SEIZURE OF FOOD ORDER (Hansard, 22 April 1948)

§ Sir John Mellor (Sutton Coldfield)
I beg to move: That an humble address be presented to His Majesty, praying that the Order, dated 8th April, 1948, entitled the Seizure of Food Order, 1948 (S.I., 1948, No. 724), a copy of which was presented on 9th April, be annulled. This order enables the Ministry of Food to seize articles of food in respect of which it is suspected that an offence has been committed. In order to indicate that this is really a very important order and its wide scope, I will draw the attention of the House to the definition of food as contained in the order: 'Food' includes anything used by man for food or for drink, other than water, any substance which ordinarily enters into or is used in the composition, manufacture or preparation of human food, any flavouring matter or condiment, the seeds of any cereal or vegetable, forage, and cattle, pigs, sheep and poultry. 'Forage' includes all feedingstuffs (whether natural, artificial, dried or undried) for animals (including birds). If an officer of the Ministry of Food suspects that an offence has been committed in respect of any particular article of food, he is empowered by this order to seize 2135 that article of food. It is provided that seizure may be either physical or constructive; constructive in the sense that seizure may be accompanied by the attachment of a notice to the article of food and the service of a copy of the notice upon the person who has custody of that article.
When the food has been seized the Minister or a person authorised by the Minister may direct that that food shall be sold. If the matter is in the hands of a court, and if the owner of the food is convicted, then the court has jurisdiction over the proceeds of sale of the food. If, on the other hand, there has been no prosecution, or if there has been a prosecution and the owner has been acquitted, then the order requires that the proceeds of sale should be paid to the owner. This is all very well so far, but in the order the proceeds of sale are defined as: the proceeds of the sale, less any expenses incurred by or on behalf of the Minister in connection with the seizure and sale… The position, therefore, is that the innocent owner of food which has been seized has to pay the Ministry's expenses of seizure and sale, which seems to us to be grossly unjust. The hon. Lady did not dispute, by her answers at Question time yesterday, that if the order were fuly enforced by the Ministry in this respect, the result would be extremely unjust to an innocent owner. I am sure the hon. Lady will stop me if I misrepresent her in any way. The point she made yesterday was that in practice the Ministry do not enforce their powers and do not deduct the costs of seizure and sale from the proceeds when the proceeds are paid to an owner who has been innocent of any offence. I think she will agree that that is a correct representation of the line she took yesterday.
If we accept that, and assume that she has been fully informed, and that that is a correct description of the conduct of the Ministry, we arrive at this position. It may be that no particular owner has been deprived by the Ministry of his due, and that he has received the gross proceeds free from any deduction in respect of the Ministry's expenses. But if that is the case the provision in this order authorising the Ministry to deduct from the proceeds of sale their expenses in connection with seizure and sale is totally unnecessary. I think the Parliamentary Secretary will 2136 agree that this provision is totally unnecessary.
It seems to us a most astonishing thing that the provision has been put in this order, because, on 26th November, 1946, my hon. Friends and I, in moving the annulment of the order which this order has superseded, protested in strong terms against the inclusion of this provision. That is what the Debate turned on, and it was the whole gravamen of our attack that those words, if taken advantage of by the Ministry, would create grave injustice, and, if not taken advantage of, were totally unnecessary. Yet, when on 8th April this further order was made which revoked the order then under discussion, to our astonishment we discovered that those words were repeated in the new order.
It seems intolerable that the Ministry should go on taking powers which they do not even pretend they will need to exercise and which they admit it would be grossly unjust to exercise. I feel that we ought to have an explanation of why these words have been included in the new order. It is the duty of this House, in dealing with delegated legislation, to see that Ministries do not get more powers than they need. When, on their own confession, they have asked for powers beyond what they require, they ought to be willing to agree that those powers should be immediately revoked. Following what the Parliamentary Secretary said in the House yesterday, she ought to advise the House to accept this Motion.
There is another point on which I wish to object to this order. It seems to me that the powers which the Ministry have taken go beyond those conferred by the regulations under which this order has been made. I gave the hon. Lady notice that I intended to raise this point, and I am glad to see the Solicitor-General present; no doubt he will be prepared to deal with it. The regulations under which this order was made are Regulations 55 and 55AB. Those regulations authorise the making of an order which will include provision for the return of the proceeds of sale to an owner. But there is no reference whatever to any deduction from those proceeds for the Ministry's expenses of seizure and sale, or for any other purpose.
Therefore, this Order, containing such a provision, has gone right outside the 2137 power conferred by the regulations. In this respect, both Regulations 55 and 55AB contain exactly the same provisions. Not only have the Ministry of Food taken wider powers than they need, but they have taken wider powers than the regulations authorise. Both on the merits and on the question of law the House should be invited to annul this Order tonight. So that this matter can be disposed of in the most convenient way, I hope the Parliamentary Secretary will advise the House to support this Motion.

§ Mr. Boyd-Carpenter (Kingston-upon-Thames)
I beg to second the Motion.
There are two points which arise on this Motion. First, there is the question of law, to which my hon. Friend the Member for Sutton Coldfield (Sir J. Mellor) referred in his closing sentences. He has made the point so clearly that there is no need for me to add anything to it, and as I know he apprised the Government in advance of his intention to raise this matter, I have no doubt that the Solicitor-General will in due course favour the House with his comments upon it. The point is simply whether it is intra vires for the Ministry, under this regulation, to make an order providing for deduction from the products of sale which, under the regulation, must be returned to the owner of the goods, of certain expenses, or not. It is a straight-forward—

§ Mr. Boyd-Carpenter
I am glad that a state of affairs which I do not think was wholly accidental has been brought to a conclusion and that the time not only of the House, but also of both the Parliamentary Secretary to the Ministry of Food and the Solicitor-General, has not been unnecessarily wasted.
I think the Solicitor-General apprehends the point about the validity of the Order and I do not think I need trouble the House further on that point, but the point about the merits which has been raised is, I think, of some importance and is simply this. We are concerned with people who, having been brought to trial, have been acquitted on a charge of an offence against the order or people who have not been 2138 brought to trial at all, and as the order stands such persons are liable to suffer financial loss. They are liable to have their goods taken from them and sold, and to have handed over in return not the full value but the full value less not only the Ministry's costs of sale but, what is far worse, less the Ministry's cost of seizing their goods.
They are, innocent people, liable to pay the costs which the Ministry have incurred in a case in which the Ministry have not been able to succeed in obtaining a conviction. It is with these people—who by the law of England are presumed to be innocent people—that we are concerned, and we are not concerned at all under this order with people who have been convicted of any offence. Convicted persons suffer the penalties imposed by the courts, and we are not concerned with their misfortunes.
The Parliamentary Secretary to the Ministry of Food appreciates the injustice of this. The hon. Baronet referred a few moments ago to the fact that yesterday at Question time the hon. Lady made it quite clear that she had no intention of exercising the rights given her by this order and had not exercised them for some time. Perhaps, to get it clearly on record, I may refer to Column 1815 of the OFFICIAL REPORT of yesterday, in which the hon. Lady said: The circler empowers the Crown to retain expenses incurred in connection with the sale, but, in practice, we do not now exercise this power if the owner is acquitted. In reply to a further supplementary question, she went on to say: In all cases where there is no prosecution we do not deduct expenses."—[OFFICIAL REPORT, list April, 1948; Vol. 449, C. 1815, 1816.] That being so, it is a little bit difficult to understand why, as recently as the beginning of this month, the Ministry of Food should introduce an order giving them power to do something which is so unjust that they themselves, in the words of the hon. Lady, have no intention of enforcing it. It does really seem that there is some lack of coherence between the legal and drafting Department of the Ministry of Food and those sections of that Department which are responsible for policy. Otherwise, it is difficult to apprehend why an order should have been produced giving power to do what the hon. Lady herself regards as unjustifiable. In these 2139 circumstances, the matter having been brought to light, it seems right to ask the House to accept this Motion. There could be no practical inconvenience in having a new order, embodying all the necessary parts of the present order, introduced tomorrow. Indeed, if the Ministry of Food had acted with some celerity it could already have been in preparation. It could leave out the objectionable part, and leave in the essential parts which, on both sides of the House, it is agreed must remain. It is in those circumstances, believing that we are not only supporting elementary justice but following the declared policy of the Parliamentary Secretary, that I have seconded the Motion.

The Parliamentary Secretary to the Ministry of Food (Dr. Edith Summer-skill)
I am sure that hon. Members anxious to speak will understand that I have risen now only because I think I can make a helpful suggestion. I have answered so many Prayers in this House that I have learned not to speak too soon in the Debates on them, and, in this instance, I should not intervene at this stage if I did not feel that I may be able to save the time of the House and to save unnecessary repetition by speaking at this juncture.
The hon. Member for Sutton Coldfield (Sir J. Mellor) went into some detail, and I think the House fully apprehends the meaning of this order and the purpose of it. I see on the benches opposite many hon. Gentlemen who took part in the Debate on the Prayer in November, 1946. The hon. Member for Sutton Coldfield was quite right when he said that, in general, the objection to the order was due to the fact that many Members felt that an acquitted man might be dealt with rather harshly. I invite hon. Members to read the answer I made then, when I pledged myself to investigate every case. I assured hon. Members opposite that there would be no case of injustice. I want to say that I have honoured that pledge. I can come here tonight and say that during the last year no acquitted man was charged the expenses of the seizure and the sale of the seized goods.
Now we have made another order. It was quite clear to me yesterday, from the tone of the supplementary questions, that 2140 hon. Members opposite were not satisfied because we had still not amended that part which would, if interpreted wrongly, perhaps deal rather harshly with the acquitted man. The reason for that is simply that it is now the established practice of my Department not to deduct-expenses except in cases where a conviction has been obtained. I justify that because, as I have already told the House, I can prove that, during the last year, there has been no case of injustice. Indeed, it is significant that every hon. Member who has spoken on this subject, in the Debate in 1946 and in this Debate—although I admit that there have been only two who have spoken tonight—could not illustrate his arguments by producing one example of an acquitted man who had been dealt with by my Department in what might be regarded as an unfair fashion. The reason is that the number of men acquitted is very small, and it is quite easy to give the most detailed attention to their cases. In 1946 it was 1 per cent., and in 1947 5 per cent. Therefore, in view of our record last year, since the last Debate, we felt that it was quite unnecessary for us to make another Amendment of the order.
I would remind hon. Members opposite that this Order was orginally introduced in 1942 by the Coalition Government, and there was no criticism of its administration between 1942 and 1946. Yet we are now told that we are perpetrating an injustice by introducing this order without further amendment. I am prefacing in this way the remarks I want to make later on, and the concession I am prepared to make, because I feel that I should defend my Department.
It may be said that although I come to this Box now, and can prove that no man has suffered injustice, I cannot guarantee that my successors will deal with the matter in the same way. I, and every Minister who sits on this Bench, know that it is inevitable that there will be successors. But I think hon. Members will agree that, whatever the complexion of future Governments, this particular Order will be administered in the same way. Furthermore, Ministers may come and Ministers may go, but the Department will go on, and the men in the Department who are dealing with this matter now will outlive this Order. After all, this Order will lapse—not say 2141 when, but in a few years' time or less—and these men, who are exercising the greatest care to see that no one is dealt with harshly, will still be there.
Having said that, and having defended my Department and our action in this matter, I want to say I recognise that it is important not only to dispense justice, but to make it transparently clear that justice is being done. If hon. Members opposite think we can do that by amending this Order, then I am prepared to amend it so as to limit the power to deduct expenses to cases in which a conviction has been obtained. That will, I think, meet the point made by hon. Members opposite.
Now I come to the wider issues raised by the hon. Member for Sutton Coldfield. I must thank him for giving me notice of this question. While I recognise that his legal knowledge is superior to any that I possess, I do not think he has read the Orders as a Minister or somebody representing a Government Department might have done. He will agree that regulations are framed in. such a manner that they must be read as a whole if they are to be interpreted properly. Paragraph (1F) of Regulation 55, from which he quoted, begins: The powers conferred by paragraph (1) of this Regulation shall extend to the making of an Order— Turning to paragraph (1, e) we find that power is there given to make Orders of a very varied nature, including incidental and supplementary matters by which the competent authority thinks it expedient for the purposes of the order to provide. It is clear that paragraph (1) and paragraph (1F) read together, permit my Department to make an order for the seizure of food and to act in incidental and supplementary matters necessary to make the order a practical proposition. I think the House would agree with that. The hon. Gentleman might ask what guides us in interpreting this regulation in this way and determining our powers? I would say quite simply that what guides us is common sense. Do hon. Gentlemen opposite want my Department to be out of pocket in dealing with convicted black marketeers? I have already agreed to amend the order so that there is no chance of an innocent man suffering. But if hon. Gentlemen insist on omitting these 2142 words, it would mean that the public would be called upon to subsidise the expenses of convicted black marketeers.

§ Sir J. Mellor
If the hon. lady will look at page 73, paragraph (1F) (b), she will see that provision is made to direct that the whole or part of the proceeds of sale shall be applied in satisfaction of any fine, so that the black marketeer would gain nothing if convicted. My point only concerns the owner who has not been convicted.

§ Dr. Summerskill
No, I think the amendment I propose makes the position of a man who has not been convicted quite clear.

§ Sir J. Mellor
I quite appreciate that when the new order is made on the lines indicated by the hon. Lady that may well be so and it will no longer be ultra vires but my point is that this present order is ultra vires for the reasons I have described.

Dr. Sammerskill
The hon. Member is dividing the discussion into two parts. He accepts what I propose. If we do that, he has nothing more to say. But if I had not come here to make this concession, he would then have had a further argument, that the order was ultra vires. I want to answer that point as well. Certainly, the innocent man would be in the same position and would be dealt with rather harshly. So far as the convicted man is concerned, if this is agreed to be ultra vires, we have not the power to deduct from the sum which has been received for the seized food the expenses of seizure. It would mean, in fact, that we were subsidising the black marketeer out of the pockets of the public. That is my justification for my Department taking these powers and interpreting the regulations this way.

§ Mr. Boyd-Carpenter
I do not think the hon. Lady quite apprehends my hon. Friend's point. Whether it be a good thing or a bad thing, as a strict matter of law the order is ultra vires It may well be that it is regrettable, but that does not affect the argument that it is ultra vires.

§ Dr. Summerskill
I am endeavouring to prove that, in our opinion, this is not ultra vires. I am sure I have made quite clear how we interpret the regulations. 2143 We are of opinion that under Regulation 55, paragraph (1, e) we have the power to frame an order in this way. The only other point that I have to make it this: the hon. Member for. Sutton Coldfield has raised the whole question as to what are the proceeds of sale. If I accept that, for the sake of argument only, we were not to deduct the cost of seizure—and I repeat, it is for the sake of argument only —surely he would not think that we were not entitled to deduct the costs of sale? The whole thing hinges on what are the costs of sale, or, rather, the proceeds of sale. Supposing that we seize some food, as a Ministry, and say to an agent outside the Ministry, "Will you sell that food?" The auctioneer sends us a sum of money and says, "These are the proceeds of sale after I have deducted my expenses." Would the hon. Baronet expect us, as a Ministry, to add to that sum what was equivalent to the amount which the auctioneer had deducted, and send it to the black marketeer?

§ Sir J. Mellor
Where the owner of the food is innocent of an offence he should get the full value without any deduction at all. He did not want his stuff to be seized and sold, and the hon. Lady will, I hope, in making a hew order, to revoke this order, ensure that this will be the case. Where the food is sold, the innocent owner should get full value without any deduction whatever.

§ Dr. Summerskill
There is no question at all of the acquitted man being dealt with harshly, but this is an interesting point which the hon. Baronet has put, and I just wanted to develop that. Apart from the concession I am going to make, he claims that this order is ultra vires, and I was inviting him to comment on this point. I ask him to define "proceeds of sale." I may tell him that I have taken advice on this matter, and it means "proceeds after the sale" and we are quite right in deducting that from the convicted man.

§ Sir J. Mellor
Whether the hon. Lady is right or wrong as to her interpretation of "proceeds of sale" as being after a deduction of expenses connected with the sale, I submit that the "proceeds of sale" could not possibly be interpreted as being after deducting expenses of seizure. That is a totally different matter.

§ Dr. Summerskill
The hon. Member is separating the two. So far as seizure is concerned, I am quite prepared to look at this again, and while we are amending this order to ensure that the acquitted man shall not be treated unfairly by this Government, or any succeeding Government, I promise him that I will look at this point about seizure. But so far as costs of sale are concerned, the position is quite clear.

§ Mr. Baldwin (Leominster)
What is the position with regard to foodstuffs of a perishable nature which have suffered because of seizure? Is any loss which may occur during the time that the food is seized made up to the person who suffers loss?

§ Dr. Summerskill
We should return to the person acquitted the wholesale price of these goods.

§ Mr. Lennox-Boyd (Mid-Bedford)
Further to that, could I ask the hon. Lady if coupons or points would be provided to a person in respect of food which had been improperly seized?

§ Dr. Summerskill
I have not the information. Perhaps the hon. Member would give notice of that question.

§ Sir Ian Fraser (Lonsdale)
Is the hon. Lady going to bring in a new order tomorrow? If so, could there be an assurance from the Government that no sale would be made unless it should be necessary because otherwise the food would go, bad? Can we have an assurance that sales will not be made unless for that reason? Secondly, will the Ministry replace the food whenever possible instead of paying money compensation? There is a point here of real substance. It is not enough, if a person's food has been taken from him and he is then found innocent, to be paid the wholesale price for it. It may be that he cannot get similar food again, and that he is dependent upon such food for obtaining his living, and would have made a profit upon it. Therefore, he loses, unless the food is replaced. Can we have an undertaking that the food will be sold only when this is necessary, and that it will be replaced when that is physically possible?

§ Dr. Summerskill
I can assure the hon Member that we only sell when the food is highly perishable, and that if it can be kept in a storehouse we do keep it 2145 there. But there is difficulty about promising that the food will be replaced. We will, however, consider it.

§ Mr. West (Pontypool)
Is it right that people who have bought food legitimately at retail prices should only receive wholesale prices as compensation?

§ Dr. Summerskill
We will look at it again to see if there is hardship in these cases.

§ Sir J. Mellor
The hon. Lady has met us in a very frank manner which gives us satisfaction. She has said that she will amend the order in the way we have asked. But we hate to deal now with the method. Of course, she cannot amend a statutory order. It has to be revoked and afresh order made. In these circumstances, I think she will agree that the most convenient way is for her to agree to the Prayer, and that the Motion should he tarried for the annulment of this order. Will the hon. Lady agree to that course?

§ Dr. Summerskill
I would remind the hon. Member that if the order is annulled it lapses forthwith. We must have an order operating, and perhaps he will accept my assurance that we shall set the machine in motion and get a new order as soon as possible.

§ Sir J. Mellor
I do not want to be difficult. Action on that could be taken tomorrow. It is only a question of leaving out about ten words of the order which would take effect from the first thing tomorrow. Therefore, may I point out that if this Motion is carried, it merely means that no further proceedings could be taken under this order after the date of the Resolution, and His Majesty may by Order in Council revoke the instrument, so that in fact it would only mean that nothing further could be done under this order. It would require an Order in Council in any case to revoke the instrument. Therefore, I cannot see what objection the hon. Lady can have to this Motion tonight.

§ Dr. Summerskill
My objection is this: the hon. Member says that only ten words are involved and the matter could be dealt with tomorrow. But to amend an order in that way requires some consideration. I have already said that we will proceed with this, and it is a little difficult to do all this tomorrow, which is Friday. I want to see that a number of 2146 people discuss this carefully. As the hon. Member says, the instrument lapses immediately it is annulled and we want to have these powers for a few days.

§ Sir J. Mellor
On the assumption that the hon. Lady will take prompt steps to deal with this matter, I beg to ask leave to withdraw the Motion.