§ 3.50 p.m.
§ Mr. Turton (Thirsk and Malton)
I beg to move, in page 1, line at the end, to insert:Provided that this Section shall not apply to a person carrying on such business who has only one pump, and if there is no other such business in the same parish.This Amendment deals with the way the Bill affects the single pump installation, which is causing a great deal of disquiet throughout the country. I have asked the Minister how many of these single-pump installations there are, and he has replied that he does not know. The Russell Vick Committee said there were a large number of single-pump installations which, with very few exceptions, were operated by petrol retailers. Unless some system such as this Amendment proposes is adopted, these men will suffer great hardship. They are not the type of men who in the past have been, or in the future are likely to be, involved in black market transactions. They are small people dealing with the essential needs of the rural parishes. They have to have commercial petrol in order that farmers can obtain petrol for their tractors. Equally, they must have private petrol in order that those who are using their cars for shopping, marketing and pleasure should have some petrol.
I was alarmed when I heard the Minister talk about these single-pump installations in his Second Reading speech. He agreed that the restriction would be a disadvantage to them and continued:I will not deny it for one moment, but it is fair to point out that these single-pump proprietors throughout the war and up to now have had a substantial advantage over the pre-war position because of the existence of Pool petrol. Prior to the war there were no less than 30 different brands of petrol, and if a man had only one pump he could stock only one brand. Now there will be, in effect, two brands of petrol, of which a single pump garage will be able to stock one."—[OFFICIAL REPORT, 3rd May, 1948; Vol. 450, c. 927.]Surely the Minister himself is aware of the injustice of those remarks? If a man had only one out of 30 brands before the 1744 war, by stocking that brand he was not prevented from supplying anyone who needed petrol. They could equally take any other petrol instead of R.O.P., National Benzol or, any of the 30 brands. Under this Bill the Minister is putting the small business man into the position where, if he supplies the wrong kind of car with the wrong kind of petrol, he will be subject to a fine of £500 and, in effect, will lose his business. The suggestion in this Amendment is that in the limited number of cases where in a village there is only one pump, the proprietor shall be allowed to supply red or white petrol.
Is that a great deal to ask? I have in my hand a letter sent out by the Minister to all garage proprietors in the country. It provides that the lucky holder of Z coupons—those who have trade plates—will be able to have their coupons exchanged either for red or white petrol. Surely if an exception is made for trade plate holders there is a good reason to say that, in this limited number of cases of the small man in rural areas, the one man petrol business should be treated in exactly the same way, so that if someone comes for petrol for his tractors the proprietor can supply him equally with white petrol or with red petrol, whichever he stocks.
I understand the Minister is thinking of some method by which these men may be allowed to give private petrol against commercial coupons. I hope the Minister will make rather more clear the remarks which he made on this point in his Second Reading speech. It is rather difficult to see how he intends to carry out that suggestion. Is the single pump garage to have to put up a sign "Private petrol," and then be allowed to supply commercial users with that petrol? If that were the Minister's intention—and it is a great advance on what he said a few minutes earlier in his speech—I should have thought it would be better if these people did not have to advertise private or commercial petrol, because if they put up the sign "Private petrol" it will mean that many of the local farmers will think it is an offence to buy petrol for their tractors from these pumps.
While I welcome that concession—if indeed it is a concession—I think it should go further, so that some of the actions which create offences under this Clause should not apply to the single-pump 1745 garage. The first I have in mind is Subsection (2, a), as a result of which the proprietor has to have all his pumps marked "Commercial" if they contain commercial petrol. What will happen now? If he is allowed, by the concession which has been hinted at, to supply private petrol to commercial users, will he then have committed an offence under Subsection (2, a)? That is probably a matter for the Attorney-General to answer, rather than the Minister, but I hope the Minister will make this concession clear, because it certainly was not clear from his speech, nor is it clear from the instructions which he sent round to the motor retailers.
I think the easiest way out of this difficulty is to exempt these few cases quite clearly from the provisions of this Subsection. If I am wrong in that and the Minister's concession is adequate, I would ask that that concession be put in the Bill so that all can see it. It is no good saying, as he did in his speech and in the instructions, that people will be able to have this concession in certain circumstances. We want to know to whom it will apply, and I submit that the words I used in my Amendment would cover the cases in point. This Amendment is not intended to defeat the object of the Bill. It is to make this Bill work in rural areas where, unless some concession like this is granted, the Bill will be a harsh and unjust burden on many of these men. Many of the men who set up one-pump businesses in small rural parishes are ex-Service men from the last war who, on demobilisation, returned to their villages and bought this one pump. It is very hard that, two years after demobilisation, they should in effect be put out of business by this Bill.
§ 4.0 p.m.
§ Colonel Gomme-Duncan (Perth and Kinross)
I support the Amendment. I wonder whether the Minister has envisaged the situation which will arise if some concession is not made in the rural districts of Scotland. It is possible that if this matter is left as at present, not only will a large number of single-pump men go out of business—and there are a considerable number of such men in Scotland—but if someone goes to a pump which has not the supply of petrol which he requires, he may have to travel 20 to 40 miles before 1746 he comes to another pump. Is that what is intended by the Minister? It seems most unreasonable that there should be that particular prejudice against rural areas.
There is another point concerning the Scottish hotel keeper in outlying districts. Many hotels in the rural districts of Scotland have a single pump, and it is recognised as part of their business. The right hon. Gentleman's provisions as to petrol generally have hit these Scottish rural hotel businesses desperately hard already. If he wishes confirmation of that, I hope that he will himself consult that distinguished Socialist Mr. Thomas Johnston, who will give him all the facts and figures. I ask the Minister to consider very carefully this further burden to those already put on the rural hotel keper in Scotland, because it is a little more than he can bear. It is not reasonable to expect that a man should go 20 to 40 miles on his tractor or in his motorcar in order to get petrol for the purposes for which he is entitled to have petrol. I hope that the Minister will have something to say about this, because it is creating a desperately serious situation in the scattered areas in the North and West of Scotland.
§ Lord Willoughby de Eresby (Rutland and Stamford)
I wish to raise one point which I think is not covered by the Amendment. That is the case of the private estate or any business which has one pump for the use of their employees and vehicles employed in their business or on the estate. The ordinary agricultural estate may be supplying tractors as well as the agent's or farm manager's car, and unless some concession is given to put commercial petrol in his car, he may have to go many miles to get the proper petrol he requires, which will be an unnecessary waste of petrol.
§ Mr. Baldwin (Leominster)
I wish to support the Amendment as the representative of another part of this country, an area bordering on the remote hills of Wales, where the same difficulties will arise as in Scotland. It will be extremely difficult for these men if there is only one pump to serve a certain district. I hope that the Minister will be able to think of a way in which they will be able to carry on business, and so help the needs of the district which they serve. There are many districts in my constituency where one 1747 could go for 20 miles and find only one single-pump garage. That means great hardship to people in the area.
§ The Minister of Fuel and Power (Mr. Gaitskell)
I fully appreciate the difficulty of this problem. It was, I think, one of the greatest difficulties presented by the proposal of the Russell Vick Committee. The Amendment is quite unacceptable, because if we were to insert the words in the Bill, it would drive a coach and four through its provisions. What the Amendment would imply is that wherever in a particular parish there was only one garage with one pump, even if there were a lot of garages with more than one pump, that garage would be free to sell red or yellow petrol to whomever it wished. There is a certain difficulty in understanding exactly how the Amendment would work. If there is only one, pump, the garage proprietor is bound to sell from that pump one type of petrol. I understand that the idea behind the Amendment is to exempt such garages. I think that that is to ride completely through the provisions of the Bill. That would apply not only in rural areas but throughout the whole of London. If one found that one particular parish had, say, only one garage with one pump, it would be completely free. I am sure that hon. Members opposite will realise that that is no solution to this difficult problem.
I have been taken to task for saying in my Second Reading speech that those proprietors of single-pump garages were in a better position during the war than they had been before, when there were many different brands of petrol. I was only quoting the view of the Motor Agents Association, who certainly agree that that is the case. If we take the view that no one minds what sort of petrol he has, even when there are 30 different brands of petrol, I fully agree that it would not make any difference. But a number of motorists were careful before the war about the type of petrol which they bought, and that was bound to affect the single pump man.
I would like to explain more fully, in response to the invitation of hon. Members, what we have in mind. I am satisfied that the only possible way of dealing with this problem is to make it practicable in certain instances—and I will say 1748 more clearly what I would do in a moment—for these single-pump garages to supply commercial vehicles with white or yellow petrol. There is no difficulty about that. The only difficulty at the moment which would arise is that in collecting commercial coupons from these vehicles such garages would not be able to replace the white petrol in their tanks. We can take care of that by granting them licences. But I want to add this: it may be necessary—I am not committing myself at the moment—to put some restriction on the sale of white petrol against red coupons which we shall do under the Motor Fuel Order if it looks as if that will lead to a serious loop-hole. It makes not the slightest difference so far as these people are concerned, because we shall have powers to licence and can exempt them in any case. I want to give the Committee warning in case, later on, we decide to do that.
That is not the idea with regard to all the 7,000 single-pump garages. I have never refused to give that figure. The figure I could not give in reply to the hon. Member for Thirsk and Mahon (Mr. Turton) was the number of single-pump garages where there was only one in the same parish. I have not that information. I understand that there are 7,000 altogether. It would be quite out of the question to license every one of them, because, as the right hon. Member for Southport (Mr. R. S. Hudson) pointed out during the Second Reading Debate, there obviously would be considerable danger that, as soon as a garage is in this position, private motorists would come with red coupons and exchange them for ordinary petrol, and this would cut right across the Bill and the things which we must stop.
If we have to provide licences not too frequently, it should be possible to keep an eye on the turnover of those garages given licences to make sure there was no abuse of that kind. There certainly is a risk. The right hon. Gentleman was perfectly right. As soon as it becomes known that such a garage is in a position to replace its white petrol against red coupons, of course anyone with red coupons will tend to go there. The only way to check that is by asking the Petroleum Board to watch deliveries fairly closely, so as to see that they are not rising in a phenomenal way. If they 1749 were, it would, of course, suggest that all was not well.
We have in mind—and this I think will reassure one or two hon. Members who have spoken—that in the case where a single-pump garage is, say, 10 miles from another one, we would be prepared to grant a licence. I would prefer not to tie myself down completely at the moment. We have sought the advice of the Petroleum Board, who have been very helpful, and they do not take the view that it will be quite such a serious problem as some hon. Members suggest. There is the possibility where we have, say, two single-pump garages in neighbouring villages, where one chooses one type of petrol or the other type of petrol, that between them they may have more or less the same turnover as before. I agree that in the case of one only it is a different matter, and that there may be difficulties in making arrangements of that sort.
We will try to do what we can to save any hardship that there may be. As I told the House on Second Reading, we have been unable to find any sort of compensation scheme. We discussed that with the Motor Agents' Association, and they agreed with us that they do not think that there is any such scheme that is practicable, but I am satisfied that with the licensing provisions that I have indicated, we shall be able to deal with all the more serious cases. I hope that on that understanding we may now proceed.
§ Mr. R. S. Hudson (Southport)
There is one point arising out of what the right hon. Gentleman has said. He gave instances of two garages in comparatively near villages, one dealing with white and the other with red petrol, and suggested that the total turnover of the two would not be different. I agree. But that does not solve the individual difficulty of the man who lives in one village or the other. In both those cases, he will have to use considerably more petrol in going to get his supplies of petrol. I hope that the right hon. Gentleman will tell his regional petroleum officers that in cases such as that, where a man who has white petrol may have to go 10 miles to fill his tank, he will take that into account when considering his application for supplementary coupons.
§ Mr. Bowles (Nuneaton)
I remember that when I was a boy, and before there was a liability to take out motor licences 1750 at all, pumps had not been invented and petrol was supplied in cans. It has been admitted in every speech that has been made today that the amount of business done by the parish single petrol pump garage is not very big. I should like to suggest to my right hon. Friend that these small out of the way garages with one pump should have delivered to them when the bulk petrol is put into the pump's tank an adequate amount of red or white petrol in cans, whichever is the one he wants not to go into his pump, and by that he may get over the difficulty which the hon. Member for Thirsk and Malton (Mr. Turton) made very clear. I do not sec any objection to the delivery to these small businesses of petrol of the kind they want in cans.
§ Viscount Hinchingbrooke (Dorset, Southern)
While I think that there might be something in what the hon. Member for Nuneaton (Mr. Bowles) has said, I was disappointed with the Minister's reply to my hon. Friend the Member for Thirsk and Malton (Mr. Turton). I hoped that he was about to acknowledge the fact that there were a number of these single-pump stations serving a very large area, and that he was going to put forward the proposal of an additional pump in some cases. He talked about making it possible for these garages to collect commercial coupons against white petrol. But will that not lead to a black market in the immediate neighbourhood? Surely it must do so. The farmer or the local commercial man will surrender commercial coupons and get white petrol in large quantities. White petrol will be a very valuable commodity and I should have thought that there was a great danger in the rural areas of creating a considerable black market. I think that the suggestion of the hon. Member for Nuneaton might be better, or that the Minister should take active steps to see that a second pump is introduced into these rural areas.
§ Sir Hugh Lucas-Tooth (Hendon, South)
I think that the words "such business" which occur a second time in the Amendment refer to the business of supplying petrol and not the business of supplying petrol from one pump. I would not support the Amendment as indicated in its wider sense, but I do not think that the hon. Member who moved it intended in that way.
§ Mr. Turton
The word "and" has crept in, and if that comes out I think that the Amendment will make sense.
§ 4.15 p.m.
§ Sir H. Lucas-Tooth
This Amendment is directed more particularly to the benefit of those who are obliged to go to a single pump, rather than being designed from the point of view of those carrying on the business of supplying petrol. I do not say that we should not consider both cases, but that is not the principal purpose of this Amendment. There was one specific instance referred to by the noble Lord the Member for Rutland and Stamford (Lord Willoughby de Eresby)—that is, the case of the private pump. That is not specifically within the Amendment, but it is an important class of case. There may be on an estate—or it may occur in certain industrial premises—a single private pump supplying considerable quantities to those using petrol on the estate or in the works. I think from what the right hon. Gentleman said, that his intention is that in those cases the pumps should always be filled with white petrol, and that it should be available to all users. This is a matter of considerable importance to a number of individuals, and I think the Government should state their intention more specifically.
§ Mr. Turton
I was very disappointed at the Minister's attitude. I may not have drafted this Amendment as well as the Ministry have drafted theirs, but I think that if the word "and" is taken out it is reasonably drafted for a private Member. The important thing is that the Minister's concession really comes down to nothing. A farmer who is probably living four miles from any village and ten miles from the nearest mallet town, might find himself having a 28-mile turn-round for petrol. It is not fair to the inhabitants of the rural areas. Again, the right hon. Gentleman suggests that where there are two neighbouring villages the proprietor of the pump in one will choose white and the other red. He clearly does not know the amount of business done in rural areas. No garage proprietor in a rural area, with the present standard ration, or the shopping ration, would choose a private pump installation rather than a commercial installation. He has to think of the agricultural need, and that is far greater than the private demand. I hope the Minister will reconsider his whole attitude, which 1752 shows a complete ignorance of rural conditions, and I believe will make this Bill unpopular and harsh to the people in the rural areas.
§ Brigadier Peto (Barnstaple)
The difficulty I see is this. I am thinking of a particular rural area in a remote part of North Devon, where the petrol pump is part of the village smithy. There is no garage in the place, and I imagine there is no place where you could store, say, 1,000 gallons of petrol in safety. Would the Minister be prepared to provide some form of storage—for example a pit—which need not be expensive, but should not have to be paid for by the man who runs a single pump, so that he can store private petrol in cans?
§ Mr. Bowles
I do not know whether he would have to store as much as 1,000 gallons. The whole case rests on the smallness of the business. I remember that the R.A.F. had a large store of five or six gallon cans made of much thicker material than the ordinary petrol can. These would be fireproof, and not many of them would be needed for the smaller garages.
§ Brigadier Peto
I was thinking more of the usual petrol cans, and not about the jerrycan. They would be quite suitable. I do not know whether the Minister can tell us if they exist in sufficient quantities.
§ Mr. Gaitskell
We have been into the point about cans, and the difficulty is that there is a very great shortage. The Petroleum Board discontinued the use of petrol cans in 1940, when they had 1,400,000. They have now 100,000—barely enough to meet their requirements for deliveries of special types of petrol. Incidentally, they also dismantled the can filling machinery at the depots, and they did not replace the vehicles which they used for delivering cans. They only have the normal tank vehicles now, and these would be quite unsuitable for this purpose. I do not think we could contemplate, to deal with this problem, the construction of the large number of cans that would be required, at least 500,000 according to the Petroleum Board. There is the further point, that there is difficulty about storage. We might get over that, but there are fairly stringent regulations made by local authorities. Finally, there is the financial difficulty—there is an additional 1753 cost of about 3½d. a gallon in delivery in cans. That could be passed on to the consumer by the single pump garages, but I do not think they would be keen to do it, because it might affect their business.
If I did not view the Amendment from the point of view of the local consumers, but rather from that of the garage pro prietors, the Committee would agree, I think, that that was because of the way it was moved. The hon. Member had primarily in mind the position of the garage proprietors. But I would like to say this about local consumers. I do feel that some hon. Members are making an awful lot of this question of distance. For an ordinary car, 10 miles represents about half or a third of a gallon. To get their petrol 10 miles from their home does not seem to me a particularly difficult thing for people to do, without having to get extra petrol to do it. People should be able to make arrangements quite easily to pick up their petrol when they need it in these rural areas, where they are accustomed to go a long distance for their supplies.
We cannot take too many risks in this business. The noble Lord suggested, quite properly, that this scheme would give rise to a serious black market. It would be most dangerous, I admit, if we kept no control over the single-pump garages and did not limit the licences. That is why we must limit the licences to where they are genuinely necessary in the interests of the local consumers. On the point about the estate pumps, I do not think that unless there were special circumstances we should contemplate licensing them. What I should assume is that they would probably require commercial petrol, the greater part probably being needed for agricultural purposes; and in so far as they wanted to obtain white petrol they could make arrangements to get it from the next neighbouring garage. If however, there were great distances involved, we could adopt the same procedure and grant them licences to enable them to replace their white petrol against red coupons. But I do not think there is any occasion for special treatment just because it is an estate pump.
I think I have answered all the various points that have been made. I must reaffirm that this Amendment, even when interpreted in the other way, is still 1754 letting out far too much. But that does not amount to an essential difference of opinion between us. What the hon. Member for Thirsk and Malton (Mr. Turton) is wanting, on his new interpretation, is that where there is only one pump in a parish it should automatically be exempt from the scheme. It cannot be exempted in the sense that it can supply both types of petrol from the same pump. We cannot deal with the problem by cans. Therefore, I submit the only way is to enable the garages to supply white petrol. If in every case where there is only one pump they might supply white petrol, that I think would achieve exactly the same object As the hon. Member desires. But I am not prepared to go as far as that, because I do not think the fact that there is only one pump in a parish requires it. We will grant licences wherever we think it necessary, but not where we do not.
§ Mr. R. S. Hudson
It is clear the right hon. Gentleman does not appreciate the difficulties of the agricultural communities living in rural areas and separated by long distances. The hon. Member shakes his head. He does not live in one of these rural areas and does not appreciate their needs.
§ Mr. Tolley (Kidderminster)
We on this side appreciate the difficulties of the countryside as much as the right hon. Gentleman and his friends.
§ Mr. Hudson
The Minister does not appreciate them, or he would not have taken up this very harsh non possumus attitude. It is clear there is going to be a waste of petrol. The right hon. Gentleman said it did not matter wasting half a gallon—
§ Mr. Gaitskell
I did not say that. I said it should be possible to make arrangements to pick up petrol at the ordinary time and place. I am making it plain that I do not regard this as an occasion for demanding extra petrol.
§ Mr. Hudson
I fully appreciate that. Every word the right hon. Gentleman has said merely confirms me, and will confirm the agricultural community in the belief that he does not understand the problems that face them.
§ Sir Richard Acland (Gravesend)
My view is that the Opposition enlarges difficulties in order to ask for concessions 1755 which, if granted, will destroy the purpose of the Bill. These difficulties are much less than the Opposition make out. Every rural one-pump man will choose to stock red petrol, so no difficulty can arise for the farmer, and the only possible inconvenience is to the private motorist.
§ Mr. Assheton (City of London)
The farmer may have a motorcar which he uses for other than farm purposes.
§ Sir R. Acland
The private motorist in the country, be he farmer, doctor or shopper, is using his motorcar almost invariably for the purpose of taking him from his remote village into the nearest market centre or county town for one purpose or another. It is a convenience to my wife as a shopper, or as a member of the rural district council, to be able to get petrol at our local garage, which is a mile and a half away. It happens to be a two-pump garage, but supposing that
§ it were a one-pump garage which chose to supply red petrol, it would not be an intolerable burden for us to have to remember to get our tanks filled up on each occasion when we went to Exeter.
§ 4.30 p.m.
§ Sir R. Acland
Even in the remote areas, the reason why a motorist gets supplementary petrol is to carry him to the more populated centres where two-pump garages exist. That is the position in 99 cases out of a 100 and the hundredth case will be exactly that type of case where the Minister will grant a licence.
§ Question put, "That those words be there added."
§ The Committee divided: Ayes, 74; Noes, 155.1757
|Division No. 138.]||AYES.||[4.32 p.m.|
|Amory, D. Heathcoat||Holmes, Sir J. Stanley (Harwich)||Odey, G. W.|
|Assheton, Rt. Hon. R||Hudson, Rt. Hon. R. S. (Southport)||O'Neill, Rt. Hon. Sir H|
|Baldwin, A. E.||Hutchison, Lt.-Cm. Clark (E'b'rgh, W.)||Peto, Brig. C. H. M|
|Baxter, A. B||Kingsmill, Lt.-Col. W. H.||Pickthorn, K.|
|Bowen, R.||Lambert, Hon. G.||Pitman, I. J.|
|Boyd-Carpenter, J. A.||Langford-Holt, J.||Poole, O. B. S. (Oswestry)|
|Bracken, Rt. Hon. Brendan||Legge-Bourke, Maj. E. A. H.||Prescott, Stanley|
|Braithwaite, Lt.-Comdr J. G.||Lennox-Boyd, A. T.||Ramsay, Maj. S.|
|Bromley-Davenport, Lt.-Col. W.||Lipson, D. L.||Rayner, Brig. R.|
|Buchan-Hepbum, P. G. T.||Lloyd, Selwyn (Wirral)||Reid, Rt. Hon. J. S. C. (Hillhead)|
|Butcher, H. W||Lucas-Tooth, Sir H.||Ropner, Col. L|
|Carson, E||MacAndrew, Col. Sir C.||Ross, Sir R. D. (Londonderry)|
|Challen, C.||Mackeson, Brig. H R||Smith, E. P. (Ashford)|
|Channon, H||Maclay, Hon. J. S.||Smithers, Sir W.|
|Clarke, Col. R. S.||Maclean, F. H. R (Lancaster)||Stanley, Rt. Hon. O.|
|Crosthwaite-Eyre, Col. O. E.||MacLeod, J.||Sutcliffe, H.|
|Cuthbert, W. N||Maitland, Comdr. J. W.||Thorp, Brigadier R. A. F.|
|Drewe, C||Manningham-Buller, R. E||Turton, R. H.|
|Fleming, Sqn.-Ldr. E L.||Marlowe, A. A. H.||Vane, W. M. F.|
|Fraser, Sir I. (Lonsdale)||Marsden, Capt. A.||Webbe, Sir H. (Abbey)|
|Galbraith, Cmdr. T. D.||Marshall, D. (Bodmin)||Wheatley, Colonel M. J. (Dorset, E.)|
|Gomme-Duncan, Col. A||Mellor, Sir J||Willoughby de Eresby, Lord|
|Grimston, R. V.||Morrison, Maj. J. G. (Salisbury)||Young, Sir A. S. L (Partick)|
|Harden, J R E||Morrison, Rt. Hon. W. S. (Cirencester)|
|Harris, F. W. (Croydon, N.)||Neven-Spence, Sir B||TELLERS FOR THE AYES:|
|Head, Brig A. H||Nutting, Anthony||Mr. Studholme and|
|Acland, Sir Richard||Bowles, F. G. (Nuneaton)||Daines, P.|
|Adams, W T (Hammersmith, South)||Bramall, E. A||Davies, Edward (Burslem)|
|Allen, Scholefield (Crewe)||Brook, D. (Halifax)||Davies, Ernest (Enfield)|
|Attewell, H. C||Brooks, T. J (Rothwell)||Davies, Haydn (St Pancras, S. W.)|
|Ayles, W. H.||Brown, T. J. (Ince)||Davies, S. O. (Merthyr)|
|Ayrton Gould, Mrs. B||Bruce, Maj. D. W. T.||Deer, G.|
|Bacon, Miss A||Callaghan, James||de Freitas, Geoffrey|
|Balfour, A||Castle, Mrs. B. A.||Diamond, J.|
|Barstow, P G||Chamberlain, R. A||Dodds, N. N|
|Barton, C||Champion, A. J||Donovan, T|
|Battley, J R||Chetwynd, G. R.||Dumpleton, C. W|
|Bechervaise, A. E.||Cluse, W S.||Ede, Rt. Hon. J. C.|
|Benson, G||Cocks, F. S.||Evans, Albert (Islington, W.)|
|Beswick, F||Collindridge, F||Evans, John (Ogmore)|
|Bing, G. H. C.||Comyns, Dr. L||Ewart, R.|
|Binns, J.||Crawley, A||Farthing, W. J.|
|Blackburn, A. R.||Daggar, G.||Gaitskell, Rt. Hon. H. T. N.|
|Ganley, Mrs. C. S.||McAdam, W.||Skinnard, F. W.|
|George, Lady M. Lloyd (Anglesey)||McGhee, H. G.||Snow, J. W.|
|Gilzean, A.||Mack, J. D.||Soskice, Sir Frank|
|Glanville, J. E. (Consett)||Mallalieu, E. L. (Brigg)||Sparks, J. A.|
|Granville, E. (Eye)||Mallalieu, J. P. W. (Huddersfield)||Stubbs, A. E.|
|Grey, C. F.||Manning, C. (Camberwell, N.)||Summerskill, Dr. Edith|
|Guest, Dr. L. Haden||Mellish, R. J.||Sylvester, G. O.|
|Gunter, R. J.||Mitchison, G. R||Symonds, A. L.|
|Guy, W. H.||Monslow, W.||Taylor, H. B. (Mansfield)|
|Haire, John E. (Wycombe)||Morrison, Rt. Hon. H. (Lewisham, E.)||Taylor, R. J. (Morpeth)|
|Hall, Rt. Hon. Glenvil||Moyle, A.||Thomas, George (Cardiff)|
|Hannan, W. (Maryhill)||Noel-Baker, Capt. F. E. (Brentford)||Thorneycroft, Harry (Clayton)|
|Hardy, E. A.||Oldfield, W. H.||Thurtle, Ernest|
|Harrison, J.||Oliver, G. H.||Tiffany, S.|
|Hastings, Dr. Somerville||Palmer, A. M. F.||Titterington, M. F|
|Henderson, Joseph (Ardwick)||Parkin, B. T.||Tolley, L.|
|Hicks, G.||Paton, Mrs. F. (Rushcliffe)||Usborne, Henry|
|Holman, P.||Paton, J. (Norwich)||Vernon, Maj. W. F.|
|Holmes, H. E. (Hemsworth)||Peart, T. F.||Viant, S. P.|
|House, G.||Perrins, W.||Wallace, G. D. (Chislehurst)|
|Hoy, J.||Popplewell, E.||Wells, P. L. (Faversham)|
|Hudson, J. H. (Ealing, W.)||Porter, E. (Warrington)||Wheatley, Rt. Hn. J. T. (Edinb'gh, E.)|
|Hughes, Hector (Aberdeen, N.)||Porter, G. (Leeds)||White, C. F. (Derbyshire, W.)|
|Hughes, H. D. (W'lverh'pton, W.)||Price, M. Philips||White, H. (Derbyshire, N. E.)|
|Hynd, J. B. (Attercliffe)||Pursey, Cmdr. H||Whiteley, Rt. Hon. W.|
|Irvine, A. J. (Liverpool)||Reeves, J.||Wigg, George|
|Jeger, G. (Winchester)||Reid, T. (Swindon)||Williams, J. L. (Kelvingrove)|
|Jeger, Dr. S. W. (St. Pancras, S. E.)||Ridealgh, Mrs. M.||Williams, Rt. Hon. T. (Don Valley)|
|Jenkins, R. H.||Robens, A.||Woodburn, A.|
|Jones, D. T. (Hartlepool)||Rogers, G. H. R.||Wyatt, W.|
|Jones, Elwyn (Plaistow)||Ross, William (Kilmarnock)||Young, Sir R. (Newton)|
|Kinley, J.||Sharp, Granville|
|Lawson, Rt. Hon. J. J.||Shawcross, Rt. Hn. Sir H. (St. Helens)||TELLERS FOR THE NOES:|
|Levy, B. W.||Simmons, C. J.||Mr. Pearson and|
|Lewis, A. W. J. (Upton)||Skeffington, A. M.||Mr. Richard Adams.|
|Lipton, Lt.-Col. M.||Skeffington-Lodge, T. C.|
§ Mr. Manningham-Buller (Daventry)
I beg to move, in page 1, line 24, to leave out "prove," and to insert:satisfy the court that it might reasonably be true.This Amendment raises a point of some substance and of considerable principle. It is provided under Clause 1 that a person can establish his innocence even though red petrol be found in his pump, or if he be found putting the wrong kind of petrol into a private motor vehicle, provided he satisfies all the conditions set out in the proviso. He has to prove several negatives. He has to prove that the petrol was put into the pump without his consent, that he did not know it was in the pump, and that he exercised all such diligence to prevent petrol being put into the pump as he ought to have exercised having regard to all the circumstances.
It would appear that there are certain similarities between the case of a person charged with the criminal offence of receiving stolen goods and a person charged with having red petrol in the wrong pump. Under the law as it stands, once a person is found in possession of something proved to have been stolen, the burden of proof passes from prosecution to him, and under this Measure the burden of proof also passes from the 1758 prosecution to the person accused. A great deal of importance must attach to the extent of the burden falling upon the person accused. As I understand it, this Bill casts a heavier burden of proof upon a person accused of having the wrong petrol in his pump than the burden of proof cast upon someone charged with receiving goods well knowing them to have been stolen. We should try to bring the degree of the burden of proof in this case into line with that resting upon the person charged with being a receiver. Where a man is charged with receiving he has not to prove his innocence, but if he satisfies the jury that his explanation of the manner in which he came into possession of the stolen goods may reasonably be true, then he is entitled to be acquitted even though the jury are not satisfied about the truth of his explanation. That is the law according to Rex versus Abramovitch in relation to receivers.
The point of this Amendment is to provide the same burden of proof so that no greater burden of proof will be cast upon anyone charged under Clause 1 of this Bill. If the Government, in that spirit of co-operation and goodwill which we hope to see in several instances, were to accept this Amendment, they would not be encouraging the black 1759 market in any way or weakening the Measure, but would be merely safeguarding against an innocent person being wrongly convicted. If a person is to satisfy the negative conditions of this proviso, what more can he do than go into the witness box and say "I did not know the petrol was in this pump"? He cannot call other people to prove his absence of knowledge, but can only express his own knowledge. The court may say that while it is true he did not know, he has not proved that he did not know, and therefore he must be found guilty of the offence.
On the other hand, if the court is able to say, after hearing evidence on oath and the cross-examination by the prosecution, that the evidence of the accused might reasonably be true that he did not know that the petrol was in his pump, that man, I suggest to the Committee, should be acquitted. He will not be acquitted, I suggest unless the Amendment be accepted. Perhaps the Attorney-General will differ from me in his view of the law. He may say that the object of the Clause is to provide that where a defence consistent with innocence might reasonably be true, the person concerned should not be convicted. My only reply would be that the Clause is very badly drafted if that is the purpose that it is intended to achieve. If the Attorney-General is not prepared to accept the wording of the Amendment I hope he will undertake to reconsider the wording of the Clause to make sure that the burden of proof in this case is no greater than upon a person accused of being in possession of stolen goods.
§ Mr. Blackburn (Birmingham, King's Norton)
Before I discuss this question it should be said, in fairness to the Attorney-General, that the proviso in regard to defence which he has incorporated in the Bill was not recommended by the Russell Vick Committee. The Attorney-General has gone further in the direction of protecting the accused than Russell Vick himself who, I understand is a member of the Liberal Party.
The same point arises on Clause 1 as upon Clause 2. This is an issue upon which Parliament has to make up its mind. I believe that it is a point of very great importance and I feel very deeply 1760 indeed upon it. The narrow issue is whether Parliament will pass a Measure which, by its terms, obliges a court to convict a man who, in the opinion of the court, is just as likely to be innocent as guilty. That is the effect of the Clause. I pointed out a week ago that under Clause 2, if there is a reasonable doubt in favour of the accused, he is still convicted. The Attorney-General did not take that view, and I then stated he was wrong. I now propose to attempt to prove that he was wrong in the view which he gave to the House.
This matter is very serious. An opinion given by the Attorney-General in this House has no validity in the courts, who are not entitled to consider what an Attorney-General, on behalf of the Government, has stated as his opinion. There is a specific case on this matter, on 25th May, 1943, in the Court of Criminal Appeal, before the Lord Chief Justice, and Lords Humphries and Ellis. It was a case in which the onus of proof was clearly placed upon the defendant. I agree with the hon. and learned Member for Daventry (Mr. Manningham-Buller) that the case is a stronger one than that which I am citing. In the case to which I have referred there was to be a conviction, unless the accused proved otherwise. In the present case, the accused has not only to prove otherwise but to prove (a) and (b) under Clause 1, and (a), (b) and (c) under Clause 2.
The decision of the Court of Criminal Appeal was:Where such an onus of proof is cast upon the defendant he has to satisfy that onus of proof in just the same way as a plaintiff in a civil action has to satisfy the onus of proof resting upon him.Perhaps I might read the specific words of the decision:The onus of proof was only to satisfy the jury of the probability of that which he was called upon to establish.The effect of the decision was as follows:The decision in which the learned judge below was over-ruled because he had taken the view that the accused has to prove his case beyond reasonable doubt, was that the accused still has to prove his own case. He has to prove that he is innocent, but the burden of proof is the same as that upon the plaintiff of a similar action, who has to prove his own case.Where does that decision lead us? It leads us into the situation that if a man is charged under Clause 1 and if the facts 1761 stated in the Clause are proved, the onus of proof then shifts to the defendant. If the defendant satisfies the court that he is just as likely to be innocent as guilty, the court still has to convict the accused, under the terms of the Bill.
There are two points I would like to raise on that matter. The first is that it is utterly repugnant to every sense of British fairplay and justice. In fact, it is bringing into our courts a provision which is associated in the minds of the public with the Continent and not with the traditions of this country. The second point is that I do not believe it will be an effective way of implementing the principles which the Government wish to implement. The courts of justice in this country will not stand for an Act of Parliament which reverses the whole tradition of British justice, and are unlikely to be prepared to implement this Measure loyally—as they ought, because it is a very necessary Measure. They will feel that this provision has been dragged in to oblige them to convict a man about whose guilt they have reasonable doubt. I hope that the Attorney-General will be able to reconsider this matter, and to give us a conciliatory answer.
§ Mr. Boyd-Carpenter (Kingston-upon-Thames)
I agree that this is a very important matter and raises a question of principle as important as any in the Bill. From a practical point of view, the difficulty is, as one of my hon. Friend's said on the Second Reading, that if somebody who is charged with an offence goes into the witness box and simply says, "I do not know how the petrol got there," there is no certainty and there is hardly a probability, that he will be acquitted. Yet it is perfectly possible to imagine the situation in which that was the simple truth and that the accused man was quite unaware how the petrol got into the inappropriate receptacle, and consequently was not able to offer any explanation or to establish the defence he should establish under the Clause.
All that the accused would be able to do would be to put up a story which might reasonably be true and which would be consistent with his innocence. As my hon. and learned Friend the Member for Daventry (Mr. Manningham-Buller) pointed out, if a man is accused of receiving stolen property and he can do 1762 as much as that, he is entitled to acquittal, yet the man found with the wrong-coloured petrol in a pump has to go a good way further. I shall be interested to hear the Attorney-General telling us whether the hon. Member for King's Norton (Mr. Blackburn) was right and that it is necessary for an accused to establish his defence as a reasonable defence. I thought that the Bill did not go as far as that.
§ Mr. Boyd-Carpenter
If the hon. Member looks at the OFFICIAL REPORT I think he will discover that he did. I think that he appreciates the necessity for meticulous accuracy on this point.
§ Mr. Blackburn
I said over and over again, and I cited a case to show it, that the burden of proof upon an accused person is the same as the burden of proof upon a plaintiff in a civil action.
§ Mr. Boyd-Carpenter
The case quoted by the hon. Member is not consistent with his opening sentence. If the hon. Member looks at his opening sentence, and particularly at the rather charming rhetorical flourish with which he opened, I think he will see that I am right. I do not want to spend any more time on this point. Let me return to the question of the accused man who says: "I do not know how it happened."
My hon. Friend the Member for South Hendon (Sir H. Lucas-Tooth) challenged the Attorney-General on this point on Clause 2 of the Bill during the Second Reading Debate. Intervening in the middle of the Attorney-General's speech he said:Suppose that a reputable person, in whose car petrol was found, merely said: 'I swear on oath that I do not know how that petrol came into my tank'—would it be open to the court to acquit him?The Attorney-General said this:It would largely depend on the view the court took as to his credibility.He went on to say:If, in the end, the court believed him, it would be for the court to say whether he had proved the defence left open to him under the provisions of the Bill. In the end, it really comes down to the question of whether the court believes, on his oath, the motorist who gives evidence and an account of how he came by his petrol."—[OFFICIAL REPORT, 3rd May, 1948; Vol. 450, C. 991.]1763 As I understand his answer, the Attorney-General was saying that the result would depend upon whether the court believed the accused.
That seems to me to be a wrong principle to apply. It would be perfectly possible, therefore, for a man of thoroughly unreliable character to be charged with, and to be innocent of, an offence and yet to be convicted. A man of high reputation, such as the patronage Secretary, would be entitled to acquittal, according to that principle, while a man with a less distinguished reputation for probity would be in some jeopardy. We are introducing a very dangerous principle into the trial of these offences if a verdict of "Innocent" or "Guilty" is to be given simply according to the type of personality of the accused. There is implicit in this doctrine, stated by the Attorney-General, just that danger. I ask the Committee to realise that this is a matter which ought to be taken into account. It seems to be taking us into very dangerous waters and into a state of affairs which, as the hon. Member for King's Norton rightly said, is inconsistent with the traditions of the criminal law. It is reminiscent of the standards of administration of criminal law in certain other countries.
I hope that the Attorney-General will accept the Amendment. We are not trying to free persons from giving an explanation after they have been found with the wrong petrol. We are trying to put a somewhat lighter onus upon them. It is becoming more and more apparent that there is a possibility of the greatest miscarriage of justice, as the Clause is drafted. There is great force in what the hon. Member for King's Norton has said, that if one produces a Bill the phraseology and drafting of which is regarded by most sensible and reasonable people as unfair, it will be found that sensible and reasonable persons will do their best to mitigate its severity by not being anxious to carry it out to the full. That is the danger to which I feel this Bill is exposing the enforcement of provisions against the black market. If the Government insist on including a provision which as it stands is repugnant to most people who have standards of fairness in this matter not only will they inflict injustice, but they will make their Bill much less enforceable than it would otherwise be.
§ The Attorney-General (Sir Hartley Shawcross)
I have naturally listened to this Debate with great interest and with a good deal of sympathy for many of the views which have been expressed, but I cannot help feeling that a great many of the fears which seem to agitate the minds of hon. Members are really misconceived. I adhere to the view—and I have given this matter full consideration since the Second Reading Debate—that this Clause does not cast a burden upon the defendant to prove his innocence beyond reasonable doubt. What the defendant is required to do under this Clause, and hon. Members may think that this is not a heavy burden upon him, is to show that it is reasonably probable that he did not know that there was red petrol in his car, and that it is "reasonably probable" that he took all reasonable steps to avoid acquiring red petrol.
He does not have to satisfy the court that he did in fact take all reasonable steps to avoid acquiring red petrol; he does not have to satisfy the court beyond doubt that he did not know there was red petrol in his car. But if the court, after having heard him—and in any case any court is bound to have some regard to the credibility of the witness who appears before it—come to the conclusion not that they are satisfied beyond all doubt that what he is saying is true but that it is reasonably probable, he would be entitled to acquittal under the existing law. I had the case which my hon. Friend the Member for King's Norton (Mr. Blackburn) quoted very much in mind when I considered this Clause.
There is a good deal of confusion in the minds of some hon. Members as to the position in regard to onus of proof in those cases where guilty kowledge is an essential element or an ingredient in the criminal offence and those where it is not. In the case to which the hon. and learned Member for Daventry (Mr. Manningham-Buller) referred, a case of receiving stolen goods, the whole offence was constituted by the receipt of stolen goods by persons who knew at the time that they received them that they were stolen. Guilty knowledge is an essential element in the offence, and if in such a case the defendant satisfies the court, not indeed that he did not know they were stolen, but that it is possible that he has put forward a reasonably probable story that he did not know, then, as in the case to which the hon. and learned Member referred, the defendant is 1765 entitled to acquittal. That is the position under the law in regard to those cases where guilty knowledge is an essential ingredient.
There are a great many statutory offences in which guilty knowledge is not required. Not only recent statutes but statutes which have been passed over a considerable period of time have often created, to a greater or lesser degree, an absolute liability. That is particularly the case where the subject matter of the offence is something which can normally be within the knowledge and within the control of the person charged with committing the offence. In the case of receiving stolen goods it may sometimes be difficult—receivers say it is always difficult and they may sometimes be right—to tell whether the goods concerned have been stolen or not, because the fact of their theft does not impress itself on the shape or colour of the goods.
In the case of petrol it ought normally not to be difficult for a motor car owner who is not colour blind to tell whether the petrol which is being put into his tank is red or white, or to take reasonable precautions—he is not required to do any more if he is not himself in charge of his car at the time—that other people shall not put red petrol into his car when it is a car which is only entitled to use white petrol.
For those reasons we have felt it right to take the view, which was indeed taken, as my hon. Friend pointed out, by the Russell Vick Committee, that this type of offence ought to be made one of absolute liability in which knowledge on the part of the defendant was not an essential ingredient. Indeed, the Russell Vick Committee, as the hon. Member fairly pointed out, went rather further. They carefully considered the whole of this matter, heard evidence on it, consulted the motor associations on it, and considered the practical difficulties which would arise if prosecutions had to be conducted and this Bill had to be enforced on any different basis. They came to the conclusion that the offence should be made one of absolute liability, and further, that there should be no defence at all in the case of the garage owner or the car owner who was found with red petrol in his tank, except that in, the case of the car owner he might be able to raise a defence if he could show that the car had been taken out of his control and was being used at 1766 the time without his knowledge, as, for instance, where it had been stolen or taken improperly for a joy ride or something of that kind.
After the matter had come to us from the Russell Vick Committee we gave it careful thought, and we recognised that there was great force in the view that the Committee had taken. The owner is normally in control of his motor car, and if we try to legislate for exceptional and sometimes fantastic cases, we shall make bad law. The owner normally being in control of his car he will in all normal circumstances be able to ensure that it only consumes the kind of petrol to which he is entitled. We recognised that there was great force in the view which the Committee had expressed. None the less, we thought it would be right to mitigate and relax the stringency of the rule which the Committee had suggested by enabling owners to raise the particular defences which are set out in the Clause.
I cannot help thinking that when courts, whether justices' courts or juries, come to consider offences and to consider the defences which may be raised by defendants who are brought before them under the statute, they will normally not have much difficulty in making up their minds. If they believe the defendant they will come to the conclusion that he has proved his defence, and that will be an end of the matter. But if at the end of the day they come to the conclusion that although they are not satisfied that the defendant has proved his defence he has raised a sufficient doubt in their minds as to lead them to think it is quite possible, quite probable, quite reasonable that the defence may be true, it is their duty to acquit.
If there is any doubt about it, I will read what was said about it by one who is, I suppose, one of our greatest criminal judges at the present time, Mr. Justice Travers Humphreys. It is true that anything I say here or anywhere else has no authority, but what he says is, of course, binding upon all other courts that are likely to have cognisance of these offences. He said, in the case to which the hon. and learned Member referred, but the judgment in which he did not cite, the case of Rex v. Carr-Braint:The second ground relied on for the appellant is that the Judge misdirected the jury as to the extent of the burden of proof placed 1767 on an accused person by the terms of Section 2 of the Prevention of Corruption Act, 1916. That Section provides, inter alia, that wherein any proceedings against a person for an offence under the Prevention of Corruption Act, 1906, it is proved that any consideration has been given to a person in the employment of any Government Department by the agent of a person holding a contract from a Government Department, the consideration shall be deemed to have been given corruptly as such inducement or reward as is mentioned in the Act, unless the contrary is proved'.He is dealing with one type of case under that Act, incidentally, a very old Act, in which money is paid to a Government official who has contractual relations with the person who pays that money—where it is to be deemed to have been paid corruptly unless the contrary is proved. To continue my quotation:The judge directed the jury on this point as follows.…That is to say, the judge laid down the proposition that the onus of proving his innocence lay on the accused and that the burden of proof resting on him to negative corruption was as heavy as that resting in a normal case on the prosecution.…In our judgment"—and this is the operative part of this decision—in any case where, either by stature or at common law, some matter is presumed against an accused person 'unless the contrary is proved,' the jury should be directed that it is for them to decide whether the contrary is proved; that the burden of proof required is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt; and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called on to establish.That was the same expression that I used in advising the Committee just now about the matter. Under the provisions of this Measure the accused will not be required to prove beyond doubt that he did not know there was petrol in the tank, that he had taken all reasonable precautions about it. He will have to satisfy the court, on the whole of his evidence, that it is reasonably probable that he did not know, and that he had taken proper precautions.
The effect of this Amendment would simply be to embody in the statute what is in effect a common law rule of statutory construction. If one were to do that one would at once cast doubts upon the proper construction of other Acts where the defendant was given this kind of defence but where the words contained in this 1768 Amendment had not been inserted. I am afraid that I have not made myself very clear. Let me try again. It is often necessary for courts, in deciding what construction is to be put on any particular Act, to compare what is in one Act with another, and sometimes that is a useful thing to do. If one inserts in this Bill an express provision on the lines of the decision of the court in the case of Rex v. Carr-Braint the presumption will be that any further Acts where those words embodying that rule of construction are not inserted create a position in which the defendant is called upon to prove his defence beyond reasonable doubt.
Where particular words, such, as the words in this Bill are re-enacted, after a court has given a judicial construction as to what those words mean, it is a well known rule of construction that those words are re-enacted in the sense that the court has construed them. I think that the House can feel quite assured that these words to be found in both Sections 1 and 2 of this Bill do not impose any obligation upon the defendant to prove his innocence beyond doubt, but entitle a defendant to an acquittal if the court, having heard all the precautions he took and what the circumstances were in which the car had been recently used and so on, comes to the conclusion that it is reasonably possible and probable that he did not know, and that he had taken all possible precautions. In those circumstances I hope that hon. Members will not think it right to press this Amendment, which would have the effect of being rather an open encouragement to justices to take a lax view about the administration of this Bill, would add doubt to dubiety and would make it very difficult to say exactly what the effect of the Carr-Braint decision was on this statute, or any other statute where similar words were used.
§ Mr. W. S. Morrison (Cirencester and Tewkesbury)
The Committee has heard with a good deal of disappointment of the attitude which the Attorney-General has chosen to adopt to this Amendment, and also with a certain amount of bewilderment, because the arguments put forward by him for rejecting it were, in the main, directed to showing that the object which it is desired should be effected, would be effected if the words which we 1769 proposed to insert were inserted. He has given us a general view that a man who is charged with having the wrong petrol in his tank would be quite open to say that there is a reasonable probability that it was innocently in the tank. That is how the Bill would read if our Amendment were accepted. It is not how it reads without it.
Clause 1 itself says that if the wrong sort of petrol is in the pump a man shall be guilty of that offence. All that is necessary is for petrol to be found in the pump, and then the man is guilty of an offence. The Bill goes on to propose that the man shall have a defence, but the defence is to prove that the commercial petrol was put into the pump without his knowledge or connivance, that he did not know it was there, and so on. That is a very heavy burden of proof for a man to discharge. It is always notoriously difficult to prove a negative at any time. If the man did not know that the petrol was there it is very difficult for him to prove facts in support of the fact that he did not know it was there. The thing is absurd, and I hope that the Attorney-General will think on this again.
I am not at all impressed by the argument which he addressed to us that if we put these words into this Bill we shall cast doubt upon previous decisions in other cases. We are doing nothing of the kind. This Bill will merely cover this extraordinary set of new offences which we feel obliged to create. It will have no effect upon established decisions of law on other matters. What I could not make out in the argument of the right hon. Gentleman was on which foot he stands. In the first place he proceeded to distinguish this type of offence from offences known to criminal law where guilty knowledge was an essential element. He seemed to support that point in his argument upon the basis that these heavy penalties in the Bill are to be inflicted whether, in fact, there is guilty knowledge or not. If that is part of the Government's intention I am sure that the Committee would reject it. One has no right to take away man's livelihood—as this might do—and send him to prison for two years, if he had no intention of doing anything wrong. There is no precedent for that in the law of England.
1770 Then the Attorney-General rather shifted off that ground, and said that, in fact, it does not matter what are the words in the Clause so long as the man is able to show a reasonable case. If that be the case, that is the law with regard to those crimes where guilty knowledge is not an essential element. He mentioned the case of Abramovitch which deals, as I recollect it, with the law regarding the receiving of stolen goods. I think that the crime of receiving stolen goods has more resemblance to this particular sort of offence than any other in the criminal calendar. If a man corruptly put red petrol into his private car tank he is doing it for gain, having come by the red petrol nefariously, and he is on all fours with the common "fence" or receiver.
What does the law provide for the offence of receiving stolen goods? Unless the indictment alleges at the very start that the goods were received knowing them to have been stolen, that indictment is bad and the proceedings are rejected. Unless the judge, in summing up to the jury, brings out the essential fact of guilty knowledge a conviction can be quashed on appeal. In the case of Abramovitch, he was accused of being a receiver of stolen goods. He was caught with the goods in his possession. The question was, did he know they were stolen or not? He put forward a story of how the goods came to be on his premises and the chairman of quarter sessions who was summing up to the jury, put the question to the jury in this form, "You have heard the prosecution's view of how the goods came to be there, you have heard Abramovitch's view. What you have to decide is which view is true."
That is to say, he was putting it to the jury that Abramovitch had the onus of satisfying the jury that his story was true. When the case went to appeal it was quashed on that very ground, because it was not the duty of the jury to decide whether Abramovitch's story was true. If the jury believed Abramovitch's story, however far-fetched it might sound, had there been a reasonable prospect of it being true, then the prosecution had not discharged the onus of proving their own case absolutely, and the conviction was bad. That is the case of Abramovitch, which has covered this sort of case ever since. I suggest to the Committee that it is a very serious thing to depart from 1771 a very well tried principle. Circumstantial evidence can look very black against an innocent man. It is for that reason that our criminal law requires the most stringent degree of proof that human reason can encompass, and that is a very wise thing.
We should remember that the "criminal" as we must call him under this Bill, who puts red petrol into the wrong tank will be very much in the minority. We may catch a few men by this stringent departure from the laws of evidence hitherto required, but it is far better that some guilty people should go free than that one innocent man should suffer because the proper degree of proof has not been exacted. Far from being comforted by what the Attorney-General has told us, I feel it would be very dangerous to allow this drastic—one might almost call it Draconian—code to go forth without seeing that in this Committee and this House we retain the onus of the prosecution proving the guilt of the charge.
§ Mr. Blackburn
I hope that there is some chance of the Attorney-General changing his mind even at this late stage. It has been admitted by him that, if the matter is left in a state of equilibrium, so that the court is not sure whether the man is guilty or innocent, if it is a fifty-fifty case, the man is to be convicted. As I have said before, the narrow issue is whether Parliament will pass an Act of Parliament which, by its terms, oblige a court to convict the man who, in its opinion, is just as likely to be innocent as guilty. The Attorney-General has not denied that this is the position now under the Bill and I appeal to him to reconsider the matter.
§ Major Legge-Bourke (Isle of Ely)
I wish to touch upon three points which have not so far been mentioned in this Debate. The first one is the possibility of the colour having been removed from the petrol and the examination being based only upon the chemical in the petrol. It does seem that it is perfectly possible that somebody might have their tank filled up with petrol from which the colour had been removed, but from which the chemical had not been removed. It is extremely unlikely that a person to whose car that had 1772 been done would realise it, supposing he took the trouble to look into the tank. It is important that the Attorney-General should realise that, if a certain time elapses between the commission of the offence and its detection, it may be extremely difficult for the offender to produce any evidence at all. In that case, to place on him the burden of proving his innocence seems grossly unfair.
The second point is that the Attorney-General has cited, as a sign of his leniency, the fact that in the report of the Russell Vick Committee, the offender was given no chance to defend himself at all, and that therefore this Clause should be accepted, because it is so much more lenient than the recommendation of the Russell Vick Committee. In my opinion the first thing to find out is whether there is any tyrannical aspect to this Clause. If both the Russell Vick Committee recommendations and this Clause happen to be tyrannical, it is no defence of the Clause to say that it is less tyrannical than the Committee's report. If it is tyrannical we should if possible try to avoid it. I detest the whole frame work of this Clause for the very reason that it places the burden of proof of innocence on the defendant, and that he, therefore, is guilty until he is proved innocent. If, in order to carry out what we want to do, we have to be tyrants about it, we might seriously consider whether it would not be better not to deal with it at all.
My third point is that a great many of the people who will be affected or may be affected, will be the owners of small cars and people to whom the "courts" represent something rather terrifying. There is such a thing as being incoherent in a court, and I believe that humbler people will tend to be incoherent. If we place upon them the burden of proof in this matter in the way in which this Clause outlines we may be doing an injustice to the humbler people to whom the word "court" implies something which puts them completely off their balance. Therefore, I hope that the learned Attorney-General, will look at this matter again, because in my opinion this Clause is pure tyranny and nothing else. I fully accept the argument that it is most undesirable that anyone should be allowed to get away with the crime of putting commercial 1773 petrol into the tank of a private motorcar, but I cannot accept the idea of making a man guilty, and then making him responsible for proving his innocence.
§ 5.30 p.m.
§ Mr. J. S. C. Reid (Hillhead)
I had not intended to intervene in this matter, but there is one point upon which I would like to have the view of the learned Attorney-General. I do not agree with the general remarks which he made. I am more inclined to agree with the hon. and learned Member for Daventry (Mr. Manningham-Buller) and the right hon. Member for Cirencester and Tewkesbury (Mr. W. S. Morrison). The learned Attorney's argument was, as I understood it, based upon cases where only one thing had to be proved by the accused person. Here there are three separate things to be proved. The Clause provides that as a defence you have to prove that the red petrol was put into the pump without your consent, that you did not know it was there, and that you exercised all due diligence.
It may well be that you can prove that you did not know by swearing that you did not know how the red petrol got there, and be believed. But that discharges only that part of the onus. It does not touch the first part, which apparently, according to the draftsman, is something quite different from that knowledge. Therefore, if I go into the witness box and say "I do not know how that got there," I may discharge the onus on the second of the three parts with which I have to deal, and I am able to explain, perhaps, although that is not so easy, all the things I did and thereby discharge the onus on the third part of exercising all due diligence. But these two things do not touch the first part, because I have to prove that the petrol was put into the pump without my consent. I cannot prove the two things by simply swearing that I do not know how it got there. Therefore, it seems to me that the learned Attorney's argument, even if it were a better argument than I am inclined to think it is, does not fit this Clause.
§ Mr. Manningham-Buller
I hope the right hon. and learned Gentleman will reply to the points which have been raised. This is a very important matter. I think that has been agreed on both sides of the Committee. Its importance is in no way 1774 minimised by the fact that the Attorney has apparently sought to resist the Amendment on the point that what it seeks to provide is already provided in this Measure. I find that argument not easy to follow. The Attorney seemed to be arguing that it was one and the same thing to prove as it was to say that you do not have to establish it beyond reasonable doubt. Indeed, he indicated, as I understood his argument, that an accused person was entitled to be acquitted if he satisfied the court that what he said might probably be true.
That really is not what this Clause says. If it is the Government's intention that a man who does his best to satisfy the court and satisfies the court that his account of what happened might reasonably be true—if that is the Government's intention, and I think the Attorney expressed that as the Government's intention—there is nothing between us in our desire about what this Clause should provide. But there is a great deal of difference in the wording of the Clause. I do ask the Attorney to try to find a form of words which does not leave the meaning of this important proviso in any degree of doubt. My right hon. and learned Friends agree with me in the view I put forward. The Attorney has sought to put forward another view of the legal interpretation of this proviso. When you are creating an offence, the nature of the defence should not be left in doubt. In those circumstances, I do ask the Attorney to reconsider this matter to see if he can find words which will express what appears to be the common intention of both sides of the Committee with no shadow of doubt about the meaning of those words.
§ The Attorney-General
I am sorry that I cannot hold out very much hope of our introducing any further Amendment of this Clause. I will consider the matter again, certainly, and satisfy myself, as I have already satisfied myself; that the doctrine which was laid down in the case of Carr-Braint will apply to this Bill as it has applied, I should think, to probably a score of Acts which have been on the Statute Book for a very long time. The right hon. Member for Cirencester and Tewkesbury (Mr. W. S. Morrison) gave us a long account of the law relating to receiving and I do not quarrel with it in any respect, but the case of Abramovitch 1775 was one where the onus lay on the prosecution to prove guilty knowledge on the part of the defendant, and that case simply decided that if the defendant raised a story such as was raised which might be true then that onus was not discharged and the defendant was entitled to an acquittal.
I agree that there is a close moral analogy between receiving stolen goods and black marketing in petrol, and I am glad to hear that clear indication of the right hon. Gentleman's view as to the nature of black market offences, namely, that they are as blameworthy as the receiving of stolen goods. But, when one comes to the facts in the cases of receiving and of black marketing in petrol, the position is very different. I have already explained that stolen goods have no mark upon them—there is no advertisement or other indication—to lead one to the knowledge that they have been stolen. Commercial petrol is coloured red and a garage proprietor or car owner ought to know, unless he is colour blind, if he is acquiring red petrol in his garage tanks or in his car.
§ Mr. Manningham-Buller
There is one point there. The right hon. and learned Gentleman has said that commercial petrol is coloured red, but the colour may be taken out and only the chemical content remain. In such a case, then the man will not be able to tell which particular petrol it was
§ The Attorney-General
We are not here able to legislate for, if I may say so, such unlikely and fantastic cases. It will involve a great deal of trouble—
§ Mr. Manningham-Buller indicated dissent.
§ The Attorney-General
The hon. and learned Gentleman shakes his head, but I assure him that that is so and he does not yet know the method of colouring. He suggests that someone will take out the colouring matter leaving only the chemical content, and then put that petrol into the tank of a car into which it is not entitled to be put without the knowledge of the owner.
§ Mr. Manningham-Buller
I do not suggest that; but I said that on occasions one would find the chemical content in the petrol was such that the red might 1776 be so diluted that it would not be visible to anyone using the naked eye.
§ The Attorney-General
If that was so it would be a case where a defendant would be able to say, I should think, that he was in a difficulty which would be a defence in the courts. He could point to the fact that the dilution was so great that there was no colour. He would suggest, perhaps, that some red petrol had been left in the pump from which he drew his supply but such a case is not one in which anyone interpreting the law reasonably, and using commonsense, would prosecute at all. Hon. Members must assume that these regulations will be interpreted with some common sense and that prosecutions are not likely to be brought where dilution is so small that no trace of the colour content is left and that there was no good reason to suppose that the petrol was of a colour it should not have been.
§ Mr. W. S. Morrison
The hon. and learned Gentleman was good enough to reply to my argument about the parallel between the use of "illegal" petrol and stolen goods, and he made a great point that this commercial petrol is coloured and is a different article. I put to him this argument. This gives a prosecution such an almost overwhelming case to prove that the man is wrong that he ought to be given the liberty to explain himself in the proper way.
§ The Attorney-General
A man has ample opportunity, if he has a proper case, of satisfying the court that that is so, and it is quite idle and fantastic for hon. Members opposite to talk of tyranny if a garage owner—and a garage owner should have, and would have, complete control over his garage—or a car owner is called upon to show that he did not know there was red petrol in his car or in his pumps, and that he took all reasonable precaution to prevent red petrol from being put into the car or the pumps.
§ Major Legge-Bourke
I would remind the right hon. and learned Gentleman that in column 924 of the OFFICIAL REPORT, on the Second Reading Debate, the Minister of Fuel and Power stated that it might be possible to remove the dye.
§ The Attorney-General
It might be possible, but it is not easy, and it is fantastic to suppose that, where legisla- 1777 tion has been passed by this House such as is necessary in this matter, people would go to great trouble to do this sort of thing; that they will go to the trouble of removing the dye and then put the petrol into the cars of other people who have not taken precautions to prevent that kind of thing. In one out of a hundred thousand cases, it may be, somebody might remove the dye and then put the petrol into the tank of some other person; for example, the tank of a person it was wished should get into trouble. It would be a very grave offence, for which there would be a penalty, but in passing Bills we cannot provide for contingencies so improbable as that. If one had to deal with such contingencies, legislation would be virtually impossible. One has to assume that these Bills, when Acts, will be administered sensibly, and quite fantastic occurrences such as those suggested will not take place. All the defendant has to do if he is a garage proprietor is to show that he was present when his pumps were filled, or that, if he could not be present himself, he deputed somebody else to be present and arranged for the person in charge of the pumps to show which were the commercial pumps to the tanker man. That is all he has to do.
If, having heard his evidence, having put questions to him, the court comes to the conclusion that what he is saying is probably true—not that it is certainly true, but probably true—that man is entitled to an acquittal. Similar conditions apply to the motorcar owner. If he comes to court and swears that he did not consent to the petrol being put in; that he did not know that it was put in; that he had taken all reasonable precautions; that he had looked when he went to the garage; that he had noticed that the pump up to which he had drawn was labelled "Private"; that he had got out and watched the process of the filling of his tank and that he had seen that at the time he last filled it he filled it with white petrol—if the court believes that story, or if the court thinks that that story is reasonably true, the man is entitled to an acquittal.
That is my view of the law. I am not asking the Committee to accept it from me for a minute. That is the view of the law which has been applied by the 1778 courts of this country in case after case where other statutes have provided that certain defences may be proved, or must be proved, by the defendant. To talk about that being tyranny is really beside the point. We have had these Statutes, from the Prevention of Corruption Act of 1906 to the present day, where offences have been created but the defendant has been allowed to escape if he can prove some particular set of facts which are likely to be peculiarly within his own knowledge and difficult of proof one way or the other by the prosecution. In provisions of that kind, the courts have said that the defendant, relying upon that kind of defence, has only to satisfy the court that it is reasonably, probably, true that what he has said is correct, and if he does that he is entitled to an acquittal. I hope that the Committee will be satisfied that the courts will be able to apply that rule to the words of this Bill as they have applied them to exactly similar words in other Acts of Parliament without any possibility of injustice being done.
§ Mr. Gage (Belfast, South)
I am impelled to intervene because I am certain that the cases which the Attorney-General imagined to be so widely improbable are by no means improbable. In fact, I came across one during the war. Hon. Members will remember that precisely the same action as this was taken during the war. Army petrol was coloured red while civilian or pool petrol was white. In that part of the country where I was serving, it was discovered that large quantities of Army petrol was being "liberated" to the civilian population. In order to find those who were transgressing, the police adopted just the method to be adopted now. The civilian police stopped the people, took a sample from their tank, and when they found red army petrol they prosecuted for receiving stolen petrol. All went well. A number of people were prosecuted; but one day a clergyman was stopped and in his tank was found red petrol. He objected most indignantly and said that he had just got the petrol from a pool petrol pump. Therefore, the police went along and they tried the pool petrol pump and out came red petrol.
With that fine impartiality which characterised the police of that neighbour- 1779 hood, they prosecuted the owner of the pump as well as the clergyman. Both pleaded not guilty and the cases against both of them were dismissed because they satisfied the court. This is the point. All they had to say was, "We did not know that it was Army petrol; we did not know that it was stolen." They were able to do that. The clergyman was able to say, perfectly, properly, "I did not look at the petrol which was being put in. It was just pushed into the tank. I went to the proper place to get it. I drove off, and I was stopped." The owner of the petrol pump said that he had had a delivery the day before. He did not see the men put in the petrol and he assumed that everything was perfectly all right. There was an inquiry, as of course there would be in the Army in a troublesome matter like that. The circumstances were traced back as far as possible, but it was never discovered how that petrol got into the pump. I have no doubt, after, hearing all about it, after hearing as much evidence as could be collected, that it was a genuine mistake. I have no doubt that by mistake Army petrol which was intended for the Army was discharged into the petrol pump. The petrol people said that it was possible that might have happened, because where the two types of petrol had been carried in a tanker sometimes the white petrol might be discoloured.
The point is that under this Bill it will not be enough for the clergyman—to use him as my example—to say "I did not know." He will have to go one step further. He will have to say that he exercised all such diligence to prevent it being put into the car, or the owner of the pump will have to say that he exercised all such diligence to prevent it being put into the pump. I agree with a great deal of what was said by the Attorney-General; I thought that it was sound sense; but I find myself in a difficulty about one part of his speech. How can a person who lends his car to another say, "I have taken all reasonable precautions," beyond saying to the person to whom he lends the car, "You must not put in red petrol"?
§ The Attorney-General
Perhaps I can help. I say frankly that we do not accept absence of knowledge as being a sufficient defence in itself. We do not want to en- 1780 courage the practice of turning a blind eye to the type of petrol which one receives. We say that the motorist or the garage proprietor must take reasonable precautions to see that he gets the kind of petrol to which he is entitled. The question of what amounts to reasonable precautions in a particular case will be a matter for the jury or for the justices—people eminently qualified to decide what is reasonable in the circumstances of a certain case. In the case which the hon. Member put, I think that if I were a justice I might ask, "Did you make any inquiry, before you lent your car to the person who was using it at the time, whether he had coupons for a car of this kind? Did you inquire from him what his source of petrol would be? What right had he to get petrol for use in a private motor vehicle? Did you yourself provide him with coupons to enable him to get the appropriate kind of petrol?" If a court, after asking questions of that sort, came to the conclusion that probably—not certainly, but probably—the defendant had taken reasonable precautions to see that only the appropriate kind of petrol was used in the car, then that man would be entitled to be acquitted.
§ Mr. Gage
I agree with the Attorney-General, but his parallel between this case and the receiving cases falls to the ground. Questions of that kind could be put to a person charged with receiving stolen goods. That person has to show, "I did not know that those goods were stolen." This takes the matter one step further. One has to say not only that one did not know, but that one had taken all reasonable precautions to find out. That is an advance, a step forward. It is no use for the Attorney-General to argue that this is the same position as that which exists in receiving cases, because it puts a heavier burden on the defence. I hope that the Attorney-General will think again about this Amendment and accept it.
§ Mr. Henry Strauss (Combined English Universities)
By some of his examples the Attorney-General has shown that in his view, if the defendant can show, in effect, that he is an honest man, that will be good enough. Is the right hon. and learned Gentleman certain that his wording has provided for the case where the defendant has given his consent but that consent has been obtained by fraud? I am certain that the Attorney-General will 1781 see the sort of point I have in mind. Suppose the colour has been removed from the commercial petrol and that petrol—that is, the wrong sort of petrol—has been put into the defendant's tank, but he has consented to his tank being loaded on that occasion with some liquid that was then put in, is the Attorney-General quite sure that he will not have given a consent within the meaning of this Subsection sufficient to justify a conviction?
§ The Attorney-General
I think not, because the consent that would justify a conviction here would be a consent that commercial petrol should be put into his car. One cannot give consent to something about which one does not know. If one's consent had been obtained by
§ fraud, it is not consent at all. I think that that is the correct answer to the question. The hon. and learned Member said that I had suggested that it would be enough to show that the defendant was an honest man. That is not quite enough. He must show that he is an honest man and a careful man. That is the difference between the receiving case and this case. If he appears to the court to be an honest man and he says that he has been a careful man, then probably the result would be an acquittal.
§ Question put, "That the word 'prove' stand part of the Clause."
§ The Committee divided: Ayes, 177; Noes, 87.1783
|Division No. 139.||AYES||5.58 p.m.|
|Acland, Sir Richard||Dumpleton, C. W.||Oldfield, W. H|
|Adams, Richard (Balham)||Ede, Rt. Hon. J. C.||Oliver, G. H.|
|Adams, W. T. (Hammersmith, South)||Edelman, M.||Palmer, A. M. F|
|Allen, A. C. (Bosworth)||Edwards, W. J. (Whitechapel)||Parkin, B. T.|
|Allen, Scholefield (Crewe)||Evans, Albert (Islington, W.)||Paton, Mrs. F. (Rushcliffe)|
|Attewell, H. C.||Evans, John (Ogmore)||Paton, J. (Norwich)|
|Ayles, W. H.||Evans, S. N. (Wednesbury)||Pearson, A.|
|Ayrton Gould, Mrs. B.||Ewart, R.||Peart, T. F.|
|Bacon, Miss A.||Fairhurst, F.||Perrins, W.|
|Balfour, A,||Farthing, W. J||Popplewell, E.|
|Barnes, Rt. Hon. A. J.||Follick, M.||Porter, E. (Warrington)|
|Barstow, P G.||Gaitskell, Rt. Hon. H. T. N.||Porter, G. (Leeds)|
|Barton, C.||Ganley, Mrs. C. S.||Pritt, D. N.|
|Battley, J. R.||George, Lady M. Lloyd (Anglesey)||Pursey, Cmdr H|
|Bechervaise, A. E.||Gilzean, A.||Reeves, J.|
|Bellenger, Rt. Hon. F. J.||Glanville, J. E. (Consett)||Reid, T. (Swindon)|
|Beswick, F.||Gordon-Walker, P. C.||Rhodes, H.|
|Bevan, Rt. Hon. A. (Ebbw Vale)||Granville, E. (Eye)||Ridealgh, Mrs. M.|
|Binns, J.||Grey, C. F.||Robens, A.|
|Blenkinsop, A.||Guest, Dr. L. Haden||Roberts, Goronwy (Caernarvonshire)|
|Blyton, W. R.||Gunter, R. J.||Rogers, G. H. R.|
|Bowen, R.||Guy, W. H.||Ross, William (Kilmarnock)|
|Bowles, F. G. (Nuneaton)||Hall, Rt. Hon. Glenvil||Royle, C.|
|Braddock, T. (Mitcham)||Harrison, J.||Sharp, Granville|
|Bramall, E. A.||Hastings, Dr. Somerville||Shawcross, Rt. Hn. Sir H. (St. Helens)|
|Brook, D. (Halifax)||Haworth, J.||Silverman, J. (Erdington)|
|Brooks, T. J. (Rothwell)||Hicks, G.||Simmons, C. J.|
|Brown, T. J. (Ince)||Holmes, H. E. (Hemsworth)||Skeffington, A. M.|
|Bruce, Maj. D. W. T.||House, G.||Skeffington-Lodge, T. C|
|Byers, Frank||Hoy, J.||Skinnard, F. W.|
|Callaghan, James||Hudson, J. H. (Ealing, W.)||Smith, C. (Colchester)|
|Castle, Mrs. B. A.||Hughes, Hector (Aberdeen, N.)||Snow, J. W.|
|Chamberlain, R. A||Hughes, H. D. (W'lverh'pton, W.)||Soskice, Sir Frank|
|Champion, A. J.||Hynd, J. B. (Attercliffe)||Sparks, J. A.|
|Chetwynd, G. R.||Irvine, A. J. (Liverpool)||Stamford, W.|
|Cluse, W. S.||Jeger,, Dr. S. W. (St. Pancras, S. E.)||Stross, Dr. B.|
|Cobb, F. A.||Jenkins, R. H.||Stubbs, A. E|
|Cocks, F. S.||Jones, D. T. (Hartlepool)||Swingler, S.|
|Collindridge, F.||Kinley, J.||Sylvester, G. O.|
|Comyns, Dr. L.||Lawson, Rt. Hon. J. J.||Symonds, A. L.|
|Crawley, A.||Levy, B. W.||Taylor, H. B. (Mansfield)|
|Crossman, R. H S||Lipson, D. L.||Taylor, R. J. (Morpeth)|
|Daggar, G.||Lipton, Lt.-Col. M.||Taylor, Dr. S. (Barnet)|
|Daines, P.||Longden, F.||Thomas, George (Cardiff)|
|Dalton, Rt. Hon. H.||McAdam, W.||Thorneycroft, Harry (Clayton)|
|Davies, Rt. Hn. Clement (Montgomery)||McGhee, H. G.||Thurtle, Ernest|
|Davies, Edward (Burslem)||McLeavy, F.||Tiffany, S.|
|Davies, Ernest (Enfield)||Mallalieu, E. L (Brigg)||Titterington, M. F.|
|Davies, Haydn (St. Pancras, S. W.)||Mallalieu, J. P. W. (Huddersfield)||Tolley, L.|
|Davies, S. O. (Merthyr)||Manning, Mrs. L. (Epping)||Turner-Samuels, M.|
|Deer, G.||Mellish, R. J.||Ungoed-Thomas, L.|
|de Freitas, Geoffrey||Mitchison, G. R.||Vernon, Maj. W. F.|
|Diamond, J.||Monslow, W.||Viant, S. P.|
|Dodds, N. N.||Moyle, A.||Walkden, E.|
|Donovan, T.||Nichol, Mrs. M. E. (Bradford, N.)||Wallace, G. D. (Chislehurst)|
|Weitzman, D.||Whiteley, Rt. Hon. W.||Young, Sir R. (Newton)|
|Wells, P. L. (Faversham)||Willey, F. T. (Sunderland)||Zilliacus, K.|
|Wheatley, Rt Hn. J. T. (Edinb'gh, E.)||Williams, J. L. (Kelvingrove)|
|White, C. F. (Derbyshire, W.)||Woodburn, A.||TELLERS FOR THE AYES:|
|White, H. (Derbyshire, N. E.)||Wyatt, W||Mr. Joseph Henderson and|
|Amory, D, Heathcoat||Hogg, Hon. Q.||Orr-Ewing, I. L.|
|Assheton, Rt. Hon. R||Hollis, M. C.||Peake, Rt. Hon. O.|
|Baldwin, A. E.||Howard, Hon. A.||Peto, Brig. C. H. M|
|Beamish, Maj. T. V. H.||Hudson, Rt. Hon. R. S. (Southport)||Pickthorn, K.|
|Boyd-Carpenter, J. A.||Hutchison, Lt.-Cm. Clark (E'b'rgh, W.)||Pitman, I. J.|
|Bracken, Rt. Hon. Brendan||Kingsmill, Lt.-Col. W. H.||Poole, O. B. S. (Oswestry)|
|Bromley-Davenport, LI.-Col. W||Lambert, Hon. G.||Prescott, Stanley|
|Buchan-Hepburn, P. G. T.||Lancaster, Col, C. G.||Ramsay, Maj. S.|
|Butcher, H. W.||Langford-Holt, J.||Rayner, Brig. R.|
|Butler, Rt. Hn. R. A. (S'ffr'n W'ld'n)||Legge-Bourke, Maj. E. A. H.||Raid, Rt. Hon. J. S. C. (Hillhead)|
|Carson, E.||Lloyd, Setwyn (Wirral)||Robinson, Roland|
|Challen, C.||Low, A. R. W.||Ropner, Col. L.|
|Channon, H.||Lucas-Tooth, Sir H.||Ross, Sir R. D. (Londonderry)|
|Clarke, Col. R. S.||MacAndrew, Col. Sir C.||Shepherd, W. S. (Bucklow)|
|Conant, Maj. R. J. E||MacDonald, Sir M. (Inverness)||Smith, E. P. (Ashford)|
|Cooper-Key, E. M.||Maclay, Hon. J. S.||Smithers, Sir W.|
|Corbett, Lieut.-Col. U (Ludlow)||Maclean, F. H. R. (Lancaster)||Stanley, Rt. Hon. O.|
|Crosthwaite-Eyre, Col. O. E||MacLeod, J.||Strauss, H. G. (English Universities)|
|Crowder, Capt. John E.||Maitland, Comdr. J. W||Studholme, H. G.|
|De la Bère, R.||Manningham-Buller, R. E||Sutclife, H.|
|Drewe, C.||Marlowe, A. A. H.||Thorp, Brigadier R. A. F|
|Fraser, Sir I. (Lonsdale)||Marsden, Capt. A.||Turton, R. H.|
|Gage, C.||Marshall, D. (Bodmin)||Vane, W. M. F.|
|Galbraith, Cmdr. T. D||Mellor Sir J.||Webbe, Sir H. (Abbey)|
|Gomme-Duncan, Col. A||Morrison, Maj. J. G. (Salisbury)||Wheatley, Colonel M. J. (Dorset, E.)|
|Grimston, R. V.||Morrison, Rt. Hon. W. S. (Cirencester)||Willoughby de Eresby, Lord|
|Harden, J. R. E.||Mott-Radclyffe, C. E.||Winterton, Rt. Hon. Earl|
|Harris, F. W. (Croydon, N.)||Neven-Spence, Sir B|
|Head, Brig. A. H.||Odey, G. W.||TELLERS FOR THE NOES:|
|Hinchingbrooke, Viscount||O'Neill, Rt. Hon. Sir H||Sir Arthur Young and|
Question put, and agreed to.
§ The Deputy-Chairman (Mr. Hubert Beaumont)
It would I think be convenient to take the next two Amendments together.
§ Mr. Manningham-Buller
I was going to suggest a little more than that, Mr. Beaumont. I would suggest that the Amendments to page 2, line 3, leave out "such," and insert "reasonable"; line 4, leave out from "pump," to end of line 6; line 10, leave out "such" and insert "reasonable"; and line 11, leave out from "supply," to end of line 12, be taken together. These four Amendments raise the same point, and, in acting as we are, in the spirit of good will and cooperation, I think it might be for the convenience of the Committee if all were dealt with together.
§ Mr. Manningham-Buller
I beg to move, in page 2, line 3, to leave out "such," and to insert "reasonable."
The object of the four Amendments is the same. In view of what the right hon. and learned Gentleman said so repeatedly in discussing the last Amendment, I think he will find it difficult to put forward a 1784 case for the refusal of these Amendments. He has said several times that all that a person who is charged with having red petrol in his pump will have to show, apart from the fact that he did not know it was there and that it was not put in with his consent or connivance, is that he exercised reasonable care, and that he has to be both honest and careful. When one looks at Clause 1 and its provisos, one finds that the word "reasonable" is not there at all. What is, in fact, provided is something more than reasonable—that he has to exercise "all such diligence" to prevent the petrol being in the pump—as he ought to have exercised having regard to all the circumstances.When one comes to examine how petrol gets into a particular car, it is easy for a court to say, looking back on the circumstances, "Well, if you had done this or that, the petrol would not have got into the pump," and, if they could find some method by which the owner of the garage could have prevented that petrol getting into the pump, then they would not be entitled to find that he exercised "all such diligence" in preventing the petrol getting into the pump. Bearing in mind what the right hon. and learned Gentleman has said so repeatedly—that 1785 there should be reasonable care—I suggest that the meaning of this proviso will be made much clearer and much easier for magistrates to understand if the Amendment is accepted. The first proviso would then read—and that he exercised all reasonable diligence to prevent the petrol being in the pump.In the case of the second proviso, it would read—and that he exercised all reasonable diligence to prevent such supply"—and that is the proviso dealing with the case of supply from the pump into the car. I do not know that I need talk at any great length in moving this Amendment. I am sure he will appreciate that I could have put my arguments in support of the Amendment at considerably greater length, but, in view of the fact that it adopts the very phraseology which the Attorney-General used himself in the last discussion, I hope tie will accept it.
§ The Attorney-General
The Committee will find that I shall be only too ready to accept any Amendment which is reasonable and improves the Bill. I think this Amendment is one with that effect. I do not think it alters the Clause substantially, but it certainly makes the drafting better and simplifies the Clause. I am glad to accept it, and I am obliged to the hon. and learned Gentleman for moving it.
§ Amendment agreed to.
§ Amendment made: In line 4, leave out from "pump," to end of line 6.—[Mr. Manningham-Buller.]
§ Mr. Manningham-Buller
Would it be appropriate, Mr. Beaumont, to take the second Amendment to line 10 with that to line 11? There is another Amendment which comes before these.
§ The Deputy-Chairman
It is necessary to take the other Amendments on the Order Paper before we come to that to line 10.
§ Mr. Manningham-Buller
I beg to move, in page 2, line 10, after "connivance," to insert:or that he genuinely believed that the vehicle was not a private motor vehicle.This Amendment raises a different point, one which has already been slightly touched upon by my hon. and learned Friend the Member for the English Universities (Mr. H. Strauss). The right hon. 1786 and learned Gentleman the Attorney-General, in the Second Reading Debate, revealed that we might have one type of vehicle sometimes entitled to white petrol and sometimes entitled to red petrol. We might have the same vehicle, having precisely the same appearance in the hands of one owner getting white petrol, and, in the hands of another, getting red petrol. That is what the right hon. and learned Gentleman told us—that the same type of vehicle might be drawing different kinds of petrol. Obviously, that may cause considerable difficulty to a garage proprietor, and, we might well have the case where a garage proprietor was misled or tricked into supplying red petrol into a vehicle which, in fact, was not entitled to have that red petrol.
All this Amendment seeks to do is to make it clear for the court—and, here again, the burden lies upon the accused garage proprietor—that, if the accused satisfies the court that he genuinely believed that the man driving this type of vehicle, many of which would get red petrol, was entitled to red petrol he would be entitled to be acquitted. The right hon. and learned Gentleman said earlier that it was his view of the law that consent obtained in these circumstances by fraud would not be operative. This Amendment is a way of drawing to the attention of magistrates throughout the country the fact that, if the man genuinely believed his consent was obtained by fraud, he would be entitled to be acquitted. We do, however, get this difficulty. Some courts may say, "We think you were tricked into it, if, in fact, you consented." There might be the trouble of a wrong conviction and the necessity of taking the matter higher. The purpose of this Amendment is to clarify the situation again and to be a guide and a signpost to those who have to administer this rather complicated Measure when it becomes law.
§ 6.15 p.m.
§ The Attorney-General
I am obliged to the hon. and learned Gentleman for this Amendment because it calls attention to an important point, about which we are anxious to avoid any of the difficulties or dangers which he envisages. As I am about to explain, I think we have probably succeeded in this way and I hope I can set his fears at rest. We propose by the regulation to define a private 1787 motor vehicle in the same way as the definition in the Road Traffic Act, 1934. I think that in one of the Schedules to that Act the definition is given as:vehicles constructed solely for the carriage of passengers and their effects … adapted to carrying not more than seven passengers exclusive of the driver.…It is intended to bring into that definition the ordinary private motor car, which is obviously a private motor car from its appearance and construction; and to include also the motor bicycle, the taxicab—constructed as a private motor car but used possibly for commercial purposes—and the private hire car. Those are the vehicles which will be "private motor vehicles" for the purposes of this Bill.
§ The Attorney-General
The utility van or shooting brake and that kind of vehicle will not be a "private motor vehicle" for the purposes of the Bill. Consequently, offences will not be committed with these vehicles under this Measure. There may be other questions about the coupons used under the Control of Fuel Order, but no offence will be committed under this Bill if red petrol is acquired for these vehicles.
§ Mr. R. S. Hudson
I would like elucidation on that point. Surely the Minister said—and I think it has been repeated by the Attorney-General—that the owner of a utility van would have to choose or opt whether he would be considered in the category of the private motor vehicle or the commercial vehicle. From what the Attorney-General has just said, I gather that he is taking away that option and that the utility vehicle will not be considered as a private vehicle for this purpose.
§ The Attorney-General
No. We were so impressed by the weighty arguments used by the right hon. and learned Gentleman that we gave further consideration to the matter. We decided the more appropriate and convenient course was to treat the utility van—the shooting brake type of vehicle—as not being a private motor vehicle for the purposes of the Bill, with the result that offences are not likely to be committed with such vehicles. It will remain an administrative matter, as it is now, what type of coupon it shall get, whether used for private, farming or any other purpose. These vehicles will be 1788 taken out of this Bill and will be entitled to use red petrol if the appropriate coupons are issued.
§ The Attorney-General
Yes, also private. You cannot have red into white, but you can have white into red.
§ Mr. Manningham-Buller
That explanation very largely relieves my fears but I would like to ask a further question. Vehicles are now being divided into categories by definitions from an earlier statute. I am thinking of the position of the boy who is working the petrol pump. Will there be any individual mark on the type of vehicle which comes within the category of the dual purpose vehicle to show him that he is safe in putting red petrol into that vehicle? Otherwise, people who are entitled to red petrol may have difficulty in finding a garage proprietor who is willing to take the risk of supplying him. It would be very much easier if we could be told that the ordinary garage attendant can tell whether a vehicle comes within the Schedule, or will be a vehicle outside the Schedule and entitled to red petrol. If this position is easily distinguishable by the petrol pump operator my fears will have been relieved and I shall be glad to ask leave to withdraw the Amendment.
§ The Attorney-General
We had not contemplated an identifying mark on vehicles but the point which has been made by the hon. and learned Gentleman is one of substance. We want to avoid any difficulty or inconvenience, both to the garage proprietors or attendants and to the motorists. We will consider the matter afresh to see whether we can make the position even clearer than it is now. In general, the garage proprietor will know that if the vehicle is a private motor vehicle it is not entitled to red petrol.
§ Mr. Turton
Surely the new order announced by the Government makes nonsense of the whole Act? A very large number of surplus Army P.U's. have been fitted up and used as private motor cars. It is difficult to distinguish many of them from ordinary private vehicles. They will have the great advantage of running on red petrol, and garage proprietors will be told that if they put red petrol into them they are not committing offences; but if they put red petrol into a vehicle which is exactly similar in appearance they will be fined £500. The new 1789 decision of the Government will make the Bill unworkable in local garages. Therefore, I ask that the words proposed in the Amendment, which are reasonable, should be inserted.
I can foresee another difficulty for the garage hand in not knowing whether he should put red or white petrol into a vehicle. I gather that all vehicles carrying trade plates are to be allowed to use red or white; if that is not so I hope the Minister will deny it. I am reading from the instructions he has sent out to all garages at the weekend. If that is the case—if, in fact, the motor trade have prevailed upon him to allow all trade vehicles to have red or white petrol—the position will be very difficult for the busy garage man: he sees an Austin 10 drawing up, for which white petrol is asked and given; the next one asks for red and the garage man may think it has trade plates; the next one comes up and requires red petrol and probably has another trade plate. Must the garage man be fined £500 for making that mistake on a busy afternoon? The Government are making the difficulties of garage employees unnecessarily great. I can understand their earlier distinction of white petrol for a private car and red petrol for a lorry or commercial vehicle; but they are now saying that some cars, which look exactly the same as private cars, are to have red petrol merely because they have trade plates. Many utility vans and shooting brakes are regarded and accepted as private vehicles—I should not say on pleasure bent, although we do see them going to football matches and to the races. To say that they are not private vehicles at all, but are commercial vehicles which will carry red petrol, is making the Act far too difficult for garage owners. I hope the Government will reconsider these decisions and will include a safeguard for the employees as is suggested by the Amendment.
§ The Attorney-General
I have said that we will consider this matter further to see whether any other provision can be made to remove any possibility of doubt. In imposing a scheme of this nature, however, there must be some degree of care on the part of both the motorist and the garage proprietor to see that commercial petrol is not supplied to private cars. No very heavy burden is imposed on a garage hand to go round to the front of a vehicle, 1790 for which he is handed red coupons and which appears to be a private motor car, to see if it has trade plates. If it has, he will be entitled to honour those coupons; if not, he will know it is a private vehicle which is not exempt from the provisions of the Bill.
If the garage hand supplies red petrol to the utility van or shooting brake, he cannot be convicted of an offence under this Bill. There is no question of his being fined £500 because no offence will have been committed. The vehicle is not a private one within the definition provided and, therefore, the supply to that vehicle of commercial petrol will not be an offence under this Measure. As I have undertaken to do so, I will look into the whole question.
§ Mr. Pickthorn (Cambridge University)
Why cannot we have the definition included in the Bill—it is already in a statute—and not rely upon ministerial assurances?
§ The Attorney-General
Precisely for the reasons we have been discussing. There may be difficult cases and we want an opportunity of discussing the whole matter with the motoring trade associations to get the regulations as right as we can. We want also to retain the power to vary the definitions if it turns out that there is the kind of loophole or difficulty envisaged by some hon. Members.
§ Mr. Manningham-Buller
No one from this side of the Committee has dissented from the proposition that a duty of exercising care shall be placed both upon the motorist and the garage proprietor. The right hon. and learned Gentleman has appreciated the substance of our point and has said he will carefully consider the matter again. I am sure he does not wish to see a man convicted who genuinely endeavours to be both honest and careful. Relying upon his assurance, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Mr. Manningham-Buller
I beg to move, in page 2, line 10, to leave out "such," and to insert "reasonable."
§ Sir H. Lucas-Tooth
Would I be in Order in raising a small point on these Amendments which is slightly different from the matters we have been discussing?
§ The Deputy-Chairman
It would be better to discuss the point on the Motion, "That the Clause stand part."
§ Amendment agreed to.
§ Amendment made: In line 11, leave out from "supply," to end of line 12.—[Mr. Manningham-Buller.]
§ Motion made, and Question proposed, "That the Clause, as amended, stand part of the Bill."
§ 6.30 p.m.
§ Sir H. Lucas-Tooth
The second proviso of this Clause deals with a slightly different position from the first in that it is concerned with the taking of petrol from a pump and putting it into the tank of a car. Under the first proviso it has to be assumed that the proprietor of the garage himself would be directly responsible. That would be a large transaction in the ordinary way, involving the pouring of many gallons from a substantial vehicle into a substantial tank, while in the other case, normally speaking, it would be a mere garage hand—and I do not use the word in any disrespectful sense but as someone who has not got the same sense of responsibility as would the owner of the garage—who would be responsible for the operation.
The Clause is concerned only with the person who is actually carrying out the supplying of motor spirit, and I imagine, therefore, that the garage hand, no matter how flagrant his crime or however deliberately it is done, could not be made liable for any offence under this Clause. So there is the position where the garage hand will be free under this Clause to commit an offence which might land the owner of the garage into the commission of a serious offence attendant with serious penalties.
The second proviso provides that any person charged with the offence mentioned in paragraph (b) has to prove:that the commercial petrol was supplied without his consent or connivance and that he exercised all diligence to prevent such supply as he ought to have exercised having regard to all the circumstances.1792 I should like to ask the Government what kind of diligence is to be required in the case of the proprietor of a garage employing a number of hands. Will it be sufficient if he merely tells his employees that they are to take care? That is probably as far as it would be reasonable to go in the ordinary way.
If that is the position I do not see how the Government are ever going to convict a garage proprietor at all, because all he need do unless actual connivance is proved against him—and the difficulty of that is clearly shown in the report on which this Bill is based—is to say, "I told my employees not to do this, and they have done it without my sanction." In this instance I seem to be arguing on the side of the Government, but where a Bill is reasonable there is generally a desire in all parts of the Committee to strengthen it. I am not satisfied that this amended Clause will make the position of the garage proprietor clear. Could we be told whether it would be sufficient merely for him to issue an instruction or whether it is the intention of the Government that he should show something more than that? If that is the intention it may seriously interfere with the conduct of garages throughout the country.
§ Viscount Hinchingbrooke
I was not present during the whole of the proceedings on this Bill, but I have been here a sufficient time to hear the Government make three pronouncements which will upset the distinction between white and red petrol and will lead to black market operations on a considerable scale, as a result of which the law will be brought into serious contempt. As we proceed with this Bill I become more and more convinced that the whole thing is nonsense and will never operate in the country. The only possible course for the Government would be to reverse their decisions on the whole of this petrol scheme and to restore some measure of free economy to the country.
What are the three statements? First, there was the announcement that they would make it possible to collect commercial coupons against white petrol in rural areas. That means that petrol pumps in those areas have got to be watched closely if that is not to lead to black market operations in rural areas. Next, the Government said that cars with trade plates would get red or white petrol 1793 as their owners chose. That means, in effect, that such cars will be moving petrol pumps wherever they operate throughout the country with consequent possibilities of black market operations. Third, the Government are going to allow red petrol to be put into private utility vans. Garage hands who will supply that petrol are exonerated, and in the next Clause we will see what happens to a private user of a private utility van. Is he going to be penalised anyway, and, if so, what will be the effect of it on private vehicles which are borderline cases. He will as a right have red petrol in his tank, and that is another area for black market operations. This Bill is leading us into a deplorable situation, and as we proceed I hope we on this side of the Committee will watch is closely Clause by Clause.
§ Mr. Manningham-Buller
I want to ask two questions, or possibly they might be taken as one question. Many garages are limited companies. The limited company under this Bill has an unlimited liability so far as any fine for any offence is concerned. Limited companies are both big and small. I should like to know whether these provisos, particularly the first one, afford any defence to the limited company which is a garage proprietor. How does a limited company prove that petrol is put into a pump without its consent or connivance? How does a limited company prove that it does not know that the petrol was there? If it be the case, as I suspect it is, that this proviso, in fact, affords no defence at all to any garage proprietor who is a limited company, it should be clearly stated. If, on the other hand, there is some way by which the company can prove a negative—that a pump in a particular garage belonging to it contained red petrol of which it did not know—some indication ought to be given to the Committee what that proof is.
§ The Attorney-General
Perhaps I might deal first with the last point raised by the hon. and learned Member for Daventry (Mr. Manningham-Buller). Judging from his smile, he does not put his point forward as a very serious one. It is a point that has arisen under many Acts which have been on the statute book for a score of years and more and it has operated without due difficulty. I am reminded that the Coal Nationalisation Act is one of them. Many statutes im- 1794 pose criminal liabilities on companies where knowledge is an essential ingredient of the offence. In such cases the managing director or the manager may be considered the alter ego of the company. Where the garage is owned by a company the garage manager or managing director will have to show that he has taken reasonable precautions, provided satisfactory supervision and so on. Having indicated to the court that he had taken those steps, the court will then have to decide whether the offence was committed with his consent or not. I have no doubt that the provisions under Clause 2 will apply equally to corporations and private individuals.
I was also asked whether the provisions would apply to a garage proprietor whether a corporation or a private person, and what would he have to do in order to satisfy the court that he had taken reasonable steps to ensure that the statute had been complied with. That, of course, is essentially a matter for the courts to deal with and decide on the circumstances of each case. It is not a matter on which it would be possible or proper for me to attempt now to lay down any rules. The court would inquire what instructions had been given or what supervision was provided in order to make sure that the instructions were carried out. That is precisely the type of question that arises in innumerable statutes like the Coal Nationalisation Act, the Food and Drugs Act, the Licensing Acts and so on, where masters are responsible for the acts committed by their servants. One must leave it to the courts to decide what was reasonable in the circumstances of each particular case.
I was asked what would be the position of a garage hand. A garage hand would, of course, he liable under the provisions of Clause 3 (b) to which we have still to come. He might also be liable in aiding and abetting the commission of an offence by a garage owner under Clause 1, but under one Clause or the other the garage hand, who supplied red petrol to a private vehicle, would certainly be liable.
Finally, there was the point raised by the noble Lord the Member for Southern Dorset (Viscount Hinchingbrooke). He appears to take the view that because there still remain some possible loopholes, which we have not been able to stop up, for the commission of black market 1795 offences, therefore, no steps should be taken at all to put down and suppress the black market, which undoubtedly exists at the present time. That is not the view taken on this side of the Committee, and I venture to think that it is not the view taken generally on the other side of the Committee. I hope it will be common ground that it is necessary to put down by all possible means the existing black market, and if there still remain a few loopholes for evilly disposed persons to commit these offences, that is indeed to be regretted, but it is no reason why the door should be left wide open for the commission of offences in the manner hitherto possible.
§ Clause as amended, ordered to stand part of the Bill.