against both the employer and the agent, thereby securing a double conviction, which would also, in the opinion of the Government, be an unfair procedure. If, on the other hand, the last possible solution were adopted and the Amendment of my hon. Friend the Member for South Croydon (Mr. H. G. Williams) were carried and Sub-section (2) were left out and Sub-section (3) left in, Sub-section (3) would mean nothing, since the agent could never be convicted. In view of this difficulty, I hope both hon. Members will see their way to leave the Clause as it is.
This matter was fully discussed on the Second Reading, and in view of the observations then made by the hon. Member for Rotherhithe and other hon. Members, my right hon. Friend considered the subject very fully; but I would reiterate one or two of the arguments used in that Debate, because I think they could profitably be emphasised again. The employer must show that the contravention of the Act was without his consent and connivance, and that he used due diligence; and even then he would escape conviction, if a prosecution took place, only if his agent were in fact, convicted. In this industry, as hon. Members realise, there are numerous branches, and it would be a little hard to expect the employer to undergo all the penalties attaching to a contravention if, having used due diligence and without any consent or connivance, one of his branch managers contravened the Act. As the hon Member for Rotherhithe said, there are numerous precedents—even more numerous perhaps than he realises—under the 1597 Agricultural Wages Act, the Trade Boards Act, the Shops Act, the Sale of Food Act and the Factories Act, and diligent research would no doubt reveal other precedents as well. The case raised by the hon. Member for Rotherhithe on the Second Reading was concerned with a successful attempt to force the worker himself to break the law, and that of course, is a different matter from the situation which is now being discussed. I hope that, in view of those arguments, the hon. Members will leave the Bill as it is.

§ Mr. H. G. Williams
If the hon. Member for Rotherhithe (Mr. Benjamin Smith) will agree not to press his Amendment, I will withdraw mine.

§ Mr. Benjamin Smith
For the first time in my life, I am willing to come to an arrangement with the hon. Member for South Croydon (Mr. H. G. Williams).

§ Mr. E. Brown
I beg to move, in page 10, line 33, to leave out "section," and to insert "Act."
In moving this Amendment, I will deal with the point raised by the hon. and learned Member for North Hammersmith (Mr. Pritt) by pointing out that the Amendment is merely a drafting Amendment. Clauses 6 and 7 were originally one, and the Amendment is to make this provision apply to Clause 7.

§ Mr. Pritt
It may be only a matter of drafting, but it is important, because people will have to spend a great deal of money in administering the Act. [Interruption.] I do not get any of it. Clause 7 provides remedies for default. The Minister was good enough to explain that Clauses 6 and 7 were originally one, and that he wants this provision to apply to both. If that is what he really wants, would he mind saying so, and on the Report Stage re-drafting the wording so that it refers to "this Section and the foregoing Section" or something to that effect? The simple difficulty is that if the reference is to "this Act," it will apply to every offence under the Act. There could not be a case of worse drafting, and one which would be more likely to call forth savage comments from Chancery Judges in Courts of Appeal, 1598 than placing in one sub-section or two sub-sections a provision which ought to be in a general Clause covering all the provisions regarding offences.

§ Mr. Brown
I will look into this matter, and my legal advisers will see whether or not more apt words could be inserted.