HC Deb 19 December 1946 vol 431 cc2253-60
Mr. Henry Strauss

I beg to move, in page 17, line 7, after "is," to insert "unreasonably."

Mr. Glenvil Hall


Mr. Strauss

No, it is "unreasonably." I think the hon. Gentleman has yesterday's Order Paper. "Unreasonably" is the correct word.

I promise the Financial Secretary, and the hon. and learned Gentleman the Solicitor-General, to treat this very briefly. The point is a short one but, I think, not unimportant. I confess, after the discussion we had in Committee, that I was optimistic enough to expect that we should have had some Government Amendment dealing with this Clause, and, while I will not repeat anything of the lengthy argument we had last lime, I want to remind the House of the difficulty with which I am attempting to deal. The Clause as it stands renders it a criminal offence to do or to refrain from doing certain acts with the intent that is set out. I believe it was suggested from these benches on the last occasion that the right way to deal with the object the Government have in mind is to make it a criminal offence to do certain things with intent, or to refrain from doing certain things which it is a duty to do; but to refrain from doing an act with intent introduces an offence of almost intolerable vagueness.

In order to show the point of the Amendment I will deal with the latter half of the prohibition, that is, with the prohibition of refraining from doing. I believe that to put in the word "unreasonably" will relieve the innocent man who is frightened of committing an offence, which is the last thing he wishes to do. It will prevent him from doing an act through fear when it is in the national interest that he should refrain from doing it. One of the illustrations I gave on the last occasion was the case of a man who is not too sure either of the honesty or, alternatively, the solvency of his debtor What is his duty if he thinks that the most he can get of his debt is three-quarters if he acts at once, but that, if there were some reasonable delay, he might get the whole of his debt within a short period? Even to consult the Treasury for an answer might destroy the chance of a settlement which was desirable in the interests of the creditor and in the interests of the Government. If a man had just that degree of elasticity— that he must not unreasonably delay the payment of the debt—I believe it would obviate a good deal of the mischief of this very vague criminal offence as it stands. As I said at the beginning of my remarks, I do not think this Amendment is the best way of dealing with the problem. I had hoped that the Government would propose a more radical Amendment, which I believe they may have to introduce in another place, but, since they have decided to leave the words substantially unaltered. I suggest that we should improve the matter by inserting the word "unreasonably."

7.45 p.m.

Mr. Foster

I beg to second the Amendment.

The Clause seeks to make it an offence to do certain acts with certain intents; it also makes it an offence to refrain from doing such acts with certain intents. It is quite common in criminal law for the doing of an act to be made an offence; it is less common in criminal law to make the refraining from an act a criminal offence. It is fairly common in law to make the doing of an act with a certain intent a criminal offence, and assault with intent to cause grievous bodily harm or the intent to kill are examples. What is not a feature of our criminal law is to make the omission to do an act, with a certain intent, a criminal offence, although it is common to make not doing an act an offence in itself. If a person does not do something which it is his legal and moral obligation to do, it is an offence. Within my recollection of the criminal law, it is unique to make the not doing of an act an offence, if it is accompanied by an intent.

I do not know whether many people appreciate that under ordinary criminal law, it is not one's duty to save life. If you are passing the Round Pond in Kensington Gardens and see a couple of children drowning who could be saved if you stretched out your walking-stick, and you do not do so, you commit no criminal offence, although many people would think you are doing something which is wrong. It is the basis of the rule of criminal law that an intent cannot be coupled with not doing an act. Let us consider the case of two persons who have refrained from doing a certain act. In the first case, a man has refrained from doing an act because he is lazy, or cannot be bothered, or has not got down to answering a letter. In the second case a man has failed to do exactly the same thing, but with intent to delay payment, and if he is at all dishonest, no one can prove it against him. That leads us to having to distinguish between these two men entirely on the question of intent. During the Committee stage the Solicitor-General was pressed to say whether a man who refrained from doing something which was not his legal, social or moral obligation to do, was committing an offence.

Take the case of a man who is owed 20,000 dollars by his New York importer. The importer is refusing to pay him. The English exporter is advised that it would cost him some 10,000 dollars to sue the New York importer to get a legal decision as to whether the amount was owed or not. I should like to know what the Solicitor-General would advise that man to do under this Clause. If he refrained from suing, has he committed an offence? I imagine the answer is that he only commits an offence if he refrained from spending 10,000 dollars with intent to delay payment. The man might say that in ordinary times, if the money had not to be brought into this country, he would risk 10,000 dollars to get 20,000 dollars, but as it is he is not going to bother. One can ring the changes in circumstances of this sort again and again, but there is an instance where a man does not know what to do. He is in two minds; he does not know whether it is worth spending 10,000 dollars in sterling to bring 20,000 dollars to this country, or whether, as the case is doubtful, he will let it go. If "unreasonably" is inserted then you get the logical definition of what constitutes a crime. You get, first of all, the man who does an act with intent to delay payment. He has committed an offence.

If, on the other hand, he refuses to comply with a demand to his creditor which it is not his duty to perform he is being reasonable in refusing, and you do not go into intent. You do not have to try his thought alone. But there is another test: is it reasonable to do so? Debtors the world over can use their debts in order to bring pressure on their creditors. If a man says, "I will not pay you today, but I will pay you if you do something for me," he is bound to do that under the Clause. The New York exporter says, "I owe you 20,000 dollars, and I will pay you if you introduce me to some other people, and get them to send me some goods," or, "I will pay you if you take some more goods from me," or, "I will pay you if you join in a business venture with me. "What is the man to do? If he is left to his own devices he is in two minds. He might say," I will not do that. I would if I was going to get money in dollars for myself, but it is only for the Government, and I do not see why I should introduce you to anybody else." The Clause can be operated to force a creditor who has not been paid into doing things he does not want to do, because, if he refrains from doing them with intent, he has committed an offence.

The object which the Government seek to attain could be done by the insertion of the word we propose. The man would still commit an offence by refraining from doing things with intent, but the test would be whether he was reasonable in refusing to do them. At the moment, the test of reasonableness does not come into it. The test is purely one of intent. You can have two men, both refraining from doing something. If one has intent he has then committed an offence. The criminal law in England has always distinguished sharply between making it an offence to do an act with intent, and intent which does not exist. If I may return to the example of the children in danger which I gave just now, if their father refuses to help them then he is committing an offence, because it is his moral and legal duty to do it. The law says, quite properly, that people in charge of children are bound to try and save them. The criminal law, in a much greater case than refraining from doing an act to delay payment, has thought it wise not to make the intentions of thought of a man triable. If the ordinary criminal law makes the abstention from an act innocent, unless the person who abstains has any legal moral or social duty to do it, surely, in a more important case, where the creditor is owed money by somebody outside the United Kingdom, it should not be made an offence where there is intent to delay payment.

Mr. Glenvil Hall

The hon. and learned Member for the Combined English Universities (far. H. Strauss) wants to insert the word "unreasonably," before the word "delayed" in line 7 of Clause 24. From the argument that he has used, I understand that he is afraid that if the words of the Clause remain as they are, exporters in this country, who have money due to them, will be proceeded against because they have not acted with due speed, or do not act with due speed, in the collection of their debts, either in specific currency, or sterling, if that is the way in which the money has to be paid.

Mr. H. Strauss

It is not so much that I fear such a foolish action by the Treasury. I fear the hesitation in a man's mind because he is running the risk of a criminal offence, although he is entirely innocent. He may not know how reasonably the Financial Secretary is proposing to act.

Mr. Glenvil Hall

I want to get this clear, because I failed to understand why the hon. and learned Member was moving an Amendment of this sort. The purpose of this Clause is to assist this country, its citizens and exporters, to obtain the money due to them for goods which have been sent abroad. I would have imagined that the hon. and learned Gentleman would have been anxious to have seen that our exporters were paid for what has been sent overseas.

Mr. Strauss


Mr. Glenvil Hall

All the Clause does is to help exporters to receive, either in sterling or in specified currency, what is due to them. The answer to the hon. and learned Member is to be found in the same Clause, ' which provides that the payment of these debts shall be subject to the regulations and methods customary in the course of that particular trade or business. That being so, I cannot for the life of me see how exporters—and they are not children; most of them have been in this business for many years—will be frightened because, in an Act of Parliament, there is not the word, "unreasonably," before the word, "delayed." We have some experience of this matter, and we believe that most exporters will be delighted to feel that they have the Treasury and these words behind them in their efforts to get paid for what they sell. Without carrying the argument too far, I would like to tell the hon. and learned Member that during the war many debenture holders in the country were grateful to the Government for having used powers which are in Regulation 5, and which permit the Treasury to say, if they think the bargain is not good enough from the national or international point of view, that the offer shall not be accepted. I think that if he inquires in the City, he will find that the consensus of opinion, instead of being against the provisions which we are inserting, and to which we want the House to agree, will have no objection to them. Indeed, in the past they have been found useful and I have not the slightest doubt that in the future they will again be found useful.

8.0 p.m.

I would like to indicate to the hon. and learned Gentleman that the word "unreasonable," which he found useful in this connection appeared to the hon. and gallant Member for Holderness (Lieut.-Commander Braithwaite) in quite another light. When we were debating this Bill on 5th December, the hon. and gallant Gentleman said: It is impossible in practice to say what is a delay that is unreasonable, having regard to the ordinary course of trade. 'Unreasonable' is an extraordinarily wide word. Nobody knows what it means It may mean anything, and may be capable of any one of a hundred different explanations."—[OFFICIAL REPORT, 5th December, 1946; Vol. 431, c. 624.] I agree in this instance with what the hon. and gallant Member for Holderness said, and I think that it would be a pity to insert that word in this Clause. I, therefore, ask the House not to accept the Amendment.

Amendment negatived.