Lords Amendment, in page 49, line 27, at end insert:
(6) In any proceeding under this Section before the arbitration tribunal established under Part VIII of this Act the burden of proof that an undertaking is such an undertaking as is specified in the last preceding Section shall be upon the person contending that the undertaking is such an undertaking.
§ The Lords did not insist on the above Amendment but proposed the following Amendment in lieu thereof:
In page 49, line 27, at end insert:
(6) In any proceeding under this Section before the arbitration tribunal established under Part VIII of this Act the obligation of giving to the tribunal all information in his power as to the manner in which the undertaking or the relevant part thereof was carried on during the period mentioned in paragraph
(a) of Subsection one of Section thirty-nine shall rest on the person on whom the notice of acquisition has been served and provided that such obligation has been duly performed the burden of proof that the undertaking is such an undertaking as is specified in Section thirty-nine shall be placed upon the person contending that the undertaking is such an undertaking.
§ Mr. Barnes
I beg to move, "That this House doth disagree with the Lords in the said Amendment."
This issue has been argued at great length in legal terms in another place, and I propose now to put the matter before the House in the practical setting which it occupies in the Bill. It is obviously wrong that one haulier, who has kept accurate records is to be brought within this Bill, while another haulier, who has probably been inaccurate or careless, is 1223 being left outside the Bill. That is what this Amendment would ultimately bring about. Therefore, from the point of practical equity, I do not think that the House can possibly acept this Amendment.
What is the question at issue? Where the records are not complete, it becomes a matter of inference and judgment. If a haulier maintains proper and correct records there will be no difficulty at all in establishing whether he comes within the test or not. It is only when these records are absent that the difficulty arises. The arbitration tribunal under Part VIII of the Bill is, therefore, invoked for the purpose of deciding whether a haulier is within or without the test if the records are available, and in my view there is nothing unfair under procedure of this description, because an independent tribunal or an independent chairman of a tribunal, in those circumstances, I am confident, would endeavour to do the fair thing and arrive at the correct facts. But this Amendment imposes upon the Commission the onus of proof if the information is not available. The Commission cannot possibly have that information. It is only the haulier who has carried out those contracts that are in question who can possess the necessary information. That being the case, the Commission cannot possibly have the information of the past business of an individual. I do not consider that all the legal argumentation in another place can affect the facts of this situation. It is for that reason that I have found myself unable to accept the Amendment, and, whilst my hon. and learned Friend the Solicitor-General, no doubt, will be only too happy to deal with any legal points, I lay before the House the practical issue, which I believe is unanswerable.
§ 4.30 a.m.
Mr. P. Thorneyeroft
If I may say so without any disrespect, the Minister was wise to take this matter into his own hands for, having studied the legal arguments advanced by the legal advisers of the Government in various places—almost every argument has been tried, found wanting and eventually abandoned—it was perhaps better for him to put in the short practical point, rather than get into the maze of legalistic arguments and legal niceties with which the Solicitor-General tried to 1224 persuade us on the last occasion. This is the best point they have put forward so far. The point, shortly, was that one road haulier might have kept very accurate records—I assume, for the purposes of argument, a man who, on his records, was found to be a long-distance haulier—and it would operate against him that he had kept such accurate records, and someone who had kept less accurate records would conceivably get away with it. There might be some substance in that point; I would concede that. What we are concerned with here is not the amount of evidence in any particular case, but on whom the burden should rest in proving a case. That is the real point. It is true that the tribunal might find that a particular road haulier had rather inaccurate accounts but that would operate in the tribunal's mind somewhat against that particular haulier. It would operate in favour of the man who was debating the claim to take over that haulier. So that would not be altogether to his advantage. And it might not be to the advantage of the haulier to arrive before the tribunal without records at all, even with the onus of proof as laid down.
I very much hope that the learned Solicitor-General will intervene in this discussion because this is to some extent a legal point. It is a very commonsense point as well, and it is indeed a very simple one. It is that it lies upon a man who asserts a fact to prove it. That is one of the most elementary principles. That is why I find no difficulty in arguing it. The arguments advanced by the learned Solicitor-General, and in another place, have been quite extraordinary.
The first argument which I remember being advanced was that it was hardly a case of a tribunal deciding a dispute at all. This, it was said, was not a matter of two parties coming along with a dispute between them to be settled. It was something quite different. None of us could understand why it was quite different, until the Law Officers hit upon a different point and said the Commission had no option under this Clause, and had to take over every concern. But then they found that there was an option; they found that the Government, unknown to them, had introduced an option, into the Bill whether the Commission took over a concern or not. For all practical purposes that argument was abandoned.
1225 Then the learned Solicitor-General had a sort of second string to his bow, though I am afraid the Lord Chancellor did not understand or accept his point. He said that the Transport Tribunal was in a better position to inquire into the facts than the Commission. That is what he said on the last occasion. No one has ever understood quite what he meant, because, of course, it never was the job of the Transport Tribunal to go out with a lot of detectives and inquire into these matters. It was the job of the Commission to get discovery of documents and to get the cards face upwards on the table and, having done that, to establish its case before the tribunal. Perhaps the learned Solicitor-General will give us some help by elaborating this in his speech this morning.
Finally came what I think is the most despicable point made. It was suggested that these road hauliers knew all the facts and would try to conceal, distort, or even destroy, the evidence. I hope the learned Solicitor-General will take the opportunity this morning to withdraw that suggestion on behalf of the Government, because I think it was one which it would be wholly unworthy of any Government to put forward. That is the sort of argument put forward in the criminal courts, and not against a man carrying on a perfectly reputable business and being of some service to the community. It is true that there are certain classes of criminals who under the criminal code of this country have the onus of proof put upon them. As, for instance, the case cited on the last occasion—the receiver of stolen goods, who, if he is found in the possession of goods recently stolen, has the onus of proving that he did not know that they were stolen. Is it a part of the case of the Government that these road hauliers should be put into the same class as these criminals? I certainly do not think they ought to be; it is a perfectly wrong way to approach this matter.
Our case for this Amendment is a very simple one. We say that these men are in some danger of having their livelihood taken away. We say that the Government have laid down conditions under which they shall be taken away, and in due course Parliament will lay them down. Before that livelihood goes, we say that it is up to those who wish to take 1226 them over to see whether they come within the limits laid down by Parliament, and unless such a case can be made out, these men ought to be left out. That is the case. It is a very elementary legal principle. It has been a well-established way of conducting our affairs in the courts of justice in this country.
The Attorney-General shakes his head, but the right hon. and learned Gentleman has very peculiar views about the law courts and the Executive which he has not hesitated to express publicly outside this House. I cannot think of anything further removed than my conception of the legislature and the courts of justice and the sort of case which is generally put forward by the right hon. and learned Gentleman. I think it is a case which shocks and revolts most members of his own profession.
§ Mr. McAdam (Salford, North)
On a point of Order, Mr. Deputy-Speaker. Is it in order for an hon. Member to address the House with his back turned to the Chair.
§ Mr. Deputy-Speaker(Major Milner)
I think it would be courteous and for the convenience of the House if the hon. Gentleman addressed the Chair.
I trust that I am in no sense inaudible. As I was saying, the ordinary principle that the onus of proof should rest upon the man who is trying to prove his case is so well established that there is no need for it to be abandoned in this case. These men have been doing a good job of work; even the Minister would admit that. They have committed no crime. At worst, they have fallen within the category of men whom Parliament will have decided shall be taken over by the Commission, but it should fall on those taking them over to establish that they should be so taken over. If they fail to establish that fact, let these respectable and honest citizens go about their business in a normal manner.
§ Mr. H. Strauss
I hope the Government have not said their last word on this particular Amendment, because it is a most extraordinary provision on which they are attempting to insist. If I 1227 understood the right hon. Gentleman correctly—and I hope the Solicitor-General will make this clear in his reply—in resisting the Lords Amendment the Government are not content merely to leave obscure upon whom the onus will rest, but wish definitely to place it on the man to prove that his business is one which should not be taken over. In other words, the right hon. Gentleman wants the onus to be precisely the opposite of what it would be on ordinary legal principles. I would ask the House to look briefly at the scheme as laid down in these three Clauses. In Clause 39 the Commission are empowered to give a notice of acquisition if they are of opinion that certain facts are established. That opinion, as the subsequent Clause makes clear, may be a wrong opinion. Nevertheless, if they are of opinion that those facts are established, it is then-duty to give notice to take over the business. The next Clause provides for objections to the taking over to be considered by the tribunal, and it is clearly recognised that the opinion which may have been held may be a wrong opinion. I desire very much to understand what the Government's case is.—[Interruption.]—I wonder why the hon. Member makes incomprehensible remarks.
§ Mr. Strauss
If the hon. Gentleman wishes to say something, why has he not the courtesy to get up? He should try to keep quiet if he is unable to understand what is taking place in the House. I am addressing those Members of the House, who, unlike the particular hon. Member, are capable of understanding an intelligent argument. The hon. Member mistakes rudeness for reason.
An issue of fact has to be determined by the tribunal and I am anxious to understand what the Government's case is. From the Solicitor-General's speech on the last occasion and from what I understood from the right hon. Gentleman tonight, the difficulty they had in mind was the difficulty of the Commission in establishing the facts in certain cases, which facts might be better known to the owner of the business they were seeking to take over.
1228 I would invite the attention of the House to the fact that the Commission will have the benefit of the statutory assumptions laid down in Clause 41. Clause 41 says the activities of an undertakingshall be deemed to have consisted to a predominant extent of ordinary long-distance carriageif certain conditions are satisfied. These assumptions will continue to apply. The only question is whether the Commission, having the benefit of all these assumptions, shall have the ordinary burden put upon them of proving the case which the tribunal has to decide under Clause 40.
In one respect in his speech tonight, the right hon. Gentleman has not quite fully understood the effect of the Amendment which he is inviting the House to reject. He has treated it as a case where advantage might be secured by somebody who had negligently or maliciously lost or destroyed or failed to keep documents—but that is not the effect of the Lords Amendment. If the House will be good enough to look at it. The Lords Amendment says quite clearly:In any proceeding under this Section before the arbitration tribunal established under Part VIII of this Act the obligation of giving to the tribunal all information in his power as to the manner in which the undertaking or the relevant part thereof was carried on during the period mentioned…shall rest on the person on whom the notice of acquisition has been served.It speaks of all the information. That goes far beyond documentary evidence. If the documents were lost or inadequately kept it would still be incumbent on the man whose business is sought to be taken over, to give information. He can only get the benefit of the Lords Amendmentprovided that such obligation has been duly performed.It is only where he has given all the information in his power—an obligation which would still remain his though he had not got the documents—that he gets the benefit of the onus of proof being on the Commission.
§ 4.45 a.m.
§ Mr. Strauss
I am delighted that even the most foolish have grasped that essential fact. The hon. and learned Member for North Hammersmith (Mr. Pritt) is interrupting. He at least has great 1229 knowledge of our legal system. He at least knows the effect of overthrowing the ordinary system of the onus of proof—and, if it is going to be done, it should only be done for good reasons. I have asked the House to consider that there is no good reason in the present case for doing away with the ordinary onus of proof. I hope the hon. and learned Solicitor-General will address his mind, in answering this Debate, both to the change in the Lords Amendment that we are considering on this occasion from that which we considered on the last occasion, and the fact that the presumption in Clause 41 will remain whether the Lords Amendment is accepted or not, and that he will give some good reason why in these circumstances we should abandon the ordinary principles of law.
§ Mr. Nield
The Amendment which the House is asked to consider, surely, raises a most important principle. The Minister, in his opening speech, regarded the matter rather from a practical angle and I wish to address the House for a very short time on the legal and the equitable angles. Where it is proposed that the Commission shall take over the business of the operator and that operator objects on the grounds that he is exempt, the question is, must the Commission prove that their action, in taking the business over, is right, or is the burden of proof upon the operator to show that he is entitled to be exempted? The House will appreciate that where a dispute such as this arises the matter goes before the Transport Arbitration Tribunal to be established under Clause 104. It is not unimportant to notice that by a specific Clause in the Bill the tribunal is a court of record and rules for its operations may be laid down by the Lord Chancellor.
But I feel that the House would not wish to part with this Bill before deciding one way or the other who is to bear the onus in the sort of dispute to which I have referred. May I look at the legal aspect of the matter first, and quite shortly because, as certain of my hon. Friends have pointed out, it is a very elementary principle of the law that he who asserts must prove, or, to put it in another way, that the burden of proof rests upon the party who substantively asserts the affirmative of the issue. Now, as has been said, in Clause 39, before the Commission can act at all, it must be of 1230 the opinion that the business is one to be taken over, in other words, the Commission must substantively assert the affirmative of the issue, that it must be taken over. In that event, the ordinary law is that they must prove their case. That is the legal aspect of the matter, in my respectful submission. But I would add this. The chief argument against what I have said is, I think, that the information will be in the possession of the operator and might be difficult to be obtained by the Commission. But, as the hon. and learned Member for the Combined English Universities (Mr. H. Strauss) pointed out, the Lords Amendment was so drafted that it is only when full information is forthcoming from the operator that the onus of proof is put on the Commission. On the equitable side, I would urge the House to say that, where a man's business is in danger of being taken over against his will, it is right and equitable that those who seek to take it over should prove the righteousness of what they seek to do.
§ The Solicitor-General (Sir Frank Soskice)
My right hon. Friend made a very gallant attempt, which seemed to evoke the applause of the House to lift this matter above legal controversy. His attempt was not supported by hon. Gentlemen who first spoke on the Opposition benches. The hon. Member opposite, apparently, so far as I could follow, spoke in complete ignorance of the fact that we were no longer discussing the previous Amendment. He proceeded to retail, one after the other, his imperfect recollection of the arguments I sought to adduce in answering the previous Amendment. I do not know whether he had had an opportunity of looking at the Order Paper. If he finds he has time next week he will see that the Amendment we are now discussing, is not the same Amendment. The hon. and learned Gentlemen who followed were at least conscious of that. They proceeded on the well-worn path, constantly trotting out that the onus lies on the person who makes the assertion. That is, in general, true. But if they look at "Taylor on Evidence," they will find a well-recognised exception to the general rule. It is the exception of which we seek to avail ourselves for this purpose. If I might read a short passage on Taylor, they will see that it is no revolutionary doctrine on my part when I 1231 remind the House that when facts are particularly within the knowledge of one of the parties, the onus is on him to prove or disprove an assertion.In several of the exceptions above given, the legislature has adopted the principle which the Common Law also recognises and which here may be noticed as the second exception to the general rule that the burden of proof lies on the party who substantially alleges the affirmative.The exception is this: that where the subject matter of the allegation lies peculiarly within the knowledge of one of the parties that party must prove it whether it be of an. affirmative or negative character and even though there be a presumption of law in his favour.If I can regard that particular chimera as being dispelled, I will go into the actual Clause. The arguments which I put forward, and which were referred to by the hon. Member for Monmouth (Mr. P. Thorneycroft) were similar to those which prevailed in another place. The Amendment they were designed to resist has been abandoned. What has been substituted is really no better than the Amendment itself. The Amendment was objectionable we thought because it sought to place on the Commission, in circumstances in which the Commission would not have the necessary knowledge, the onus of collecting evidence. The attempt has been abandoned. But no one except the undertaker can know whether he has kept back that information. So really the new Amendment is exactly the same type, the same genus of the old, and has the same vice. The information is in the possession of the undertaker and it is easy for him to disclose the evidence if he wishes to do so. Therefore, the onus should be upon him to prove what is necessary to satisfy the two tests propounded by Clause 41. We think it is fair and reasonable and not putting an unfair burden on him because he has in his possession the evidence by which the facts can be established or contraverted. So this Amendment is no improvement and I ask the House to reject it.
The Solicitor-General is now doing exactly what the right hon. Gentleman sincerely hoped he would not do by trying to suggest that road hauliers will not produce the full evidence available to them before the Commission.
§ The Solicitor-General
That is a most. astonishing suggestion. I hope the hon. 1232 and gallant Member does not mean it. When one has a large number of road hauliers, the great majority of whom are strictly honourable men, it does not follow that there will not be some who do not come up to that high standard of conduct just as in every other walk of life. It is not a question of hauliers or anyone else, and to try to misrepresent me as having made accusations of criminal conduct is to make a complete travesty of what I have said or what any Government spokesman has said, and if there is a question of withdrawing I hope the hon. and gallant Gentleman will think right to withdraw it.
§ Mr. H. Strauss
The Solicitor-General has said that the vice of the Lords Amendment was that it would still put the onus on the Commission to prove that the man had kept something back, but surely he does not mean to say that. The Amendment says:provided that such obligation has been duly performed.Surely, that will be for the tribunal to decide and they will be at liberty to say that this obligation has not been discharged notwithstanding that no nondisclosure has been proved.
§ The Solicitor-General
Unless the Commission can show that something has been kept back then the onus rests on the Commission. Therefore we are very much back in the position as before, and for all those reasons we say we have framed this Clause on the right lines. We say in Clause 41 that two tests shall be applied. They shall be applied in regard to all the circumstances. The tests are designed to ascertain whether a haulage undertaking is predominantly engaged on long distance haulage. If those tests do not give an answer, or leave the tribunal in doubt, the tribunal has to do the best in the circumstances. In dealing with the particular problem, in giving a wide discretion, in that sense we have come nearest to doing justice between the parties, and more justice is being done than in the two Amendments. For those reasons, I ask the House to say that this second Amendment is no better than the first.
§ Colonel Gomme-Duncan
I do not like this quotation from "Taylor on Evidence," and I would like to know whether the Lord Advocate has been consulted 1233 because it is certainly contrary to the general practice of evidence in Scotland.
§ 5.0 a.m.
§ Sir D. Maxwell Fyfe
I should like to deal with the points which the Solicitor-General has been good enough to put to the House in support of the Government's position, and to start with the conclusion he drew from his remarks that the Bill as it exists is better than the Amendment before the House. I should like to give a summary of the provisions of the Bill as it exists, and in order that there may be no question about the summary being fair to the Government, may I put it in the words of the Government spokesman in another place? The Lord Chancellor said:We put it in quite deliberately because we felt this difficulty, and we said in effect"—I ask the House to note the next words—Provided that, if the tribunal have not enough information, you must do the best you can on the information you have got.That is, you must make the decision as to a man's livelihood, and, if necessary, take it away from him, without having enough information to deal with the issue in question. That is the Lord Chancellor's summary of the Bill as it stands. How any lawyer could define that as a basis for taking away a man's business and livelihood I cannot imagine, and I do not suppose for a moment that the Lord Chancellor summarised the Bill unfavourably for his own side. That is the Solicitor-General's first point, that that is an excellent Measure on which the livelihood of these people should be jeopardised. He then proceeds to support that argument by a quotation from "Taylor on Evidence" with which we are all very familiar, because it is the same quotation as the Lord Chancellor made in another place, only a few lines away from the peculiar passage I have just quoted.
§ Sir D. Maxwell Fyfe
The hon. Member must really try to control himself or pluck up enough courage to speak. I know how difficult it is for him at this hour of the morning to summon up any courage of any kind. When he does, we shall be only too glad to hear him, and a large number of my hon. Friends will 1234 be glad to answer him. I have not the least hope that that will arouse his dormant, sleepy, and obviously somnolent courage, but with that invitation to him I will leave his irrelevent interruption for the moment. When I was interrupted I was dealing with the quotation which the Solicitor-General had made. It is an argument that in certain cases the onus lies on a person in whose knowledge the facts peculiarly are. If the Solicitor-General had taken the trouble to look up the authorities for that—I know how busy he is—he would have found that it rests primarily on a judgment by Lord Ellen-borough about 1806, and the type of case to which he refers is that in which a constituent of the offence is the allegation that somebody has been doing something without a licence or permit, or something of that kind. In that class of cases the onus rests on him to show that he had taken out a permit.
But the hon. and learned Solicitor-General, of course, does not let this legal doctrine rest with Lord Ellenborough or any of his founders; but he goes on to apply it to circumstances where the Commission have set out to satisfy the tribunal, by one means or another, that the 51 per cent. is either the weight carried or the receipts of a business from journeys of over 40 miles and so outside the 25 miles radius. Applying the argument to facts of this kind is just the same as saying, "Well, in any case of slander the onus must be on the defendant, because he is the person who knows better than anyone else whether he has spoken the words." Really, to carry that argument, which was based on entirely different circumstances of very different facts, to facts where the very Statute itself lays down what is to be the matter on which the tribunal have to be satisfied, is, I respectfully say to the hon. and learned Solicitor-General, and to anyone who takes the same view, entirely outside his own quotation and baseless as a matter of law.
Now I come to the question of the practical matter. At the moment, there are certain obligations to keep records. I do not think it was unreasonable, as was at first suggested, that, with these records being available—in some cases it would be better than others—the Commission should assume the onus and the burden 1235 of proof, and then should be able to get this discovery of the records in the ordinary way. As the hon. and learned Solicitor-General has pointed out, in this Amendment we have gone far beyond that. We are prepared that the road haulier should assume a far stiffer obligation than would be the case in the ordinary way. It really is a trifle hard that whenever in these Amendments we have taken a less severe line, whenever we have attempted to make a compromise, it has never been received, and all that has been said is, "Well, of course, this is an inconsistency, and your last argument must be wrong." I do say to hon. and right hon. Gentlemen opposite that the time is very shortly coming when, if they are going to get co-operation from the other sections of the country—as they sometimes say they want—instead of merely exhibiting hatred of another class, as they have done, they will have to be ready to accept compromise when it is offered to them, or it will be much the worse for them. When we hear the next shrieks about the crisis taking the place of the complacency, hon. Gentlemen opposite will understand what I am saying with full knowledge.
With regard to the practical attitude, this Amendment is saying, first of all, that—I draw the hon. and learned Gentleman's attention to the wording—the obligation of giving to the tribunal all information in his power…6hall rest on the person on whom the notice of acquisition has been served.That is, it rests on the hauliers The haulier has to give all information in his power. I cannot see why the hon. and learned Gentleman should attempt to minimise that fact. If that is done, the burden of proof shifts. It is not merely a question of discovering information, but of giving all the information in his power. I would remind the hon. and learned Gentleman that the original argument put forward in another place did not rest on the question from "Taylor on Evidence." The hon. and learned Gentleman has obviously studied this as carefully as I have, and he will remember that the Lord Chancellor said that if he went into an exhibition of paintings, there could be no onus of proof when he distinguished between a false Velasquez and a genuine, nor when he, as a shepherd, attempted to 1236 distinguish between the sheep and the goats. Those who have read the OFFICIAL REPORTS of another place will know the issue there and that which has been before this House tonight. The simple problem is that the Commission wants to get possession of the businesses of the road hauliers, and the problem, furthermore, is, are we to do that fairly in accord with the standards of English justice and jurisprudence, or merely because those which are with the central Government are to be given an unfair advantage? That is the issue before us, and I should have thought—although heaven knows there is enough to dash my hopes—that there was only one answer from the hon. Member for Aberavon (Mr. Cove).
§ Mr. Pritt
The right hon. and learned Member for the West Derby Division of Liverpool (Sir D. Maxwell Fyfe) is responsible for my rising at this hour. I would not have done so, but he should really have known better than to have spoken as he has done. The burden of proof is important but, as many juries have stated, when one has the facts, the burden of proof ceases to be of much importance. If the haulier has all the information, and the Commission has practically none, then the burden of proof is so regulated that the haulier has to bring his information out, and the rest is comparatively simple. There will be very few cases in which there will be any real doubt about the facts and, therefore, few cases where the burden of proof will be of much importance at that stage. But we are told that the Commission is going to take a man's business away on the best information that can be obtained. Who, but a fool, ever decided any case except on the best information which could be got? I remain completely unfrightened because the Lord Chancellor has said that the best information is to be used. If the haulier has his books in proper order, we shall have the right information, and if he has not kept his books properly, the worse for him. People should take the trouble to keep their books accurately.
Then, of all things, the right hon. and learned Gentleman proceeds to take the rule, which we all know very well in the courts, where the matter is practically within the knowledge of one party. Then the burden of proof generally would lie 1237 on him. He proceeded to go back to Lord Ellenborough and suggested that that rule, which rests almost entirely on cases where the party on whom the burden of proof is thrown has done something wrong, failed to have a licence or something of that sort. Every lawyer practising within the courts knows that was the origin of the rule but it is not its limit or practical application today. It is welcomed by lawyers as a refreshing piece of common sense and applied universally. Judges have given it a peculiarly wide application in decisions recently. But suppose it was not the law; suppose the haulier was wrong and the right hon. and learned Gentleman was right. We axe legislating. One of the functions of legislation is to alter the law and we would make it the law, a very reasonable and fair-minded piece of common sense as I suggest this is.
But the right hon. and learned Gentleman was rash at ten past five this morning when he burst into synthetic thunder and said what will happen to the Labour Party if it is not supported by hon. and right hon. Gentlemen opposite. There has been comment on what' has been said on the Amendment by noble Lords. Intelligent lawyers have often found their way into the House of Lords because they are intelligent lawyers and not because their great grandfathers kept a brewery. If we accept the arguments advanced from the benches opposite, we shall be creating a burden of extra trouble. I do not wonder that the Government want to reject the Amendment.
§ Mr. Raikes
The hon. and learned Member for North Hammersmith (Mr. Pritt) has seen fit to chastise my right hon. and learned Friend. In that form of chastisement neither my right hon. and learned Friend nor any other Member on this side of the House is likely to find that there is a great deal that is wrong. My right hon. and learned Friend started by saying that, with regard to the burden of proof, as many judges had pointed out, once the full facts and information were at the disposal of the court, the burden of proof became comparatively unimportant. That I think was his statement. I hope he will interrupt me at this stage if I have misrepresented him in any way. I find it very difficult to understand why the hon. and 1238 learned Gentleman has objected to the Amendment which we are now discussing because in that Amendment, first and foremost, those important facts and information to which he refers have to be elicited before the burden of proof is shifted from the haulier to the Commission and secondly, as presumably he is aware, already in Clause 51 the undertaker himself is compelled under penalty to give information and if he does not give the information that becomes an offence. If it is an offence not to give the information, if it is also laid down in this Amendment that until that information is given the burden of proof is not changed, the very thing that the hon. and learned Gentleman asked for is obtained before the burden of proof is shifted.
If that is the best hon. Members can do in support of the Government at this early hour of the morning, heaven help them when morning has drifted on towards afternoon. I have only two other observations which I wish to make. I am glad that the learned Solicitor-General said quite definitely that he regarded the vast majority of road hauliers as being honourable and straightforward men. He put it a little more happily than it was put in the speech made by the Lord Chancellor in another place. At the same time, I think he quite unwittingly forgot one thing, for while I entirely agree with him that the records of the vast majority show these men as being honest and straight, he would no doubt agree that you might have an odd black sheep among them. Black sheep are found in some strange places in these days. If that is so, by insisting that the onus of proof is kept where he has placed it by opposing this Amendment, he does in point of fact make every one of these road hauliers either a potential criminal, or puts him in law on a level, so far as proof is concerned, with a receiver of stolen property. So, however kind he may be to the vast majority, unless the burden of proof is transferred, after the preliminaries laid down in this Amendment, to the Commission, road hauliers fighting for their livelihood are put into the most invidious position of any class of men in this country. For my part, I shall very strongly support this Amendment, and I shall realise, as I have realised more than once tonight, that the 1239 Party opposite is not a party of progress but a party of black reaction.
§ Mr. Hogg
The hon. and learned Member for North Hammersmith (Mr. Pritt), if he will forgive my saying so, always presents something of a paradox, at least to me. When I hear him arguing in the law courts, when my modest practice enables me to penetrate into those tribunals where he makes an honest living, I wonder how it can possibly be that anyone so obviously competent to present a legal argument can be the irresponsible, specious, cheap and trashy performer whom we all know. On the other hand, when I hear him in the House, I often wonder how it is that such an irresponsible cheap and trashy performer here should ever be able to earn a living in the courts.
§ Mr. Hogg
On this occasion, the hon. and learned Member did, it seemed to me, solve some of my difficulties, because we heard him arguing a point legalistically with what I can only describe as his political manner. It seemed to me that he thereby betrayed himself considerably. This is not a lawyer's point, or at any rate it ought not to be. It seems to me to be a plain matter of common equity. There are Members on the other side of the House who desire to take over the transport of this country for reasons which probably are well-known. There are hon. Members on this side of the House who do not wish it to be taken over for reasons, in which we believe no less sincerely, but I should have thought that whether we adopted one set of principles or the other, we should all of us agree that a person's livelihood should not be taken away until we were certain of the facts.
The hon. and learned Member for North Hammersmith takes a decidedly different view. He maintains that the road haulier, notwithstanding the fact that he has committed no crime, notwithstanding the fact that he has carried on his business honestly and honourably and has done nothing wrong either in law or in conscience, has to have his living taken away from him unless he can positively satisfy the test laid down by the Government. In other words, the hon. and learned Member for North Hammersmith rather crudely and to me somewhat 1240 naively admitted that he was going to take away a man's livelihood because he did not keep adequate books of accounts. That is what he said. That, of course, is a good party line for the hon. and learned Member for North Hammersmith to take—that a man has committed an injustice unless he can positively prove that no wrong ought to be committed against him. I hardly think, however, that that will be the attitude of the Government. It is certainly not the party line of the Labour Party, who I hope will dissociate themselves from the hon. and learned Member and say that they will be no parties to the taking away of a man's livelihood unless he is prepared to prove positively that the facts conform to certain principles.
§ Mr. Maclay (Montrose Burghs)
Up to now I have preserved a discreet silence. We have heard a long argument from the Government, and it has been conducted solely by members of the learned profession. I know that it is very dangerous for one who is not a member of that profession to enter into the argument, especially at this early hour of the morning. However, I want to comment on the fact that if the Government's case means anything, it ought to be applied to every similar circumstance in their other Bills. I may be wrong, for this is a difficult argument to follow, but it seems to me that the Government are arguing that the onus of proof must rest on the people who have the information available. If that is right, let them put it into practice in some other cases. What about the public local inquiries into schemes prepared by the Government about which they have acknowledged they have the information? Let the Government, when they go to a local government inquiry to prove their case, apply this principle and submit themselves to cross-examination. Will they apply this argument which they have so strongly argued here to public local inquiries? I know it is rather late to expect any compromise from the Government, but I think the case I have made is perfectly sound, and unless some hon. and learned Member opposite will tell me that I am talking nonsense and that I have completely misunderstood the matter, I will believe I am right in saying that the Government are preaching one thing in one respect and quite another in similar circumstances.
§ Question put, "That this House doth disagree with the Lords in the said Amendment."
|Division No. 363.]||AYES.||[5.28 a.m.|
|Adams, Richard (Balham)||Hughes, H D. (Wolverhampton, W.)||Reid, T. (Swindon)|
|Adams, W. T. (Hammersmith, South)||Hynd, H. (Hackney, C.)||Robens, A.|
|Allen, Scholefield (Crewe)||Irving, W. J.||Robertson, J. J. (Berwick)|
|Anderson, A. (Motherwell)||Jeger, Dr S. W. (St Pancras, S E.)||Sargood, R|
|Attewell, H. C.||Jones, D. T. (Hartlepools)||Scollan, T.|
|Austin, H. Lewis||Jones, P. Asterley (Hitchin)||Segal, Dr. S.|
|Barnes, Rt. Hon. A. J||Keenan, W.||Shackleton, E. A. A|
|Barton, C.||Kenyon, C||Sharp, Granville|
|Bechervaise, A. E.||King, E. M||Shawcross, C. N. (Widnes)|
|Binns, J||Kinley, J||Shawcross, Rt. Hn. Sir H. (St. Helens)|
|Blackburn, A. R||Lavert, S.||Silverman, J. (Erdington)|
|Blyton, W. R.||Lee, F. (Hulme)||Skeffington, A M,|
|Braddock, Mrs. E. M. (L'pl, Exch'ge)||Lewis, A. W J. (Upton)||Smith, S. H (Hull, S. W)|
|Braddock, T. (Mitcham)||Lindgren, G. S.||Snow, Capt. J. W.|
|Bramall, E. A||Lipton, Lt.-Col. M||Soskice, Maj. Sir F.|
|Buchanan, G.||Longdon, F.||Sparks, J. A.|
|Burke, W. A||Lyne, A W||Stewart, Capt. Michael (Fulham, E)|
|Champion, A J||McAdam, W.||Strauss, G. R. (Lambeth, N.)|
|Collins, V. J.||McAllister, G||Stross, Dr. B.|
|Corbet, Mrs. F. K (Camb'well, N. W)||McGhee, H G||Swingler, S.|
|Cove, W. G.||Mackay, R W. G. (Hull, N. W.)||Symonds, A. L.|
|Deer, G.||McLeavy, F.||Taylor, H. B. (Mansfield)|
|Dobbie, W.||Mann Mrs. J||Taylor, R. J. (Morpeth)|
|Dodds, N N||Mayhew, C P||Taylor, Dr. S. (Barnet)|
|Driberg, T. E. N.||Mellish, R. J.||Thomas, I. O. (Wrekin)|
|Dumpleton, C. W.||Middleton, Mrs. L.||Thomas, George (Cardiff)|
|Ede, Rt. Hon. J. C.||Mikardo, Ian||Thorneycroft, Harry (Clayton)|
|Fairhurst, F.||Mitchison, G. R.||Tiffany, S|
|Field, Captain W. J||Monslow, W||Tolley, L.|
|Foot, M. M||Morris, Lt. -Col. H. (Sheffield, C.)||Wallace, G. D. (Chislehurst)|
|Ganley, Mrs. C. S.||Morris, P. (Swansea, W.)||Wallace, H. W (Walthamstow, E)|
|Gibbins, J||Moyle, A.||Wells, P. L. (Faversham)|
|Gibson, C. W||Nally, W||Wells, W. T. (Walsall)|
|Gilzean, A.||Nichol, Mrs M E. (Bradford, N.)||West, D. G.|
|Glanville, J. E. (Consett)||Nicholls, H R (Stratford)||White, H. (Derbyshire, N. E.)|
|Greenwood, A. W. J. (Heywood)||Noel-Buxton, Lady||Whiteley, Rt. Hon. W|
|Griffiths, W D. (Moss Side)||Oliver, G. H.||Willey, F. T. (Sunderland)|
|Gunter, R. J||Orbach, M.||Willey, O. G. (Cleveland)|
|Guy, W. H.||Paling, Will T. (Dewsbury)||Williams, J. L, (Kelvingrove)|
|Hale, Leslie||Palmer, A. M. F.||Williams, W R. (Heston)|
|Hannan, W. (Maryhill)||Pargiter, G. A.||Willis. E|
|Hardy, E. A.||Parkin, B. T.||Wills, Mrs. E. A|
|Harrison, J.||Paton, J. (Norwich)||Wise, Major F. J|
|Henderson, Joseph (Ardwick)||Platts-Mills, J. F. F||Woodburn, A.|
|Herbison, Miss M.||Poole, Cecil (Lichfield)||Wyatt W.|
|Hewitson, Captain M.||Porter, E. (Warrington)||Yates, V. F.|
|Holman, P||Price, M. Philips||Younger, Hon Kenneth|
|House, G||Pritt, D. N.||Zilliacus, K.|
|Hoy, J.||Proctor, W. T.|
|Hudson, J. H. (Ealing, W.)||Pursey, Cmdr H||TELLERS FOR THE AYES:|
|Hughes, Hector (Aberdeen, N.)||Ranger, J||Mr. Pearson and Mr. Simmons|
|Assheton, Rt. Hon R||Grimston, R. V.||Poole, O. B. S. (Oswestry)|
|Baldwin, A. E.||Hare, Hon. J. H. (Woodbridge)||Raikes, H. V.|
|Beamish, Maj. T. V. H.||Hogg, Hon. Q.||Sanderson, Sir F.|
|Boles, Lt.-Col. D. C. (Wells)||Joynson-Hicks, Hon. L. W.||Spearman, A. C. M.|
|Bossom, A. C.||Law, Rt. Hon. R. K.||Strauss, H. G. (English Universites)|
|Buchan-Hepburn, P. G. T.||Legge-Bourke, Maj. E. A. H||Taylor, Vice-Adm. E. A. (P'dd'ton, S)|
|Byers, Frank||Lindsay, M. (Solihull)||Thomas, J. P. L. (Hereford)|
|Clarke, Col. R. S.||Lloyd, Selwyn (Wirral)||Thorneycroft, G. E. P. (Monmouth)|
|Clifton-Brown, Lt.-Col G||Lucas-Tooth, Sir H.||Touche, G. C|
|Conant, Maj. R. J. E.||Mackeson, Brig. H. R||Vane, W. M. F|
|Crosthwaite-Eyre, Col. O E||Maclay, Hon. J. S||Wadsworth, G|
|Darling, Sir W. Y||Marples, A. E.||Ward, Hon. G. R.|
|Digby, S. W||Marshall, D. (Bodmin)||Wheatley, Colonel M. J.|
|Dower, Lt.-Col. A V G. (Penrith)||Mellor, Sir J.||White, Sir D. (Fareham)|
|Drayson, G. B.||Morrison, Maj J. G. (Salisbury)||Williams, C. (Torquay)|
|Drewe, C||Mott-Radclyffe, Maj C E||Williams, Gerald (Tonbridge)|
|Elliot, Rt. Hon. Walter||Nield, B. (Chester)||Willoughby de Eresby, Lord|
|Fox, Sir G.||Noble, Comdr A. H. P||York, C.|
|Fraser, H. C P. (Stone)||Orr-Ewing, I. L|
|Fyfe, Rt. Hon Sir D. P M||Peto, Brig. C. H M||TELLERS FOR THE NOES:|
|Gomme-Duncan, Col. A||Pitman, I J||Commander Agnew and|
§ The House divided: Ayes, Noes, 60.