HC Deb 06 April 1943 vol 388 cc536-41
The Chairman

I propose to select the Amendment in the name of the hon. Member for Dumbartonshire (Mr. McKinlay) and other hon. Members, and perhaps it will be convenient to discuss that Amendment and the next Amendment in his name and that of his hon. Friends together.

Mr. Mathers (Linlithgow)

I beg to move, in page 12, to leave out lines 12 to 20.

I had hoped that, in putting this Amendment to the Committee on behalf of hon. Friends and myself, I would be doing it in the presence of one of the Scottish Law Officers. It is not quite the same to put the point that I wish to make to an English Law Officer, who is a Scotsman. It does not work out in the way that I wished. The point is a very simple one. There is some fear in the minds of hon. Members and myself that these means provided to an employer of avoiding responsibility for a breach of the Act prove an outlet that is too easy for him. Really the Amendment to leave out lines 12 to 20 of the Clause is moved in the interests of the worker who may be affected. One can see the possibility of an employer taking the action of putting up a notice in his establishment laying down certain instructions for the benefit of the staff, but at the same time letting it be known to the staff by word of mouth that he would not expect them strictly to adhere to the Regulations set out in the printed formula that he hangs up in a convenient place in the establishment. It is to deal with a point of that kind that it is suggested this particular part of the Clause should be omitted, although I have to agree that for my own part I look upon the wording here as more direct, simple and clear to understand than the portions in Clause 11 for which these words have to be used as a substitute to apply to Scotland. Sub-sections (2) and (3) of Clause 11 have been worked upon in the past in respect of other Acts of Parliament, and I am not so well informed about the particular formula that is set out here to take their place and to apply to Scotland. Although it might appear that those Subsections give very great opportunity for prosecution and litigation, I understand they have not caused trouble to any considerable extent. Perhaps the Government front bench can give me similar information about the words that are set out here which we are seeking to have set aside in order particularly to get to know exactly what the position is on the lines I have indicated.

You indicated, Major Milner, that the two Amendments should be taken together. It seems to me that another point is dealt with in the second Amendment, and perhaps it would be well if I allowed, with your permission, the Amendment as I have moved it to be dealt with without proceeding at the moment to the other point.

The Solicitor-General

I am highly conscious of my imperfections in rising to answer a point which is really concerned with the law of Scotland. I can only assure my hon. Friend in mitigation that a good deal of the blood of Scottish lawyers runs in my veins, and I hope that I may be able to satisfy him in this imperfect way. The difference between the two provisions depends on the different systems of instituting prosecutions in the two countries. I take the English system first, because it comes first in order in the Bill. Clause 11 contemplates the English system, where anyone can institute proceedings by laying an information. In Scotland proceedings have to be instituted by the Lord Advocate, and by the Procurator Fiscal in country districts. Therefore, the provision which was apt to meet the English situation of letting the defendant, that is, the employer, on the first information come forward in turn and say, "I am not to blame, but 'A.B.' is to blame," would not do and would not work in Scotland.

We have to try and keep the equity of the matter balanced between the two countries, and therefore we had to try and find words. I think that my hon. Friend was inclined to agree that the words are not in themselves inapt in dealing with the situation, and I hope he will see that the employer has to prove to the satisfaction of the court, (1), that he used due diligence to secure compliance with the Act and any relative Regulation or Order made thereunder, and, (2), that the default was due to somebody else The only difficulty is that you cannot bring that other person to the court, but it would be open to the Fiscal to bring him before the court.

I was very interested in the example that my hon. Friend gave of the employer who might put up a notice on the wall and then say, "Do not bother about it." I have actually had experience on this point, and it may reassure my hon. Friend. It was a Factory Act case where the employer provided a guard and then said to the boy who was working the machine, "Do not worry about putting on that guard; it will merely hold up your work." The court before whom he appeared said that that was not providing a guard and was not in compliance with the Regulation, and dealt with the matter accordingly. I happen to have had that experience, and if it interests my hon. Friend I will show him the matter at any time he likes. So I think that his doubt, which I am very anxious should be assuaged, is really dealt with, and I hope that this will prove a workable method. It has not a statutory history—I want to be fair to my hon. Friend—but they are the best words that we can find to make the position similar in both countries and to put employers and workers in the same position on either side of the Tweed.

Mr. Rhys Davies

I would like to say one or two words on this very important point. The right hon. Gentleman and the learned Solicitor-General probably know that we have had conversations with the Minister of Labour on this very serious provision. Clause II, which this Clause amends for the purposes of Scotland, follows the Section in the Trade Boards Act, and although I was a little alarmed at Clause n, which this; Clause amends, I have been assured that the number of prosecutions that have cropped up has been almost infinitestimal. It occurred to me that the Government might some day consider this problem, especially when the prosecution lies against the employee, when the benefit of the offence committed by the employee inures to the employer. I am connected with the distributive trade, and there, although an employer need not tell an employee, a good deal is often done by winking. In this sort of trade business is not carried on exactly as if it were being carried on in a factory or a coalmine, where things are very much more specific.

The next point I wish to put is this—and I have raised it before in connection with coupon offences, where the prosecution lies with the Board of Trade. I think I am right in saying that in one case the employees were heavily fined, and so was the firm, but practically all the profits that inured went to the firm and not to the employees. I trust that the Ministry of Labour will be good enough to see to it that when they institute prosecutions they will not do what these words imply to the layman—almost invite the employer to excuse himself and put the blame on the employee. I have no legal training, but I think that if the Solicitor-General reads this Clause in conjunction with Clause II, he will see that a very smart lawyer, assisting an employer, would almost take it for granted that his job would be to get the employer out of his difficulty in a court of law and throw the responsibility on the employee.

Finally, I have always understood that where there was an offence such as watering milk or selling underweight the employer and not the employee was prosecuted. The employer then had his redress by dismissing the employee. I always thought that that was the case. However, if the Ministry of Labour will be good enough to see that no prosecution will lie against the employee where the benefit of the offence committed by the employee inures to the employer, I shall be grateful.

Amendment negatived.

Mr. Mathers

I beg to move, in page 12, line 21, at the end, to add: and (c) 'licensing justices' shall mean 'licensing court,' 'intoxicating liquor' shall mean 'exerciseable liquor' and references to the Licensing (Scotland) Acts, 1903 to 1934, shall be substituted for references to the Licensing Acts, 1910 to 1934. This Amendment is an attempt to safeguard the separate Scottish position. I notice that a curious misprint has crept into the Amendment on the Order Paper, and I must say it is the first time I have seen liquor described as "exerciseable" liquor. I am sure we all realise what is meant and can only conjure up in our imagination what "exerciseable liquor" would be. This Amendment has been put down to ascertain from the Government whether separate provision as defined under the Licensing (Scotland) Acts is properly safeguarded in this Measure. Failing that, we ask that words shall be used in order to safeguard the Scottish position properly.

The Solicitor-General

I have gone into the position as it obtains in Scotland with such care as I could, and I can see nothing in the Bill which will adversely affect the licensing position or the powers of the licensing justices in any way. The only possible imaginary set of circumstances which I have been able to conjure up is the idea that some wages board might insist on such intervals for workers that they would not be able to be there at the permitted hours, but clearly that is such a stupid idea as to the way a wages board would work that I do not think we need consider it very seriously. I have tried to fit in various sets of circumstances that could arise, and this matter has been considered carefully in the Department from a practical point of view and by Parliamentary counsel, and the views of the Scottish Office have been sought, I understand. I have not seen the Scottish Office myself, but I understand that they have been consulted in the matter. Yes, I have now been assured in the usual way that they have been seen. Everyone who has considered this matter takes the view that it would not have any adverse effect.

Mr. Mathers

With that assurance, which naturally removes all my scruples, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause ordered to stand part of the Bill.

Clause 19 ordered to stand part of the Bill.