HC Deb 10 May 1948 vol 450 cc1875-83
The Attorney-General

I beg to move, in page 7, line 3, to leave out "or."

It would be convenient to the Committee, I think, to take this Amendment together with the next Amendment in page 7, line 5. These two Amendments are also associated with three Amendments to Clause 8, and I think I can hardly explain the meaning of these two unless I make some reference to the Amendments to Clause 8, in page 7, line 47; and in page 8, lines 8 and 10.

The object of these Amendments is to enable the enforcement officers appointed by the Minister to assist the police in the administration of this Bill, to have the right to enter and be protected with the police against the possibility of obstruction in the exercise of their duties. The two Amendments to Clause 6 provide for penalties for obstruction whether it is obstruction of the police or obstruction of the enforcement officers in the execution of their duties.

The Amendments to Clause 8 provide, firstly, that the enforcement officers should have the right of entry; secondly, that they should be entitled to take samples; and thirdly, there is added the offence of obstruction. Having explained the purpose of this series of Amendments, it only remains to add that under the existing law as applied by the Defence Regulations and the Control of Motor Fuel Order, enforcement officers of the Ministry of Fuel and Power already have the power to enter premises other than private dwelling houses, and this Clause gives them no powers in relation to private dwelling houses. That being the position, and since they have already power to go into garages where offences might be detected, it seems illogical to deprive them of the right to investigate under this Bill when they can already investigate offences committed under the Control of Motor Fuel Order. It is the intention of the Minister—and I desire to make this quite clear to the Committee—that in general the burden of enforcement of this Bill should fall on the police; but although that is the general intention here, there seems to be no reason to exclude the assistance which the enforcement officers, with their great knowledge of the application of the Motor Fuel Order, may be able to offer. Moreover, the position would seem to be distinctly anomalous if one were to retain the right of entry possessed already under the Control of Motor Fuel Order, but did not extend it to this kind of offence.

Take, for instance, the enforcement officer—there will be only a comparatively small number of them—who goes to a garage in the course of his duties, perhaps to check petrol coupons with the supply that is held, or for some other matter arising under the Control of Motor Fuel Order, and finds that in one of the pumps, the contents of which he is measuring, as he is entitled to do, red petrol is present, instead of white petrol, as ought to be the case. What is he to do in such a case? Is he to fold his tent like the Arabs, and as silently steal away, and say nothing about it?—or is he to perform what one would have thought it would be the duty of the enforcement officer to do, and take a sample of the red petrol, and then submit the matter to the police, or, perhaps, to his Ministry, but, at all events, take appropriate steps in order that the matter may be brought to light?

It may well be—and this seems to us a very likely thing—that the investigation of the general administration of the Control of Motor Fuel Order by the enforcement officers may lead to the discovery of this kind of black market offence, and it does seem to us desirable, therefore, that the enforcement officers should not be deprived under this Bill of the powers and functions which they already possess under the existing law in regard to the enforcement of the rationing system.

Mr. Manningham-Buller

The Attorney-General has not given any indication of the number of enforcement officers who will be entitled to act under this Clause if it is amended.

The Attorney-General

I did say the number would be small. It will be a maximum, I am instructed, of 80.

Mr. Manningham-Buller

Now that the Minister of Fuel and Power is here, no doubt we can make quite certain that that information is accurate, and that that number will in no circumstances be increased. Of course, the number is important in viewing this proposal. I feel I should point out that the Government have not hesitated to discard the Russell Vick Report where the Russell Vick Report does not come up to their proposals. On page 20 of the Report, one finds the recommendation that the police should be given power to enter premises in order to take samples of petrol; but no recommendation at all is made that officials of the Ministry of Fuel and Power should be given that power.

Indeed, I must say I thought the case made out for this extension of power—as, indeed, it is—for people to go on other people's premises was very thin indeed. The right hon. and learned Gentleman asked what an enforcement officer is to do if he incidentally comes across red petrol in a tank. I imagine he could do, with out this provision, much the same thing as any other civilian can do if he finds anyone apparently guilty of a criminal offence—report the matter to the police, and get them to take action. Bearing in mind that the Russell Vick Report recommended that the enforcement should rest with the police, I am surprised that at this stage the right hon. and learned Gentleman should seek to obtain increased power for the officers of the Ministry of Fuel and Power. What means of identification will there be to prevent a lot of unauthorised people pretending to be enforcement officers from going on to premises where petrol is stored, where they may be tempted to go in the present shortage in the hope of being able to acquire some illegally? I think this pro- posal is really unnecessary. I am sorry the hon. and learned Gentleman saw fit to introduce it at this late stage.

Amendment agreed to.

11.15 p.m.

Mr. Boyd-Carpenter

I beg to move, in page 7, line 21, to leave out Subsection (3).

This Amendment is one which should appeal to the Attorney-General. He has been arguing with his habitual force through most of the afternoon and early evening for restricting the discretion of the courts. This Subsection which it is suggested should be left out is a Subsection which gives to the courts an unusual discretion. It provides, where the defendant is a body corporate, that there shall be no limit to the fine which the court can impose. That is a remarkable discretion to give to a court. I have not gone into the precedents in previous statutes, but I have no doubt the right hon. and learned Gentleman will be prepared to tell us where and in what particular circumstances that has been done before.

It is certainly curious that, where an individual is charged under this Clause, however wealthy he may be, there is a limit to the fine which can be imposed; and where the defendant is a body corporate, however poor, there is no limit. That is a very remarkable provision. It seems to me on principle to be an unsatisfactory one. There is also a certain practical inconvenience about it. Where the amount which can be imposed by way of fine is set out in a statute, that serves as a guide to the court in assessing a penalty. Obviously, in the case of a most serious matter, they might be tempted to give the maximum. Where it is of a medium degree, they might impose a fine of about half the maximum, and so on.

Under this Subsection the courts would be deprived of that guidance and are given no indication whatsoever of the intentions of Parliament in dealing with this matter. If the Subsection were left out, a body corporate would be dealt with in exactly the same way as other defendants—the fines would be the same as those set out in the Bill. That seems a more satisfactory way of dealing with the matter than to single out bodies corporate and expose them to unlimited fines. If there was any force in the learned Attorney- General's arguments on previous Amendments that courts require the strong guidance of Parliament as to what they should do, that argument has its greatest possible validity in connection with this matter. I find it a little difficult to understand why the penalty in this case should be unlimited.

The Attorney-General

I always find myself in danger of being seduced from the path of rectitude by the attractive arguments of the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) but really there is nothing at all novel in this provision. I do not need to refer to statutes, though there are statutes about it. It is a fact in common law that there is no limit to the fine which may be imposed in the case of misdemeanours.

Mr. Boyd-Carpenter

I asked the right hon. and learned Gentleman for precedents in statutes passed by this House. They are the only precedents material in dealing with the Bill.

The Attorney-General

I was pointing out that the common law provides no limit, apart from the limit imposed by Magna Carta, that a penalty may not be excessive or unreasonable. There is no limit to the fines which may be imposed in common law for any misdemeanour. When one comes to statutes, there is a number of modern statutes, some of them passed in the last Parliament and some passed in this Parliament. For instance, the Goods and Services (Price Control) Act, 1941. There are, of course, statutes dealing to some extent with the kind of problem with which we have to deal here—the problem of securing fair shares for all. There are also the Statistics of Industry Act, the Cotton Control Act, the Exchange Control Act, 1947, and, of course, Defence Regulation 92 (2). All of these provided, in the case of corporations, for fines of unlimited amounts. That being so, we thought it right in this case to have the same provision. But perhaps I should add that fines of unlimited amount can be imposed only upon conviction on indictment; clearly, only the most serious offences will be proceeded against in that way. In the ordinary cases which come before the justices there will be a limit on fines, and one can feel confident that fines much larger than those contemplated will only be imposed in cases which are regarded as being so serious as to merit such procedure.

Amendment negatived.

Mr. Boyd-Carpenter

I beg to move, in page 7, line 41, at the end, to add: For the avoidance of doubt it is hereby provided that where the body corporate was created by or under such Public Act of Parlia word director shall be construed as including any member of a board, executive or commission created by any Public Act of Parliament, the ment. This is an important Amendment, and I should say at the outset that any apparent confusion was due to the fact that I did not expect to be entrusted with so important a matter. The point of this Amendment is, of course, to make it clear that what is sauce for the private goose shall be sauce for the public gander. The various national bodies which control nationalised industries are, of course, bodies corporate. Therefore, on a first reading of the Clause, it would appear that they are already covered by it. But the question arises—and this is a matter upon which I think the Committee would appreciate the guidance of the Learned Attorney-General—whether the members of the boards of a nationalised industry are or are not to be treated as -directors for the purposes of this Clause. They are not, from many points of view, directors. Their position is a special one, and their appointments are in most, if not all, cases, created by a specific allusion in the Act of Parliament by which the industry was nationalised.

Putting the matter at its lowest, there would appear to be some doubt whether the stringent penal provisions which in this Clause are applied to directors are also applicable, as the Bill stands, to the members of these boards—central and divisional—of the nationalised industries. If they are not covered by this provision, it would seem to be quite wrong. There can be no valid reason for making, say, the directors of a vast private organisation such as Messrs. Unilever, criminally liable for the acts of that company if, at the same time, a member of the Transport Commission is not responsible for exactly similar offences committed in an exactly similar way by employees of the Commission.

So far as I am concerned, if the right hon. and learned Gentleman can assure the Committee that members of the boards of nationalised industries are for this purpose considered to be directors, and if therefore they are responsible for the offences committed by the servants of those industries in exactly the same way as directors of companies are liable for offences committed by the servants of those companies, then I shall be happy to withdraw the Amendment. If that assurance cannot be given, then a matter of considerable importance arises.

There is the point to which I have invited attention as to the strictly comparable position of the members of these boards with members of the bigger private companies. But there is also the wider question whether it is intended to differentiate between nationalised industries and private industry on this question. If it is, it is going to make a great breach, not only in the effectiveness of this Measure, but in the tradition of this country that trading bodies should be treated as being equal before the law with individuals and with other trading bodies. That is a matter that would give rise to constitutional implications of the greatest importance. But as the whole discussion of this matter must depend in the first place on the advice which the Attorney-General is able to give the Committee, I do not wish to delay discussion at this stage. If he can give the assurance I am hoping, the matter will not have to go very much further. If he cannot, I have no doubt my hon. and right hon. Friends will desire to press him further.

The Attorney-General

The Clause as drafted covers not only directors but other similar officers. I have no doubt that it is sufficiently wide to embrace the members of these statutory corporations; but as I indicated at the beginning of our discussions that I was prepared instantly to accept any Amendment from the Opposition which was reasonable, or at all events that its principle was reasonable, I am bound to say that I think the principle underlying this Amendment is reasonable, and I undertake to accept it in accordance with the undertaking I gave, and to see that the Clause is looked at in order to make it quite clear in another place that such members of the statutory corporations are embraced within its provisions.

Mr. Boyd-Carpenter

I very much appreciate the attitude the Attorney-General has taken. He has undertaken, as I understand it, to see to it, if it be not already the case, that members both of central and divisional boards of nationalised industries shall have this liability imposed on them. Taking by way of example the Coal Board, that would cover the National Coal Board and the divisional boards. I am assuming I am right, and I understand that he accepts that?

The Attorney-General

I shall look at that, but I shall seek to put members of the statutory bodies in exactly the same position as they would be if the boards were ordinary companies. Whether that would apply to the divisional boards is a matter I should have to look at. I am not going to impose a higher degree of liability on members of these boards, but the same liability.

Mr. Boyd-Carpenter

I think that is satisfactory. Nobody would press for a higher degree of liability. In these circumstances, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Motion made, and Question proposed, "That the Clause, as amended, stand part of the Bill."

11.30 p.m.

Sir H. Lucas-Tooth

I wanted to ask a more general question following the point raised by my hon. Friend. Where we have a very large undertaking, a nationalised body, or it may be a large company, one may find an intermediate degree of responsibility. As I read the Clause, I think the criminal responsibility merely touches those who hold office at the top tiers, only general managers, directors and secretaries of the actual governing body of the concern. It may be that responsibility rests somewhere in between, some branch manager or possibly the director of a small office at a lower level. I would like to have a statement from the Government whether it is intended that these Clauses should attach any criminal liability in such cases. Then another small point arises. The words used in Subsection (4) … exercised all such diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions in that capacity and to all the circumstances.… have appeared elsewhere in the Bill and have been amended, or there has been an undertaking that they will be amended. Some of those words seem to be desirable in those conditions; on the other hand, the other words are inappropriate. There should be some amendment of these two lines so as to bring them into line with what has been provided for elsewhere in the Bill. I do not suppose that the Government are willing to suggest an Amendment here and now to give effect to that, but I would be glad to hear that they will consider whether action is needed.

The Attorney-General

The hon. Baronet the Member for South Hendon (Sir Hugh Lucas-Tooth) has raised two short points. The answer to the first is that those who are ultimately responsible for the control of a corporation will be liable, under the Clause as drafted, subject to the defence for which provision is there made. Subordinate officers at lower tiers may be liable also for aiding, abetting, counselling or procuring, but the liability imposed under this Clause is a liability on those who are ultimately responsible for the control of the company.

I will look at the words in Subsection (4) with regard to defence. We will have to look at them again in the light of the Amendments moved to earlier Clauses but also in the light of other statutory provisions regarding the criminal liability of directors in cases like these. We will look at them and make any necessary Amendments to bring the Clause into line with the rest of the Bill.

Clause, as amended, ordered to stand part of the Bill.