I beg to move, in page 3, line 3, after "shall", to insert:unless he proves that he had reasonable excuse for the failure.1475 This Clause imposes penalties in the event of failure to comply with the requirement that a return shall be made or an estimate shall be supplied. During the Committee stage a great deal of criticism was directed against this Clause upon the footing that it imposed absolute liability and in particular the hon. and learned Member for Brighton (Mr. Marlowe) criticised it on that score. The Clause was thoroughly canvassed and all possible arguments were deployed, and I feel that the House will not wish me to recapitulate them now. At the conclusion of the Debate in the Committee stage I undertook to consider carefully the points which have been advanced, and in particular the points advanced by the hon. and learned Member. Having reconsidered those arguments, the President of the Board of Trade has put down the Amendment which appears on the Order Paper to give effect to the points put forward by the hon. and learned Gentleman. There are other Amendments on the Order Paper which can be considered together with this one and the only difference between the wording of the Government's Amendment—
§ Mr. C. Williams
Even if they are strictly consequential I do not like the habit of the Government switching a lot of Amendments together so that there is no need to discuss them separately.
I am only paying heed to what Mr. Speaker said, that it would be for the convenience of the House that they should be discussed together. At the moment I am merely moving the Amendment which is in the name of the President of the Board of Trade, and I am content to limit myself to that point. The only contrast to which I am pointing is that the Government's Amendment places the onus upon the defendant because the onus cannot obviously be placed on the prosecution. The other Amendments on the Order Paper place the onus on the prosecution. That is the difference, and I merely want to make it plain that I could not accept the plea that the onus should be on the prosecution, because in some cases it would be absolutely impossible for the prosecution to discharge that onus owing to the nature of the charge. The Government by this Amendment have endeavoured to meet the point of view put forward by hon. Gentlemen opposite 1476 and they hope that the House will be disposed to accept it.
§ 3.0 p.m.
§ Mr. Manningham-Buller
The Solicitor-General has indeed changed the song in his heart since he was speaking on the Committee stage of this Bill. Then he maintained throughout that the right course was not to allow any person to avoid conviction for failure under this Clause by saying that he had a reasonable excuse for failure. He argued that the right thing was to have the conviction recorded against the individual, who might be blameless, and that justice should be done by the imposition of a small fine. The right hon. Gentleman has made some progress since adopting that position. We on this side of the House welcome the advance he has made. I do not think he has gone quite far enough. I think that the words he now wishes to put in put a heavier burden on an accused person than the words in the Census of Production Act, 1,906, and the words the Government are seeking to include in the Agriculture Bill to provide for exactly the same thing, failure to give statistical information. Putting in the wordsFailure without reasonable excuse,or the use of the expressionwilfully refuses or without lawful excuse neglectsare in conformity with numerous precedents. There has been no difficulty so far as I am aware in bringing guilt home to an accused person in a proper case where the evidence is made subject to those stipulations. But now the hon. and learned Gentleman is not prepared to accept that course, which has proved to work perfectly satisfactorily. He is now seeking to put the onus more on the shoulders of the accused person, and to make it even more difficult for an accused person to convince a court of his innocence. I always regard with reluctance an encroachment on the principle that a man is innocent until the contrary is proved. Here we see a clearly expressed attempt to assume, when proof has not been complete, that a man is guilty unless he can prove his innocence. I regret that the Solicitor-General has not gone so far as previous Acts, but in saying that, I welcome the great change which has taken place between the views he expressed on the Committee stage and today.
§ Mr. Boyd-Carpenter (Kingston-upon Thames)
Like my hon. and learned Friend the Member for Daventry (Mr. Manningham-Buller), I welcome the partial conversion to good principles of justice in the Solicitor-General, but wish that he had gone the whole hog. This Government seem to have an unhealthy craving for putting the onus of establishing innocence upon the defendant. It is one of the most valuable principles of our English Common Law that in general the duty is laid upon the prosecution to establish the guilt of the accused, and not of the accused to prove his innoncence. When a really compelling necessity for reversing that has existed, this House has bowed to that necessity, and permitted it to be enacted, that the accused shall establish his innocence. But, the point which the Solicitor-General did not seem to grasp is that only a compelling necessity can really justify that.
It does not seem to me that for the Solicitor-General to stand at that Box and say that it will be administratively very difficult if we do not have that provision, establishes such a compelling necessity as to justfy this House in going back on a most important principle affecting the liberty of the subject. Let us have a sense of proportion in this matter. After all, when it is still the law of this land that in cases of serious crime affecting the stability of the State, such as treason, it is still the duty of the prosecution to prove the guilt of the accused, what is the necessity for reversing that principle for such an offence as failing to fill in one of the forms of the right hon. and learned Gentleman? It may be of inconvenience to certain officials in Whitehall if their forms do not come back, but is that inconvenience so important as to justify this House giving to this offence an importance which is denied to treason and murder?
§ Mr. Gage (Belfast, South)
I wish to deal with some of the points which the Solicitor-General made when he put forward the Government's view. The whole House agrees that it is a fundamental principle of our criminal law that the onus of proof in any criminal case is upon the prosecution. The Solicitor-General's reason for the Government's attitude was that it would be inconvenient to the Departments concerned to prove, in particular cases, that there had been delay, or there had been some element in the case 1478 which made it desirable that the defendant should be prosecuted. That is done every day by prosecutors and by those who desire to obtain convictions in this type of case. All that need be done, if a firm does not render the return within the proper time, is for the Department concerned to write to them and ask for their return, and why they have not rendered it. If no answer comes from the firm, or if the answer is made, "We are not going to render your return," the case is proved. All the prosecution has to do is to go into court, and say that the return has not been rendered, and that no answer has been received.
There, by ordinary process of criminal law, is a prima facie case. There is no difficulty about it. If, on the other hand, a firm writes, and says, "We cannot do this because of sickness" or for some other reason, the country is saved a certain amount of money, because if, on investigation, that is found to be true, there will be no prosecution. If, on investigation, which can be done very easily, it is found to be untrue, a prosecution lies. I do not think that the Solicitor-General will save any Department anything by shifting the onus in this way. If the onus is left where it should be, and where it always has been, in English criminal law, on the prosecution, it can be discharged perfectly easily by the method which I have described.
§ Mr. Marlowe
My hon. Friend the Member for South Belfast (Mr. Gage) has considerably shortened what I had intended to say on this point. I entirely agree with the point that there is a deplorable tendency in the present Government to throw the onus of proving innocence on to the accused person. The other point about which I should like to be sure arises from the fact that the way in which this Amendment has been dealt with is virtually a compromise. The Solicitor- General resisted an Amendment which was intended to achieve this purpose, but he was good enough to say he would look at the matter again. I am worried about the argument that he then put forward. He said:we felt that it would lead to very considerable difficulty if, when returns had been requested, it became open to the person who was asked to furnish the returns to submit, in the event of a summons being issued against him, that he had for one reason or another an excuse for not doing so."—[OFFICIAL REPORT, Standing Committee C; c. 67–8.]1479 What is the Government's approach to this sort of thing? In effect, these words mean that they feel that it would be a bad thing if somebody was brought before a court and they were allowed to pat forward a defence. It is deplorable that the view should be taken by a Government—" We think it administratively convenient to bring a person before a court and we want to introduce a system which will prevent him putting forward a defence." That is what these words mean. I hope that now the Government have retracted, to some extent, and allowed a person to establish a reasonable excuse, we may have an assurance that this sort of conduct will not be repeated in the future.
Amendment agreed to.
§ Mr. Royle (Salford. West)
I beg to move, in page 3, line 4, to leave out "fifty," and to insert "twenty."
I hope that the spirit of conciliation which seems to have arisen in the House during the last hour might now be extended by my right hon. and learned Friend to one of his own supporters. I want to draw attention to the penalty Clause where in the case of prosecution a defendant may be fined up to£50 for a first offence. I am not so much concerned about large firms, manufacturers in particular, as about the distribution side of industry. I have in mind the type of small trader who today is engaged in the distribution of many of our essential commodities. Many of them are engaged in one-man businesses, particularly in the case of food distribution. They lead a harassed life dealing with customers' ration books, emergency ration cards, weekly returns, points, and that kind of thing. Many of them are not in a position to pay a staff of clerks to look after these matters.
I am well aware that there has been a tendency since 1939 to increase penalties in reference to all manner of offences. In wartime, many of these increases were justified in matters such as black market building, elicit slaughter of animals, black market food supplies, customs evasion, and currency irregularities. All those things justified the imposition of very heavy penalties. The penalty must be a real deterrent, but I feel that it borders on viciousness to impose a penalty of£50 for a first offence under this Bill for the 1480 failure to fill up a form, when the man is very harassed. These people are not criminals but harassed traders trying to do a good job of work for their customers and for the State in general. Amongst the many forms with which they deal, it may be that they may forget this one.
I know that it may be argued that these are maximum penalties. From my own experience I know that benches of magistrates can vary very much in their outlook. There may be cases where county magistrates view much more seriously a technical motoring offence than a serious food prosecution, whereas the magistrates in an urban area might take exactly the opposite point of view. The trader is in a real danger in this respect. I appeal to my right hon. and learned Friend to have another look at this and, if possible, to accept my Amendment.
§ 3.15 p.m.
§ Mr. W. Fletcher
I beg to second the Amendment.
The constituencies of the hon. Member for West Salford (Mr. Royle) and mine are neighbouring constituencies and our minds seem to be running on very close lines this afternoon. I support his plea for the small trader dealing with distributive matters, not only inside this country but also from the export point of view. There are many small businesses established on a basis of personal connection between one man in this country and people overseas. They are over-burdened in the export drive, which we would all wish to support in every way possible, by the enormous number of papers which they have to fill in. It would be a bad thing for the distributive trades if at this particular moment more people were drawn away from the productive side, but if these people are given an extra burden that will inevitably be the effect.
Many of them are extremely hard working. A great many are women, the widows or mothers of ex-Servicemen who used to support them. They have an extremely worrying and difficult time with forms. In many cases they have a tendency—I admit it is a wrong one—to put these things aside saying to themselves they will consult someone later. It will add to their worries to know that a heavy penalty is hanging over their heads. I hope the President of the Board of Trade will see fit to accept this Amendment.
§ Mr. Erroll
I support this Amendment. I also come from a constituency which is practically a neighbouring one to that of the hon. Member for West Salfora (Mr. Royle). It is more likely that the small businesses will default in the supply of information within the stipulated time than the large businesses. Over a period of years those large businesses have accumulated the necessary staff and have built up the statistical methods to enable them to provide the information fairly readily. It is the small harassed businesses which may fail and may therefore be punishable. We should therefore urge on the President of the Board of Trade the importance of a small fine appropriate to a small business. It may be argued that a small fine of£20 maximum is unlikely to intimidate the large and prosperous businesses, but a large and prosperous business is unlikely to default in a matter of this sort. Small businesses, though loyal and as willing as anybody else to try to comply with Government requirements, are likely to find difficulty through matters beyond their control, and it is so easy for a Government Department to go for the small man rather than the large organisations which are in any case less likely to default. I hope that the President of the Board of Trade will accept this reasonable Amendment so that the penal nature of the Clause will be ameliorated.
It cannot really be said that the proposed penalty is excessive. It is not a fixed penalty; it is only the maximum. Hon. Members on both sides of the House have urged that in a particular case there might be circumstances of hardship. Those circumstances would of course be taken into account in the event of a conviction being registered and would be a reason for imposing a very small penalty. The maximum penalty would only be imposed where the worst class of offence had been committed. In view of the Amendment accepted by the House with regard to reasonable excuse, the position is different from what it was when the Clause was unamended. Then it referred to a conviction registered in the event of the failure to make a return. Now no conviction can be registered unless, not only does the defendant not make a return, but he had no reasonable excuse for not making a return. It is therefore appropriate that the maximum penalty which could be imposed should be larger than when the Clause was unamended.
1482 When comparing similar examples, this penalty of£50 is not out of the ordinary. It is the penalty which is provided in Clause 78 of the Agriculture Bill, it appears in similar Clauses in the Cotton (Centralised Buying) Bill and in the Industrial Organisation Bill, and there are many examples of the Clause which we are discussing. It is really a narrow issue whether this penalty can be shown to be too much. It is the maximum penalty which can be imposed even in the case of a person who refuses deliberately to make a return. For a lesser case, if there is any reasonable excuse and the degree of culpability is less, the penalty is less, and any questions of hardship would automatically be taken into account, considered as mitigating circumstances, and would result in a much lesser penalty than For those reasons it is impossible to accept the Amendment.
§ Mr. C. Williams
I support this Amendment because I recognise that the hon. Member for West Salford (Mr. Royle) moved it from his personal knowledge of how, when a maximum of this sort is put in, the whole of the penalties are apt to be graded on the maximum. I have rarely known a Law Officer who, when talking about penalties, did not always go out of his way to say that the House apparently did not know that this was a maximum penalty. The House knows that as well as he does, and that is no argument. He also said that this is in the Cotton (Centralised Buying) Bill and the Agriculture Bill. That is no argument why it should be here. The penalties are already much too high in the other Bills, and if the hon. and learned Gentleman had said that, he would have been helpful. The fact remains that when you lay down a maximum of this kind, you tend to put up the whole scale of penalties. That is why I appeal to the Government to try to accept the broadminded wishes of one of their own back benchers. I noticed when he was speaking the obvious backing he had in fact from the faces of almost every hon. Member around him, and that they would support him in the Lobby if it were not for other facts which I will not mention here.
I will mention two sections of the community who will be affected very largely. In the first place the people who have the greatest difficulty in collecting information with which to complete these 1483 form are the smallholders, and they will come in under this in the same way as the small shopkeeper and the small businessman. For that reason I appeal to the right hon. and learned Gentleman who, if he would allow his humanity an occasional outlet, would accept our wishes at once. The other section is the fishing industry, which is also liable, under certain conditions, to come under this Bill. Fishermen have an exceptionally difficult life, and I would argue from the general West Country point of view that there are other industries not equipped with a high level machinery of crafts, and so on, which are almost Government Departments in themselves. I would appeal to the Government to keep off big penalties in connection with the small industries. The collecting of statistics from many industries, including the co-operative industry, is doing a great deal of harm to many well-deserving and good people. I hope the Government will accept the wishes of their own supporters, and that the right hon. and learned Gentleman, who does not always treat the House with a great deal of respect, on this occasion will agree to give way to the wiser and better feelings of the House.
§ Mr. Marlowe
There was a certain lack of logic in the answer of the Solicitor-General. It is not necessary to repeat what has been said in relation to this being a maximum penalty, because it is per-
§ fectly obvious, but he knows that benches of magistrates, in assessing a penalty, are very much inclined to fix penalties according to the maximum. Where the maximum is£50, if the case is not a bad one, they probably impose a penalty of£25 The only other point I wish to make is that the Solicitor-General said—in fact, it was his only argument—that the Government must have this sort of power to deal with the obdurate offender—the person who deliberately refuses to give the information required. If he reads the Clause a little further, he will see that he can deal with such a person in quite an effective way, because if a man continues to refuse to give the information he can be fined£10 a day for every day he refuses. Therefore, the Government have all the powers they need for imposing a very heavy penalty in the case of a persistent offender, instead of imposing a large penalty on the sort of person who offends merely by an oversight or who is really a technical offender.
§ Question put, "That the word 'fifty' stand part of the Bill."
§ The House divided: Ayes, 155; Noes, 46.1485
|Division No. 144.]||AYES.||[3.28 p.m.|
|Adams, W T. (Hammersmith, South)||Comyns, Dr. L.||Hamilton, Lieut.-Col. R|
|Allen, A. C. (Bosworth)||Cooper, Wing-Comdr. G.||Hannan, W. (Maryhill)|
|Allen, Scholefield (Crewe)||Corbet, Mrs. F. K. (Camb'well, N.W.)||Hardman, D. R.|
|Attewell, H. C.||Corvedale, Viscount||Harrison, J.|
|Austin, H. Lewis||Crawley, A.||Hastings, Dr. Somerville|
|Awbery, S. S||Crippe, Rt. Hon. Sir S.||Henderson, A. (Kingswinford)|
|Ayles, W. H||Davies, Edward (Burslem)||Herbison, Miss M.|
|Barstow, P. G.||Davies, Ernest (Enfield)||Hicks, G.|
|Barton, C.||Davies, Harold (Leek)||Hobson, C. R.|
|Battley, J. R.||Delargy, H. J||Holman, P.|
|Beehervalse, A. E.||Diamond, J.||House, G.|
|Belcher, J. W.||Dobbie, W.||Hughes, Hector (Aberdeen, N.)|
|Benson, G.||Dodds, N. N.||Hughes, H. D. (Wolverh'pton, W.)|
|Beswick, F.||Driberg, T. E. N.||Hynd, H. (Hackney, C.)|
|Bevan, Rt. Hon. A. (Ebbw Vale)||Dugdale, J. (W. Bromwich)||Janner, B.|
|Bing, G. H. C.||Dumpleton, C. W.||Jay, D. P. T.|
|Binns, J.||Edelman, M.||Jeger, G. (Winchester)|
|Bowles, F. C. (Nuneaton)||Evans, E. (Lowestoft)||Jones, D. T. (Hartlepools)|
|Braddock, T. (Mitcham)||Field, Capt. W. J.||Jones, J. H. (Bolton)|
|Brown, T. J. (Ince)||Follick, M.||Kinghorn, Sqn.-Ldr. E.|
|Buchanan, G.||Foot, M. M.||Kinley, J.|
|Burden, T. W.||Foster, W. (Wigan)||Lawson, Rt. Hon. J. J.|
|Callaghan, James||Gaitskell, H. T. N.||Lee, Miss J. (Cannock)|
|Castle, Mrs. B. A||Ganley, Mrs. C. S.||Lipton, Lt.-Col. M.|
|Champion, A. J.||Gibson, C. W.||Longden, F.|
|Chater, D.||Gordon-Walker, P. C.||Lyne, A. W.|
|Chetwynd, G. R.||Greenwood, Rt. Hon. A. (Wakefield)||McKay, J. (Wallsend)|
|Collick, P.||Greenwood, A. W. J. (Heywood)||Macpherson, T. (Romford)|
|Collindridge, F.||Hale, Leslie||Manning, C. (Camberwell, N.)|
|Collins, V. J.||Hall, W. G.||Manning, Mrs. L. (Epping)|
|Marquand, H. A.||Randall, H. E.||Thomas, I. O. (Wrekin)|
|Medland, H. M.||Ranger, J.||Thomas, George (Cardiff)|
|Mellish, R J.||Royle, C.||Turner-Samuels, M.|
|Middleton, Mrs. L||Sargood, R.||Vernon, Maj. W. F.|
|Mitchison, G. R.||Scott-Elliot, W.||Viant, S. P.|
|Montague, F.||Silverman, J. (Erdington)||Walkden, E.|
|Morley, R.||Simmons, C. J.||Walker, G. H.|
|Mulvey, A.||Skeffington, A. M||Wallace, G. D. (Chislehurst)|
|Murray, J. D.||Skinnard, F. W.||Warbey, W. N.|
|Naylor, T. E.||Smith, C. (Colchester)||Weitzman, D|
|Neal, H. (Claycross)||Smith, Ellis (Stoke)||Wells, W. T. (Walsall)|
|Nicholls, H. R. (Stratford)||Smith, S. H. (Hull, S.W.)||Whiteley, Rt. Hon. W.|
|O'Brien, T.||Snow, Capt. J. W.||Wilcock, Group-Capt. C. A. B|
|Oldfield, W. H.||Soskice, Maj. Sir F.||Wilkins, W. A.|
|Oliver, G. H.||Sparks, J. A.||Willey, F. T. (Sunderland)|
|Palmer, A. M. F.||Stephen, C.||Willey, O. G. (Cleveland)|
|Paton, Mrs. F. (Rushcliffe)||Stross, Dr. B.||Williams, D. J. (Neath)|
|Paton, J. (Norwich)||Stubbs, A. E.||Williamson, T.|
|Piratin, P.||Symonds, A. L.||Wyatt, W.|
|Platts-Mills, J. F. E||Taylor, H. B. (Mansfield)||Younger, Hon. Kenneth|
|Proctor, W. T.||Taylor, R. J. (Morpeth)|
|Pursey, Cmdr. H||Thomas, D. E. (Aberdare)||TELLERS FOR THE AYES:|
|Mr. Michael Stewart and Mr. Daines.|
|Baldwin, A. E.||Gage, C.||Poole, O B. S. (Oswestry)|
|Baxter, A. B.||Gammans, L. D.||Price-White, Lt.-Col. D.|
|Beamish, Maj. T. V. H||Harris, H. Wilson||Reed, Sir S. (Aylesbury)|
|Bower, N.||Howard, Hon. A.||Robertson, Sir D. (Streatham)|
|Boyd-Carpenter, J. A.||Hudson, Rt. Hon. R. S. (Southport)||Salter, Rt. Hon. Sir J. A.|
|Buchan-Hepburn, P. G. T.||Keeling, E. H.||Strauss, H. G. (English Universities)|
|Challen, C.||Law, Rt. Hon. R. K.||Stuart, Rt. Hon. J. (Moray)|
|Clifton-Brown, Lt.-Col. G||Lindsay, M. (Solihull)||Taylor, C. S. (Eastbourne)|
|Conant, Maj. R. J. E.||Macpherson, Maj. N. (Dumfries)||Thorp, Lt.-Col. R. A. F.|
|Crosthwaite-Eyre, Col. O. E.||Manningham-Buller, R. E.||Touche, G. C.|
|Crowder, Capt. John E.||Marlowe, A. A. H.||Wheatley, Colonel M. J.|
|De la Bère, R.||Marsden, Capt. A.||Williams, C. (Torquay)|
|Drewe, C.||Maude, J. C.||Williams, Gerald (Tonbridge)|
|Erroll, F. J.||Neven-Spence, Sir B.||Young, Sir A. S. L. (Partick)|
|Fletcher, W. (Bury)||Nicholson, G.|
|Fyfe, Rt. Hon. Sir D. P. M||Noble, Comdr. A. H. P.||TELLERS FOR THE NOES:|
|Mr. Studholme and Major Ramsay.|
§ Mr. W. Fletcher
On a point of Order. Is it in Order for an hon. Member to move a Motion or an Amendment and then to go into the Lobby to vote against it?
§ Mr. C. Williams
Further to that point of Order. Although it may be in Order, would there not be general confusion if that kind of habit always went on?
I beg to move, in page 3, line 4, to leave out from "pounds," to the end of line 8, and to insert:or, in the case of a second or subsequent offence to a fine not exceeding two hundred pounds.(2) If the failure in respect of which a person is convicted under the last foregoing subsection is continued after the conviction he shall be guilty of a further offence and may on summary conviction thereof be punished accordingly."
As the Clause is at present worded, hon. Members will see, in the event of a failure to make a return continually the offender becomes liable to a fine not exceeding£10 for every day the failure continues. It 1486 was felt on reconsideration that that was not altogether a satisfactory state of affairs. After all, nobody can tell exactly when the prosecution is going to be launched, or when it is going to be heard; and it was felt that it was not really fair to the person charged that, if he continued his failure after conviction, his liability to further punishment should depend on such fortuitous circumstances as the date on which the prosecution was heard. It was felt that it was not fair to him, if the prosecution were heard three months later, that his fine should be more than if it were heard only two months or one month later. Therefore, we sought to remedy this.
The way we seek to do it is this, to say that in the case of a second offence—it is, indeed, the ordinary provision in all other penal statutes, or the great majority of penal statutes—there should be another maximum penalty. Obviously, the maximum penalty for every subsequent offence should be greater than that for the first offence. That is a matter of common sense. What we say is that in the subsequent offence the maximum penalty should not exceed£200.
1487 The second part of the Amendment really deals with what is a drafting matter. The Clause at present states that:If the offence in respect of which he is so convicted is continued after the conviction.In point of fact the offence may not continue. The failure my continue. But the offence in respect of which the prosecution has been launched has, in fact, been wiped out. What we are now suggesting, in the second part of the Amendment, is that if the failure is continued it becomes another offence. The matter in the first part of the Amendment is a matter of substance and principle, and we seek to remedy what we feel may be an injustice through delay in the bringing or hearing of the prosecution.
§ Mr. C. Williams
On a point of Order. I do not know whether the next Opposition Amendment on the Order Paper, in the name of my right hon. Friend the Member for Southport (Mr. R. S. Hudson), is being selected. It is the Amendment to page 3, line 8, at the end, to insert:Provided that no person shall be convicted under this Subsection if he establishes that the information to be contained in the estimate or return he was required to furnish was substantially contained in an estimate or return furnished under this Act to another competent authority.I rise only to ask that that Amendment may be protected, if it is being selected. It is not being selected?
§ Mr. Manningham-Buller
The Solicitor-General is now moving an Amendment to an Amendment that he moved on the Committee stage of this Bill, and which was agreed to without discussion, amending the original draft of this Bill. I think the House is entitled to proceed with some caution in this matter, and see where we have got to. In the Census of Production Act, 1906, the penalties for failure to make the return, to fill up the form, or for making false returns, or refusing to answer, was£10 for the first offence, and a fine not exceeding£5 for each day during which the offence continued.
I know that one must make some allowances for the inflationary effect of the action of the Chancellor of the Exchequer, and I know that there are precedents in Bills introduced and passed by this Government for substantial increases in fines, but what is the position if this Amendment is agreed to? A man will be 1488 liable to a fine of£50 upon conviction, and then, having been convicted, as I read the Clause, if he is convicted again of that failure, he is liable to a fine not exceeding£200 Under the Bill as it. came down from the Committee, containing the Amendment which had been moved into it by the learned Solicitor-General, the penalty for the second offence was a fine not exceeding£10—
§ Mr. Manningham-Buller
Yes,£10 per day, and, as I understand the Amendment, the fine of£10 per day is now altered to a liability of£200 per day.
§ Mr. Manningham-Buller
Let me persue my argument further, as I think I am right on this point:or, in the case of a second or subsequent offence, to a fine not exceeding£200.Let us assume that the than is convicted on Monday and fined£50. That is the first offence. Now, I read the Subsection:If the failure in respect of which the person is convicted is continued after conviction.That is to say, if he does not make a return on Tuesday, after he has been convicted for not making it on the Monday, he will commit a further offence.
§ Mr. Manningham-Buller
I am obliged to the hon. and learned Member for Gloucester (Mr. Turner-Samuels) for his intervention, but I do not think he has followed the argument which I am putting to the House. The man is convicted on Monday for failing to furnish the estimate required. If it is not returned on the Tuesday, he has, in fact, on the Tuesday of the same week, committed a further and subsequent offence. If it is not done by the Wednesday, he has committed a further offence.
§ Mr. Turner-Samuels
A fine does not take effect until the conviction. Not to comply with the requirements of a Statute is an offence, it is true, but only on conviction does the fine begin to operate.
§ Mr. Manningham-Buller
I am much obliged to the hon. and learned Gentleman, but I was aware, during my early days as a law student, that fines could: not be imposed by the police in the absence of a conviction.
§ Mr. Turner-Samuels
The difference between what is now proposed and what is in the text of the Bill is that there is no longer to be a liability of£10 per day.
I am as capable as the hon. and learned Gentleman of reading the Bill, but I still feel that the arguments I have put forward have not been shown by the hon. and learned Gentleman to be incorrect. I do not want to weary the House by repeating them, but the hon. and learned Gentleman has broken the thread of the argument. An offence committed before the Monday of one week is followed by conviction on that Monday. The offence is again committed by failure to make return on the Tuesday, and a prosecution is brought, or could be brought, in respect of the non-compliance on the Tuesday. When that prosecution comes before the court, the man would be convicted of a second offence, and then he would be liable to a fine not exceeding£200. I hope I have made it clear to the hon. and learned Gentleman now.
I agree that there is no time, and that the alteration made by this Amendment is that the£10 does not accumulate de die in diem, but at the same time it does mean that if after one conviction a second prosecution is brought because the return is not made within a week of the first conviction the maximum penalty will then be£200. I am sure that is right, and the hon. and learned Gentleman the Solicitor-General has really given no explanation of the reasons why he wants to impose this, in our view, fantastically large penalty for a second offence, because that is what he is doing. We on this side of the House did not dissent, in Committee, from his original proposal that there should be an accumulation of£10 a day, but the hon. and learned Gentleman has now sought to amend that in such a way, although that may not have been his object, as to render a man liable on a second conviction for a repetition of the first failure to a maximum penalty of£200. I think it is wrong, and unless it can be made quite clear to me that I am in error in my construction of this Clause, I really feel that even at this late stage we shall reluctantly have to divide against imposing such a heavy possible fine on the small traders, fishermen and smallholders who were particularly referred to in the course 1490 of the discussion on the previous Amendment.
§ Sir S. Cripps
May I just explain one matter in regard to what the hon. and learned Gentleman has said? In regard to the£10 accumulating daily, it was thought that there might be three weeks or a month before a further prosecution took place; in that case the fine would not be a maximum of£200, but might be£300, at£10 a day, or more. Further, the matter would be left entirely at large, and if there was a delay in the prosecution the amount might rise to£600,£1,200 or even£2,000, depending upon how many days elapsed before the prosecution. That Seemed to us to be an unsatisfactory position for people to be left in, and we therefore took a mean period of about three weeks, which would be likely to be the sort of period involved, and stabilised the maximum at that point. That I think is a more reasonable and sensible way than having this quite uncertain figure depending on the speed with which a prosecution is carried through, by delaying the prosecution, it would be possible to increase the maximum fine.
§ Mr. Manningham-Buller
Surely not. Suppose there has been a failure for a fortnight and then the return is made. It may be that the individual concerned has made a regular practice of making his return a fortnight late, and consequently there is a desire to stop him doing it again by prosecuting him. Then, of course, the maximum fine would be controlled not by the date of the institution of the prosecution, but by the date on which he made his return.
§ Sir S. Cripps
He would have his fortnight between the first starting of the prosecution for the first offence and the conviction. He could very easily do that, or send his return within the same period before the conviction for the first fine of It is only if, subsequently, he was not prepared to send it in that further action would be taken. We want to give a reasonable time for him to react; it would probably be three weeks, or about£10 a day for 20 days.
§ Sir A. Salter
I do not contend that the right hon. Gentleman's proposed Amendment will make this Clause worse than it would otherwise be, but I think the House will agree that, with or without this Amendment, this penalty is ex- 1491 tremely severe, and maybe crushing, on a small business. It is treating this offence, a failure to satisfy Whitehall's desire for information, as one of the serious crimes of our country, comparing, in its penalty, for example, rather unfavourably with the kind of penalties often imposed for what we have hitherto regarded as serious crimes such as stealing, or being guilty of cruelty to children, and so on. I hope that the House will realise that this is a very heavy penalty in relation to the standards of earlier legislation. It is rather significant and sinister that, when the hon. and learned Solicitor-General was searching for a precedent for penalties, he confined himself either to Bills which are not yet law, or to quite recent Acts passed by the present Government. This clearly means, as my hon. and learned Friend has just shown by referring to the Act of 1906. that the Government are putting up both absolutely and relatively the standards of penalties for this kind of offence.
What is the justification for doing that? I can only think of one. I am reminded of the kind of discussions I had as an undergraduate, as to the purpose of punishment, whether it was reformative, punitive, or deterrent. When we argued that it was really deterrent, we were forced to the logical conclusion that the greater the incentive to sin, the greater must be the penalty to prevent it. The classical instance was that if a mother stole bread for her starving child, it was an offence which was so strongly motived that, obviously, the penalty must be greater than in the case of a man who stole without any temptation of that kind. It is true that under the crushing burden of the present-day demand for information, and with no prospect of any kind of relief or reduction, such as the very reasonable proposal which I put forward earlier in the Debate would have given, there may be an overwhelming temptation—much greater than in the past—for industries to fail in their duties under this Bill. That seems to me to be the only justification for so screwing up the standard of penalty, and one which throws a very significant and sinister light on the general purposes and machinery of this Bill as a whole.
§ Mr. Boyd-Carpenter
I was very interested, as I am sure the House was, 1492 in the intervention of the right hon. and learned Gentleman the President of the Board of Trade, during which he explained the method by which this Amendment had been arrived at. It may well be that there are plenty of precedents for this particular device, although I must confess that they do not immediately leap to my mind. It would, no doubt, be of great assistance to the House in considering this matter if it were to be reminded of precedents in other Measures for the adoption of this technique. If we could be told these precedents, it would not only put the matter into its proper perspective, but would also enable us to gather whether the other matters dealt with in the same way are matters of similar gravity, or lack of gravity, to this one. Therefore, I appeal, either to the right hon. and learned Gentleman or to the hon. and learned Solicitor-General, to remind the House of the precedents for the use of what the President of the Board of Trade rightly called, this stabilisation procedure.
The only other observation I desire to make is that, undoubtedly, in any case in which the second prosecution is launched in under 20 days, the net effect of the adoption of this Amendment is to increase the maximum penalty. I wish to support what has been so well said by the Senior Burgess for the Oxford University (Sir A. Salter) on this Amendment, and what was so well said on a previous Amendment by the hon. Member for West Salford (Mr. Royle), against this tendency to increase penalties. As the hon. Member for West Salford said, the most likely people to offend against the provisions of this Clause are the small people who have not the technical and clerical assistance, or, in some cases, the knowledge, which enables them to cope with the requirements of Government Departments as easily as can the big firms.
The position is that if they are in for a second offence they may be penalised to the extent of£200. That is a very heavy penalty, and it is really no use the Solicitor-General repeating the argument that it is a maximum, because it is undoubtedly a fact that whatever figure is selected under one of these Clauses is a maximum and the particular figure selected is an indication to the courts of the gravity with which the Government regards a particular offence. I hope that 1493 the right hon. Gentleman will reconsider this matter and it may well be that the procedure of this House will give him an opportunity before any irrecoverable step is taken to reconsider this matter. If he does so I hope he will consider these points from both sides of the House against an increase in these penalties, and, secondly, I hope he will meet my thirst for information on the point for the precedents for the adoption of this very ingenious but for me unfamiliar technique.
§ Mr. Henry Strauss (Combined English Universities)
I only wish to put one point. The words which the right hon. Gentleman seeks to insert are an improvement on the wording of the Clause as it stands. There is still one defect remaining which I hope the right hon. and learned Gentleman will consider. After a first conviction it seems to me that a man ought to have a reasonable time to make a return and should not immediately be even technically guilty of a second offence. He has not had time to put the matter right. The right hon. and learned Gentleman said that he might have had time in the interval between the serving of the original summons and the prosecution, but at that time he might have bona fide but quite erroneously considered that he had a good defence. While the present Amendment is an improvement on the Clause as it stands he ought, I think, to provide expressly that the man should have a reasonable time in which to make a return before he becomes guilty of a second offence.
§ Mr. Marlowe
I think that the explanation which the right hon. and learned Gentleman gave us was a moderate and reasonable one if it achieves the object he had in mind, which is to limit the fine. I ask him to look at this again, because I think if he really studies the words he is not achieving what he has in mind. As I understand it the position is that, firstly, there is the failure to make a return, and if a person is convicted in respect of that failure, from the moment he leaves the court he is continuing in his failure and he is committing an offence within one minute of his conviction. If that is not the point which the right hon. and learned Gentleman wants to achieve, I think he should substitute some word like "repeated" instead of "continued" and that would be a quite different way of dealing with it. That would meet the 1494 point of a man having been asked to make a return, having been convicted and then having been asked again.
It being Four o'clock, the Debate stood adjourned. Debate to be resumed upon Monday next.