NEW CLAUSE.—(Penalties for offences.) (Hansard, 18 May 1939)

§ Mr. Dingle Foot
I beg to move, "That the Clause be read a Second time."
This Clause deals with the punishments to be imposed for breaches of the regulations made under the Bill and to ensure that the punishments shall be laid down in the Bill and not left to be determined by the regulations themselves. This is a somewhat different type of Clause from the last one which we discussed, but again it raises a question of principle, and I hope the Government will be as accommodating on this Clause as they were on the last one. In the Bill as it now is, there is a power to make regulations and to prescribe within the regulations themselves what shall be the punishment for a breach of those regulations, and in the Bill there is no limit. If hon. Members will look at Clause 6, Sub-section (5)—a Sub-section which was not originally in the Bill, but which was inserted during the Committee stage—they will see that the Minister is given power to make regulations in order to prevent evasion by employers. Nobody quarrels with the purpose of that provision, which is to meet the case of the employer who takes a man back after his militia service and then sacks him after a few days. But if hon. Members will look at the wording closely, they will see that it is stated that the Minister may make regulations for those purposes, and such regulations may make provision for the punishment of breaches of the regulations. There is no limit inserted in the Bill. This represents a new and, in my opinion, an entirely vicious practice which has grown up during the last year or two. It frequently happens that Statutes are passed by Parliament empowering a Minister to make regulations, although seldom do we give a power quite as wide as that in this Sub-section; but in the past Parliament has always inserted in the Bill 1699 a provision as to what shall be the punishment for any breach of those regulations. In the past, Parliament has always done one of two things: either it has stated in the Bill that the maximum penalty should be so much, or it has said that the Minister may annex a penalty to a breach of the regulations not exceeding a certain amount or a certain length of imprisonment; that is to say, the amount of the penalty or the kind of penalty has always been determined by Parliament and not by a Government Department. I think it is relevant to quote one recommendation of the Committee on Minister's Powers. That Committee did not deal with this particular practice, because the practice had not arisen when they reported; but they made a recommendation which I think is relevant to this matter. I see that the Parliamentary Secretary to the Ministry of Labour is in his place.
I remember hearing a very eloquent speech which he made, before he was raised to his present high office, on the subject of the Donoughmore Report, when he said what an admirable report it was and that every hon. Member must agree with its conclusions. I hope that he still holds that view, because he will remember that the Committee said in most emphatic terms that the precise limits of the law-giving power which Parliament intended to confer on a Department should always be denned in the clearest terms by the Statute and that even when a discretion was intended to be conferred its limits should be defined with the utmost clearness. I hope those words still commend themselves to the Parliamentary Secretary to the Ministry of Labour as they did a year or two ago. Of course, that recommendation has been entirely ignored in the wording in the Sub-section to which I have referred. In this case there is an absolutely unlimited discretion in the Department to impose any punishment it pleases for a breach of these regulations. There is no sort of restriction on the punishment which the Minister may impose. If he wished to do so, he could, under this Section, even impose the death penalty for a breach of the regulations; he could, if he wished, bring back the thumbscrew and the rack as a punishment for a breach of the regulations.
There is, then, this remarkable feature. If hon. Members will look at Clause 6, 1700 they will see that Sub-section (1) deals with the employer who fails to reinstate a man who has come back from military service, and it is laid down that if he fails to do so, he shall be liable to a fine not exceeding £50, and that the court may order him to pay to the person whom he has failed to reinstate an amount equal to 12 weeks' wages. What an odd thing it would be if an employer were liable only to a fine of £50 for a breach of the statute, and if, as might happen, he were liable to imprisonment for a breach of the regulations. I am not arguing as to what is the correct penalty—and hon. Members may take the view that under Clause 6 the offending employer should be liable to imprisonment—but certainly there ought not to be a heavier penalty for a breach of Ministerial regulations than for a breach of the terms of an Act of Parliament.
It may be said that there is no intention of imposing a heavier penalty. If that be so, why not put it in the Bill, so that Parliament may know what the penalty is to be and what sort of punishment it is intended to inflict upon citizens of this country. I know it will be said that the regulations are to be laid before Parliament for 40 days. There are two answers to that: first, that we cannot amend the regulations, and that hon. Members will be very reluctant, I think, to reject the whole of the regulations simply because they disapprove of a particular penalty that is imposed; and secondly, that the regulations become law at once, before Parliament even sees them. Under the Bill, there is not even a provision for antecedent publicity. I think I am right in saying that the provisions of the Rules (Publications) Act do not apply. These regulations will be made and there may be a punishment, the extent of which we cannot tell, coming into effect immediately, without Parliamentary approval.
May I briefly remind the House of the history of this practice? The first time that an expedient of this kind was proposed was in the Debts Clearing Offices and Import Restrictions Bill, which came before the House in June, 1934. There it was proposed that the Board of Trade should have power to make an Order and might itself prescribe the penalty for a breach of its own Order. The Attorney-General, who was then Solicitor-General, was in charge of the Debate. He will remember that there were protests from 1701 different parts of the Committee, and that he himself said that he could find no precedent for a provision of this kind. As a result of the speeches that were made, the present Prime Minister, who was then Chancellor of the Exchequer, eventually gave way. He said, on 26th June, 1934: The criticism upon this paragraph has been of a two-fold 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."—[OFFICIAL REPORT, 26th June, 1934;col. 1088,Vol. 291.] The point then was precisely the same as that which I am now raising, and the present Prime Minister recognised that there was substance in it. The second occasion when a provision of this sort was made was on the Merchant Shipping (Spanish Frontiers Observation) Bill, which came before the House in March, 1937, in the small hours of the morning. The Government got the provision through on that occasion, although the Solicitor-General, who was in charge of the Bill, said: I know of no precedent for a Clause of this kind leaving the penalties entirely open."—[OFFICIAL REPORT, 18th March, 1937; col. 2434; Vol. 321.] The argument that was then advanced was that, in dealing with the question of the observation of the Spanish frontiers, for the enforcement of the Non-intervention Agreement, we were entering into an entirely uncharted territory as far as the law was concerned, and that it was very difficult to anticipate what penalties would be sufficient. But that is not the case now. In dealing with similar offences earlier in the same Clause, there is a definite penalty of £50 stated. I cannot see any reason for not having the same provision when dealing with the later Sub-section. I urge upon the Attorney-General that these powers are entirely unnecessary here, and that there is no good reason why the House should depart from the normal and salutary practice of putting a definite maximum in the Bill. As I have said, it would be a remakable thing—and it could happen—if the penalty for a breach of the regulations were 1702 higher than the penalty for a similar offence which was a breach of the Act itself.
I want to make it clear that my hon. Friends and I are not in any way defending evasion. We are not saying that the employer who tries to evade the provisions should not be punished, for we think that he should. We think it is right and proper that he should pay a heavy fine if necessary, and it might be urged with some reason that a term of imprisonment might properly be included. It is proper that there should be in this part of the Clause, as in the earlier part, a provision that he should make some amends to the man who has been dismissed up to an amount representing 12 weeks' wages. I submit, however, that it is entirely wrong that we should leave these matters open, and leave to some Whitehall Department, however conscientious and wise it may be, the determination of these matters which vitally effect the liberty of the subject.

§ Sir Percy Harris
I beg to second the Motion.

§ The Attorney-General
The hon. Member for Dundee (Mr. Foot) began by expressing the hope that the Government might be as accommodating on this new Clause as they were on the last one. I cannot quite fulfil his expectations, but I hope that I may satisfy him and that, in view of the assurances that I shall give him, he may be willing not to press the Clause.
I agree with practically everything that the hon. Member said. I think that in his researches, which obviously have been considerable, he may have overlooked the Livestock Industry Act, and I am not sure that he has not overlooked the Eire Agreement Act. As the hon. Member very seldom overlooks anything, I think it is right that his delinquencies in that respect should be pointed out, for we rely upon him not to make mistakes and omissions of that kind in dealing with points that raise broad and fundamental constitutional issues. Quite frankly, however, I agree with the principle. I think Acts ought to contain the maximum penalties that can be imposed under regulations. This Bill is a rather complicated one, and the wording of the new Clause would not be right, for reasons 1703 which I will indicate. First of all, the penalty under Clause 1 is £5. Regulations can be made under that Clause as under Clause 6. The wording of the new Clause would enable a penalty of £50 to be put in the regulations under Clause 1.

§ Mr. Foot
I have endeavoured to avoid that, because the wording of my new Clause is: If any person acts in contravention of, or fails to comply with, any regulation made under this Act and contravention of, or failure to comply with, that regulation is not made an offence under any other provisions of this Act.… I may have failed to do that, but it was my intention.

§ The Attorney-General
I think the hon. Member has failed to do it, and in view of the special circumstances of this Bill—and while accepting what is, I think, a right principle—I ask the hon. Member not to press the Clause. There is also a provision as to the 12 weeks' remuneration, and the hon. Gentleman agrees that it would not be unreasonable that the regulations should also be able to incorporate that which is not strictly a penalty. I can assure him and the House that the regulations will not impose maximum penalties greater than those in the substantive parts of the Bill which deal with offences. In view of that quite definite assurance, I hope the hon. Gentleman will not press his Clause.

§ Mr. Foot
Before the right hon. Gentleman sits down I should like to be quite sure what the assurance is. Is the assurance that a definite maximum will be put in the Bill? If so, I will certainly withdraw the Clause. I do not want an assurance about something which is going to be done in the Regulations. If the intention is that the maximum should not be greater than £50, why should it not be put into the Bill itself, and avoid what the Attorney-General admits is a very undesirable practice?

§ The Attorney-General
The assurance is that the penalties under any Regulations will not exceed the penalties in the Act. The hon. Gentleman knows the position in which this Bill is. We want to accelerate these further stages as much as possible, in another place as well as here. 1704 It is desirable to avoid redrafting and the insertion of an Amendment at a later stage, and I ask the hon. Gentleman and the House in the special circumstances of this Bill to accept my assurance on behalf of the Government that the penalties imposed under the Regulations will not exceed the penalties of this Bill. If, in spite of that assurance, the hon. Member presses his Amendment, I shall recommend the House to go to a Division.

§ Mr. H. G. Williams
I should like to congratulate the hon. Member for Dundee (Mr. Foot) on having raised this point. The Attorney-General has done his very best to meet him, but it is of the utmost importance that all legislation involving Regulations should be examined in the most meticulous way. I well remember a recent Debate about an offence which was going to be created because a policeman might go into a garage and charge you with an offence in your absence if your brakes were not in working order. As a result of our protests against that Regulation, it was ultimately withdrawn and amended. But on this issue the Regulations, I imagine, will be submitted to us at a very early date, and therefore the assurance of the Attorney-General is of very great value. If it were an assurance in regard to an indefinite future, it could only bind himself and the present Government, and it would not necessarily bind his successors for all time. But in view of the fact that the assurance has been given in such definite terms, and having regard to the fact that any Regulations that are to be made must be made at a very early date, the assurance is of much higher value than would otherwise be the case. The reason why I have risen is because I want to support the hon. Gentleman in the constant struggle he is making to see that our liberties are not given away by the introduction in Acts of Parliament of powers to vary the terms of the Act by means of a procedure which is something less than an Act of Parliament itself. It was only a week last Friday, in connection with the Coast Erosion Bill, that we had what in principle was an identical Debate. We carried the matter to a Division, and ultimately we won by 61 votes to 51. The same underlying principle was involved on that occasion. I think it is very important that we should not abandon our 1705 watchfulness in these matters, which so much concern the liberty of the subject.