HC Deb 19 December 1946 vol 431 cc2287-97
Mr. H. Strauss

I beg to move, in page 27, line 21, at the end, to insert: Provided that no person shall be held guilty of any offence by reason of any such direction as aforesaid if he was not in fact a resident or a non-resident as the case may be in the territory concerned at the time of the alleged offence. Clause 41 (2) gives the Treasury power to give directions declaring that for all or any purposes of this Act a person is to be treated as resident or not resident in such territories as may be specified in the directions. The House will notice that the powers given to the Treasury under this Subsection are entirely unlimited. They can declare that a person is resident or not resident anywhere. I submit to the hon. and learned Solicitor-General—he will no doubt correct me if he thinks that I am wrong—that there would be nothing to prevent, as a matter of law, the Treasury saying that a man was resident in one place for the purposes of certain Clauses of the Bill and resident in some quite different place for the purposes of other Clauses.

However fantastic the result which might be produced, it would be hopeless, at this stage, to urge the Government to make a more drastic revision of the Clause than I am proposing; but I think that the House will agree that, whatever other results flow from the Treasury direction, if the Treasury chose to say that a man was resident in Canada, that ought not to make him liable for a criminal offence on the basis that he was in Canada if in fact he was resident in England. The purpose of this Amendment is to say that, whatever directions the Treasury may give, they shall not enable a man to be treated as a criminal, if the facts stated in the Treasury direction were untrue at the time of the alleged offence.

I cannot help feeling that the Government will either accept this Amendment or something equivalent, if they do not like the exact wording. I cannot conceive that the Government really wish it to be said that they can at any moment declare by direction that any man is resident anywhere, and that in the interval, at any rate, between the time when the direction is made and the time when it comes to his notice, he may do an act which makes him guilty of a crime under this Bill, and he will have no remedy or defence whatsoever. I do not know whether it will be said by the Solicitor-General that there is no chance of such a direction acting so as to make the man ex post facto criminally liable, but I am sure, if he studies the terms of the Bill, he will agree that a man will beprima facie guilty of an offence under numerous Clauses if, in ignorance that a direction has been made by the Treasury under Clause 41 (2), he in fact does an act which is criminal under the Treasury direction. Therefore, the Amendment I move makes the proviso that whatever directions the Treasury gives dealing with residence or non-residence, no person shall be held to be guilty of any offence by reason of any such direction as aforesaid if he was not in fact a resident or a non-resident as the case may be in the territory concerned at the time of the alleged offence. That at least protects a man from the risk that the Treasury can make a direc- tion which states a fact which any court of law will hold to be wholly untrue, but which yet will make him criminally liable. They may say that a man is resident in America when in fact he is resident in Timbuctoo. The Treasury would have absolute power to do that under this Clause. I say that the court, if such a man is prosecuted, ought to be able to have regard to where, in fact, he was resident. Therefore, I ask the Minister who is to reply for the Government the following questions. First, does he agree that, as a matter of law, there is nothing in the Clause as it stands which will prevent the Treasury from saying that a man is to be treated as resident in one place for certain purposes under the Bill and is to be treated as resident in some quite different place for other purposes? My submission is that that is perfectly possible under the Clause as it stands. Secondly, I ask whether a man, in the absence of such an Amendment as this, will not Be liable to be found guilty of an offence of which he is morally entirely innocent. I ask the Government to answer this question and either to accept my Amendment, or to produce an Amendment of their own which will prevent the injustice against which my Amendment is directed.

Mr. Foster

I beg to second the Amendment.

I wish to congratulate the House in showing such interest in this most important Clause, which is concerned with the determination of residence. I think that many hon. Members who are now in the House may find it difficult to follow the objects of the Amendment, since they do not seem to have in their hands the Amendment paper or the Bill. This Clause, however, is the most important one in the Bill. The object of the Amendment is to lessen the likelihood of persons being convicted for an offence, which, in fact, they could commit under this Bill without knowing it. And the point of this Amendment is really to answer the question which I put to the Government on the Committee stage and to which I received no reply. The question I asked was, Supposing the Treasury gave a wrong determination about residence, what is the remedy of the subject and what defence does he have in a court of law if he is accused of having done something under the classification he is placed in by the Treasury?

Take a case on which I have to advise at the moment. It is the case of an American Army officer. She is in this country for six months and she is receiving a dollar allowance from her husband which is paid into an account of hers in Washington. She has a resident account here because she regards herself as resident in England and she has a foreign account in Washington. If the Treasury decide that she is resident in this country—and I think it is clear that she is not—they might decide that she has to be prosecuted in the police court for doing something as a resident which she is not supposed to have done, namely have a dollar account in the United States of America. If this Amendment were inserted it would allow her to say, "I am not, in fact, a resident of the United Kingdom. Therefore, I have not committed any criminal offence." It is a serious matter if this Bill allows the Treasury to make a decision which, as my hon. and learned Friend the Member for the Combined Universities (Mr. H. Strauss) said, affects practically every Clause of this Bill by deciding that someone is resident in the United Kingdom when that person might be outside the United Kingdom with regard to common exchange.

The principle of residence in this Bill is basic. Every Clause, except Clause 5, refers either to a person resident or nonresident in the United Kingdom, and it is essential in my submission that it should be made absolutely clear that if the Treasury give a direction which is wrong or which is arguable, there should be some way of appeal before the courts. In Income Tax, if there is a wrong direction and there is a dispute as to residence then the subject has a right of appeal to commissioners, and if it is wrong on a point of law, he can go to the hierarchy of the ordinary courts. But in an ordinary subject he has the right of appeal to special commissioners. In this Bill there is no appeal of any kind. The Treasury can show, and in my experience have shown, tendencies to give a wrong direction about evidence. They might say for the purpose of the Act that a person is resident in this country when in fact he is not so.

The person has no redress in the world and is automatically convicted of an offence which he or she may have done following the advice of his or her banker, solicitor or some such responsible person, who would assure the person that the Treasury could not say that he or she was resident in the United Kingdom, and yet the next day the Treasury, in their wisdom or even by mixing up the file or getting the facts all wrong or taking a view they have never taken before, find that this person is resident in the United Kingdom. Therefore, I do ask the Government to answer the question which my hon. and learned Friend put to them. I do not want them to think that the Treasury is never wrong, but rather to proceed on the assumption that if the Treasury is wrong what opportunities is there for a person in this country or outside this country, who persuades the Treasury that they are wrong, to get the question decided by some impartial arbitrator or judge. If they have some redress, or it is proposed to have that question answered in some other way, perhaps this Amendment might become unnecessary, but until they provide machinery for doing it, I submit that the Amendment is very necessary.

Mr. Maude

I have one very brief suggestion to make. My hon. and learned Friend suggested that possibly some other words might do, but reading through the Amendment I see a difficulty from the Treasury point of view. I think that there were clearly reasons for asking for the powers in Clause 41 (2) yet we do wish to give the person a chance to show that the direction is wrong. I would humbly suggest to the House that possibly we might have a form of words very much similar but putting the person concerned on the defensive. That seems to me to leave the innocent person who might be convicted as the result of a wrong direction with a reasonable opportunity to prove his innocence. He would be put in a position to say that the Treasury was wrong, and if he could show that in fact the Treasury was wrong it would be monstrous if he could still be convicted.

The Solicitor-General

The hon. and learned Member for the Combined English Universities (Mr. H. Strauss) complained against the Clause because, he said, it gave the Treasury excessive powers. That might be an argument relevant to the question whether Subsection (2) of Clause 41 should be in the Bill or not, and this argument was in fact adduced during the Committee stage in favour of the view that it should be omitted. But those arguments have been negatived and the Committee accepted the view on a Division that the Clause should stand as it is. There is no further Amendment to leave out Subsection (2) and therefore all those arguments directed to the generality of the powers conferred upon the Treasury are completely irrelevant to this particular point. Once the principle has been accepted that the Treasury are to have these powers, or powers like them, what the Amendment does is to introduce confusion and to render the powers completely nugatory. The hon. Member for Northwich (Mr. J. Foster) made what I thought was a very helpful speech in which he described the dilemma of the British wife of an American officer who had an account here and an account in New York, and who travelled between London and New York. I cannot conceive anybody who would be more pleased to have determined for her once and for all where she was resident. It would be the one thing she would want done for her.

I explained during the Committee stage that the object of subsection (2) of Clause 41 was to forward the convenience of people who were in doubt as to where their residence was, and the lady described by the hon. Gentleman would obviously be just such a person. She would not know where she was unless she could go to the Treasury and ask the Treasury to tell her. I would therefore pray in aid the hon. Gentleman's argument. It was a very strong argument in support of the Clause as it stands. But there are other objections to the Amendment. If it were accepted, what would it bring about? It would mean that for some purposes the direction would be valid, while for other purposes it might be invalid. Those who were affected by it would not know what the effect of it was. The Treasury, seeking to give validity to the order, would be easily circumvented because, notwithstanding the fact that a direction had been made, by ringing the changes upon his temporary residences anybody could make it extremely uncertain what a police court or the Old Bailey would say with regard to his residence. The result would be that the direction would be practically not worth the paper upon which it was written.

Therefore, the Amendment does not really introduce any safeguard for anybody. All it does is to make obscure a position which is clarified by the direction. If it were intended to revise it it would be much better to omit the clause altogether, but the Clause as it stands will assist people and will enable business to be done upon the footing that a particular person is resident for some or all of the purposes of the Bill in a particular place. If the proviso is now introduced, the whole situation is again going to be overwhelmed in obscurity and I can only ask the House to say that this Amendment should not be accepted. I know that the hon. Gentleman is asking whether different residences may be specified for different purposes. I should have thought they could be and that that would be to the advantage of anybody. It might well be that a person wanted to say he was resident in one place particularly in the case the hon. Gentleman mentioned—for one purpose, and resident in another place for another purpose. For all these reasons I must ask the House to reject the Amendment.

Mr. J. Foster

Before the Solicitor-General sits down, could he not tell me the answer to my question which I have asked several times. Suppose the Treasury were wrong?

The Solicitor-General

If the Treasury are wrong in saying where the residence of a person is, the direction stands, but that is the whole object of the direction —to remove doubt about it. If the Treasury say there is a doubt—where the person concerned perhaps moves between two countries—the very thing he wants is to know which is the country to be treated as the country of his residence. It may be that upon a strict and minute analysis of the facts the other country may be the proper one, but the person at least knows where he is, and a person who has a direction made with regard to him knows he must comply with that direction

Mr. J. Foster

Will the Solicitor-General answer the question I have asked? Suppose the Treasury are wrong—

Mr. Deputy-Speaker (Mr. Hubert Beaumont)

The hon. Gentleman has not asked leave of the House to speak again.

Mr. C. Williams

We have heard from the Solicitor-General tonight of the remarkable occupation of the Treasury—to tell us where we are. I really would like to draw attention to the state of confusion into which the Government have got, as a result of which they are putting up a Law Officer to explain to the House that a lady who is half the time resident in America and half the time resident in this country would really welcome the fact that the Treasury of all people should tell her where she is and what her true residence is. That is a very remarkable statement, and I only got up to comment on it. It seems interesting that that should be the legal view of the principal job of the Treasury today. I am sure the House as a whole welcomes the new job of the Treasury, and I hope that in future the Treasury will cease to collect taxes and only tell us where we are.

Mr. Quintin Hogg (Oxford)

I cannot help thinking that the learned Solicitor-General is a little below his usual high form. I wish to draw attention to the extraordinary dilemma the honest citizen might find himself or herself in under the present Bill. One assumes, I suppose, that the Government consider that they are passing good legislation in this Bill, and one assumes therefore that they would desire that other countries should pass exactly similar legislation as regards residence with them. Let us suppose that a lady or a gentleman is passing between two countries—France and Britain—from time to time, and the French Treasury and the English Treasury both have this power. The French Treasury, having followed the example of the British House of Commons in passing a tyrannical piece of legislation of this kind, says that everybody would like to have this matter settled once and for all and decides that the lady is resident in France, yet she may have an account in England. The English Treasury on the other hand decides—

Mr. Kirkwood (Dumbarton Burghs)

British, not English.

Mr. Hogg

Very well—the right hon. Gentleman the Chancellor of the Exchequer decides that it would be desirable to determine this question once and for all, and he decides that the lady is resident in Great Britain, or perhaps even in England, The position of that poor lady is most unfortunate. She might say: How happy could I be with either Were t'other dear charmer away! But the one thing she may not be able to do in either country is to appeal to get the real facts of the matter. This is only an example of how this tyrannical legislation will work out in practice. It is no doubt attempting to punish people who are doing undesirable things, but in order to do so time and time again it is rendering life for the ordinary citizen intolerable.

Mr. Assheton

The Clause as it is drafted certainly does not meet with the approval of hon. Members on this side of the House. The Amendment has certain objections which have been pointed out by the Solicitor-General. It is quite clear that unless the Government can find some way of meeting the very real demand on this side of the House for some method of appeal, we must register our vote against it.

Question put, "That those words be there inserted in the Bill."

The House divided: Ayes 83; Noes, 232.

Division No. 50.] AYES. [9.58 p.m.
Assheton, Rt. Hon. R. Herbert, Sir A. P. Ramsay, Maj. S
Beamish, Maj T. V. H. Hinchingbrooke, Viscount Renton, D.
Boles, Lt.-Col. D. C. (Wells) Hogg, Hon. Q. Ropner, Col. L.
Boothby, R. Holmes. Sir J. Stanley (Harwich) Sanderson, Sir F.
Bossom, A. C Howard, Hon A. Smith, E. P. (Ashford)
Bower, N. Hutchison, Lt.-Cm Clark (E'b'rgh, W) Snadden, W. M.
Boyd-Carpenter, J. A. Jennings, R. Spence, H. R.
Braithwaite, Lt.-Comdr. J. G Kingsmill, Lt.-Col. W. H. Stanley, Rt. Hon. O.
Buchan-Hepburn, P. G. T Lambert. Hon. G. Strauss, H. G. (English Universities)
Butcher, H. W. Legge-Bourke, Maj. E. A. H H Stuart, Rt. Hon. J (Moray)
Clarke, Col. R. S. Lindsay, M. (Solihull) Sutcliffe, H.
Clifton-Brown, Lt.-Col. G. Lloyd, Selwyn (Wirral) Taylor, C. S. (Eastbourne)
Crookshank, Capt. Rt. Hon. H. F C. Lucas, Major Sir J. Teeling, William
Crosthwaite-Eyre, Col O. E. Lucas-Tooth, Sir H. Thornton-Kemsley, C. N
Cuthbert, W. N. Macdonald, Sir P. (Isle of Wight] Thorp, Lt.-Col. R. A. F
Darling, Sir W. Y. McKie, J. H. (Galloway) Vane, W. M. F.
De la Bère, R Maclay, Hon. J. S. Wakefield, Sir W. W
Digby, Maj. S. V. Maclean, Brig. F. H. R. (Lancaster) Walker-Smith, D.
Dodds-Parker, A. D. Macpherson, Maj. N. (Dumfries) Wheatley, Colonel M. J.
Dower, Lt.-Col. A. V. G. (Penrith) Manningham-Buller, R. E. White, J. B. (Canterbury)
Dower, E. L. G. (Caithness) Marlowe, A. A. H. Williams, C. (Torquay)
Drayson, G. B. Marshall, D. (Bodmin) Willoughby de Eresby, Lord
Drewe, C. Maude, J. C. Winterton, Rt. Hon. Earl
Elliot, Rt. Hon. W. E. Morrison, Rt. Hon. W. S. (Cirencester) York, C
Foster, J. G. (Northwich) Noble, Comdr. A. H. P. Young, Sir A. S L. (Partick)
Fraser, Sir I. (Lonsdale) Peto, Brig. C. H M.
Galbraith, Cmdr. T. D. Pickthorn, K. TELLERS FOR THE AYE:
Gridley, Sir A. Pitman, I. J. Commander Agnew and
Grimston, R. V Prior-Palmer, Brig. O Major Conant.
Adams, Richard (Balham) Bramall, Major E. A. Dalton, Rt. Hon. H.
Adams, W. T. (Hammersmith. South) Brooks, T. J. (Rothwell) Davies, Edward (Burslem)
Allen, A. C. (Bosworth) Brown, George (Belper) Davies, Harold (Leek)
Allen, Scholefield (Crewe) Brown, T. J. (Ince) Davies, Haydn (St. Pancras, S.W.)
Alpass, J. H. Bruce, Major D. W. T Davies, R. J. (Westhoughton)
Anderson, A. (Motherwell) Buchanan, G. Davies, S O. (Merthyr)
Anderson, F. (Whitehaven) Burden, T. W Deer, G.
Attewell, H. C. Burke, W. A. Delargy, Captain H. J
Awbery, S. S. Callaghan, James Diamond, J.
Ayrton Gould, Mrs. B Chamberlain, R. A Dodds, N. N.
Bacon, Miss A. Champion, A. J Donovan, T.
Balfour, A. Cluse, W S. Driberg, T. E. N.
Barton, C. Cobb, F. A. Durbin, E. F. M.
Battley, J. R. Cocks, F. S. Dye, S.
Bechervaise, A. E. Coldrick, W. Edwards, John (Blackburn)
Bellenger, Rt. Hon. F. J Collick, P. Edwards, W. J. (Whitechapel)
Benson, G. Collindridge, F. Evans, E. (Lowestoft)
Berry, H. Collins, V. J Evans, S. N. (Wednesbury)
Binns, J. Colman, Miss G. M. Farthing, W. J.
Blackburn, A. R Comyns, Dr. L. Field, Captain W J
Blenkinsop, A. Cooper, Wing-Comdr. G. Follick, M.
Boardman, H. Corbet, Mrs F. K. (Camb'well, N W) Fraser, T. (Hamilton)
Bottomley, A G Corlett, Dr. J. Ganley, Mrs. C. S.
Bowden, Flg.-Offr. H. W Corvedale, Viscount George, Lady M. Lloyd (Anglesey)
Bowles, F. G. (Nuneaton) Cove, W. G. Gibson, C. W.
Braddock, Mrs. E. M. (L'pl, Exch'ge) Crawley, A. Gilzean, A.
Braddock, T. (Mitcham) Daines, P. Glanville, J. E. (Consett)
Gooch, E. G. Moody, A. S. Solley, L. J.
Gordon-Walker, P. C Morgan, Dr. H. B. Soskice, Maj. Sir F
Granville, E. (Eye) Morley, R. Sparks, J. A.
Greenwood, A. W J. (Heywood) Morris, P. (Swansea, W.) Stamford, W
Grey, C F. Murray, J. D Steele, T.
Grierson, E. Nally, W. Stewart, Capt. Michael (Fulham, E.)
Grffiths, W. D. (Moss Side) Naylor, T. E Stubbs, A. E.
Gunter, R. J. Nichol, Mrs. M. E. (Bradford, N.) Symonds, A. L
Haire, John E. (Wycombe) Nicholls, H. R. (Stratford) Taylor, H. B. (Mansfield)
Hale, Leslie Noel-Baker, Capt. F. E. (Brentford) Taylor, R. J. (Morpeth)
Hall, W. G. Noel-Buxton, Lady Taylor, Dr. S. (Barnet)
Hamilton, Lieut-Col. R Oliver, G. H Thomas, D. E. (Aberdare)
Hardy, E. A. Orbach, M. Thomas, I. O. (Wrekin)
Hastings, Dr. Somerville Palmer, A. M. F. Thomas, John R. (Dover)
Haworth, J Parkin, B. T. Thomas, George (Cardiff)
Henderson, Joseph (Ardwick) Paton, Mrs. F. (Rushcliffe) Thurtle, E.
Herbison, Miss M. Paton, J. (Norwich) Tiffany, S.
Hobson, C. R. Pearson, A Titterington, M. F
Holman, P. Peart, Capt. T. F. Tolley, L.
Holmes, H. E. (Hemsworth) Perrins, W. Turner-Samuels, M
Hubbard, T. Piratin, P. Ungoed-Thomas, L.
Hudson, J. H. (Ealing, W.) Popplewell, E. Vernon, Maj W. F
Hughes, Hector (Aberdeen, N) Porter, G. (Leeds) Viant, S. P.
Hynd, H. (Hackney, C.) Pritt, D. N. Wadsworth, G
Irving, W. J. Proctor, W. T Walkden, E.
Isaacs, Rt. Hon. G. A Pursey, Cmdr. H Wallace, G. D. (Chislehurst)
Jay, D. P. T. Randall, H. E. Wallace, H. W. (Walthamstow, E.)
Jeger, G. (Winchester) Ranger, J. Warbey, W. N.
Jones, D. T. (Hartlepools) Rankin, J. Weitzman, D.
Jones, Elwyn (Plaistow) Rees-William, D. R. Wells, W. T. (Walsall)
Kenyon, C. Reeves, J Whiteley, Rt. Hon. W.
King, E. M. Reid, T. (Swindon) Wigg, Col. G. E.
Kinley, J. Rhodes, H. Wilcock, Group-Capt. C. A. B
Kirby, B. V Richards, R. Wilkes, L.
Kirkwood, D. Ridealgh, Mrs. M. Wilkins, W. A.
Lee, F. (Hulme) Roberts, Emrys (Merioneth) Willey, F. T. (Sunderland)
Lewis, A. W J. (Upton) Ross, William (Kilmarnock) Willey, O. G. (Cleveland)
Lindgren, G S. Royle, C, Williams, D. J. (Neath)
Lipton, Lt.- Col. M. Scollan, T. Williams. J. L. (Kelvingrove)
Longden, F. Scott-Elliot, W. Williams, W. R. (Heston)
McEntee, V. La T Segal, Dr. S. Williamson, T
McGovern, J. Shackleton, Wing-Corn. E. A. A Willis, E
McKay, J. (Wallsend) Sharp, Granville Wilson, J. H.
Mackay, R. W G. (Hull, N.W.) Shawcross, C. N. (Widnet) Wise, Major F. J
McLeavy, F. Silverman, J. (Erdington) Woodburn, A.
Mann, Mrs. J. Silverman, S. S. (Nelson) Woods, G. S.
Manning, Mrs. L. (Epping) Skinnard, F. W. Yates, V. F.
Mathers, G. Smith, C. (Colchester) Young, Sir R. (Newton)
Messer, F. Smith, Ellis (Stoke) Zilliacus, K.
Middleton, Mrs. L Smith, S. H. (Hull, S.W.)
Monslow, W Snow. Capt. J W. TELLERS FOR THE NOES:
Mr. Hannan and Mr. Simmons.