HC Deb 01 December 1960 vol 631 cc684-95

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Noble.]

8.22 p.m.

Mr. F. Blackburn (Stalybridge and Hyde)

I should like, first, to say to the Solicitor-General how sorry I am that this debate is taking place at what, I know, is a most inconvenient hour for him. I assure him that I am not responsible. I have been waiting here for over three hours, because I did not know what time the previous debate would be concluded.

The Attorney-General came into the case which I am raising when he instituted proceedings in the High Court and later in the Count of Appeal, but it will be necessary for me to outline the events prior to his intervention, not because he has any responsibility for actions taken by the Manchester City Corporation but because I want to know whether he was aware of certain details of the case when he made his decision.

First, I should like to say this. I think that for all of us it is an accepted principle that, as between one citizen and another, not only must justice be done but that it must seem to be done, and if the law is invoked it should be against all known offenders without discrimination.

I am raising tonight the case of two of my constituents, Mr. and Mrs. Harris who, I believe, have been subject to unfair discrimination. I frankly admit that they have on numerous occasions offended against Section 12 of the Manchester Police Regulations Act, 1844, but so have hundreds of other people in Manchester, as I shall later seek to show, yet it is only my constituents who have been proceeded against. As a Member of this House it would be wrong of me to give the impression that I was condoning a breach of the law; it would be equally wrong of me to remain silent when I believe that my constituents have been subject to unfair discrimination.

What would be thought if we revived the old law which imposed a fine on Members of Parliament for nonattendance—a law which, I believe, has never been repealed—and applied it to only two Members and ignored the other 628? Or if in only one or two cases prosecutions were instituted under the law of Elizabeth I which imposed a fine of 1s. for non-attendance at church? I admit that I have gone far into the past for my examples, certainly further than 1844, but they illustrate the point that I am trying to make.

Let me come to this specific case. Early in 1955, Mr. and Mrs. Harris started selling flowers on Sundays outside one of the entrances of Southern Cemetery, Manchester. I should say here that they secured a licence granted by the Manchester Corporation. Where they took their stand, the pavement is 15 or 16 feet wide and they erected their stall against the cemetery railings. It did not project as far as the trees which are growing at intervals along the footway, and, therefore, they could not be said to be impeding the passage of pedestrians. In the vicinity of Southern Cemetery there are three florists' shops which must be open on Sundays, one about 400 yards away from where my constituents had their stall, another about 600 yards away and a third about 900 yards away.

I assumed that my constituents, Mr. and Mrs. Harris, found their venture profitable, and after a time complaints were made to the city council on behalf of the florists about unfair competition, though it should be noted that it was not for this that my constituents were later prosecuted.

In February, 1956, the first of a large number of prosecutions was instituted against Mr. and Mrs. Harris under Section 102. The maximum fine under the Act was £2 and on 22 of the occasions, the magistrates imposed a fine of 2s. 6d. The Manchester Corporation then approached the Attorney-General and he initiated proceedings in the High Court, which were heard before Mr. Justice Salmon. He found for Mr. and Mrs. Harris. I should like to read the concluding words of the summing up of Mr. Justice Salmon, as I think they are very relevant: Undoubtedly it is only in the most exceptional circumstances that any statutory provision can be contravened without public injury. The circumstances of this case are, however, most exceptional. The acts done by the defendants do not on the very special facts of this case tend to injure the public, and indeed I am completely satisfied that no member of the public has been in the slightest degree inconvenienced by the defendants. I am uneasy, too, about the circumstances in which the prosecutions were originally launched. I do not consider that in all the circumstances of this case, an injunction should be granted, and in the exercise at my discretion I refuse an injunction. The case was then taken by the Attorney-General to the Court of Appeal and Lord Justice Sellars, Lord Justice Pearce and Lord Justice Devlin reversed the ruling of Mr. Justice Salmon and granted an injunction against Mr. and Mrs. Harris. Far be it from me to try to interpret between learned judges and the rest of us. My constituents are now in the position that they have a hawker's licence by the Manchester City Corporation which, if they fail to use it for six months, will be taken away from them, and if they do use it they are liable to imprisonment.

I shall now have to go into more details about the case, because I should like to know whether the Attorney-General was aware of all its aspects when he instituted proceedings in the High Court. Was he aware, for instance, that the proceedings appeared to have relation only to a site outside Southern Cemetery? Was he aware that hundreds of other people were prima facie, guilty under Section 102 of the Manchester Police Regulations Act of 1844?

I should like to go back to the period before the prosecution started and to quote certain words of Mr. Justice Salmon. He said: It appears from the letters of the Town Clerk in the agreed correspondence that after the practice … had been going on for many months and had been observed and reported on by the police and by the City Surveyor and Engineer, the unanimous conclusion was reached by the police, the Highways Committee and the Town Clerk that no action could justifiably be taken against the defendants … I should like to read sections of that agreed correspondence, because it is very relevant to the case which I am trying to make. As I said earlier, my constituents started this trading early in 1955. The first letter which I shall read is dated 21st October, 1955, and it is to a certain Councillor Bailey of Manchester, beginning Street Trading. Corner of Barlow Moor Road and Princess Road. It continues: You called to see me some little time ago to inquire about the gentleman from Dukinfield"— that is my constituent— who comes in a lorry every Sunday morning, parks his lorry in the road and then proceeds to sell flowers, and I believe fruit from the footpath. As promised I have made inquiries and I find that Councillor Donovan has been complaining about this practice since April of this year. The position is that the police have kept observation and they report that there is no obstruction to the highway and if this is so, of course, the case is not one which concerns them. But there is a section in the old Highway Act of 1835 and it might be possible for the Highways Committee to take proceedings, and at the request of Councillor Donovan the City Surveyor took observations at the corner of these two roads on Sunday, 4th September, and submitted a report to the Highways Committee at their meeting on 21st September and the Committee decided to take no action. In these circumstances I regret that there is nothing further that I can do. The next letter is that of 28th November, 1955, to Mr. Boan, one of the florists: Thank you for your letter of 26th November which I received today. The activities of which you complain have been the subject of observations by the police and by the City Surveyor and Engineer. They have also been the subject of a report to the Highways Committee as a result of which that Committee came to the conclusion that there was no action which they could justifiably recommend the Council to take; that being so, I am afraid I do not know of any way in which I can help you in the matter. Finally, there is a letter of 13th January, 1956, again to a florist: The Lord Mayor has consulted me about the letter which you wrote to him on 10th January and I have advised him that there is no action which he can take in the matter. He has asked me to write and inform you of this. That was in January, but there was still further pressure, and in February the prosecutions were instituted, not on the ground of unfair competition but under Section 102 of the 1844 Act. This is a compendious Section creating several hundred petty offences. Lord Justice Sellers quoted the relevant parts of this Section, and it is important that I should quote them because I want to know whether the Attorney-General was aware of the very wide range of offences which are quoted under this Section and how many hundreds of people in Manchester must be guilty of offending against Section 102 of the 1844 Act. These are the relevant passages: . . every Person shall be liable to a Penalty of not more than Forty Shillings, who in any Street shall commit any of the following Offences; Every Person who shall place or leave any Furniture, Goods, Wares, or Merahandize, or any Oask, Tub, Basket, Pail, or Bucket, or other Article whatsoever, or place or use any Standing Place, Stool, Bench, Stall, or Show-board on any Footway … Every person who shall place, hang up, or otherwise expose to sale any Goods, Wares, Merohandize, Matter, or Thing whatsoever, so that the same shall project into or over any Footway or Area, or beyond the Line of any House, Shop, or Building at which the same shall be so exposed; Every person who shall slide upon any Footway, or by standing, loitering, or remaining together with other Persons on any Footway without reasonable Cause, or by hawking or exposing for sale any Shell or other Fish, Greengrocery, Meat, or other Article, on or near any Footway, or by any other Means shall obstruct or incommode the free Passage of any such Footway, or who shall insult, jostle, or annoy any Inhabitant or Passenger; It will be seen, therefore, that every barrow boy, every person who offers flowers for sale outside a cemetery or a hospital in Manchester—and I can assure the House that there are quite a number of them—and every shopkeeper who, on the pavement outside his shop, exposes goods for sale is committing an offence under Section 102, yet only my constituents, Mr. and Mrs. Harris, are prosecuted. Why?

I have here a number of photographs, one showing the pitch were Mr. and Mrs. Harris had their stall, one showing litter outside one of the florist's shops, one showing goods exposed for sale on the pavement outside a shop in Oxford Street and another showing motor cars for sale on the pavement outside premises in Downing Street, both the last two cases being in the heart of the city. Anyone who knows Manchester knows that many examples could be found of shopkeepers using the public pavement to display their wares.

It is interesting to note that in the photograph showing cars for sale a policeman is standing happily oblivious of the commission of an offence 2 ft. behind him. Not only are many shopkeepers infringing the law but fruit and flower sellers and many other traders have their barrows and stalls on the streets within the city and often in the most congested parts of it.

Was the Attorney-General aware that hundreds of others were infringing the very law under which my constituents were prosecuted? Was he aware that this was a case if not of victimisation at least of discrimination? Justice has not been done as between one citizen and another. Admittedly, Mr. and Mrs. Harris have broken this law of 1844, but so have hundreds of others, and so are hundreds of others continuing to break it at the present time. It seems to me wrong that my constituents alone should be pilloried and penalised with the harsh terms of the injunction. It is probably true to say that if there had not been in the vicinity florists shops concerned about competition the prosecutions would never have been started.

It is not for me tonight to try to suggest a solution—I should probably be out of order if I tried to do so—but I felt that I owed a duty to my constituents to call attention to what I consider are these acts of unfair discrimination.

8.37 p.m.

Mr. Eric Johnson (Manchester, Blackley)

I apologise to the hon. Member for Stalybridge and Hyde (Mr. Blackburn) for not being here at the beginning of his speech. However, I told him the other day that I had a certain interest in this matter, as Mr. Harris came to see me about it last week. I think that he has been trying to interest various hon. Members representing Manchester constituencies in his case.

I have a good deal of sympathy with Mr. Harris. I have not the same detailed knowledge of the subject as has the hon. Gentleman and I can only repeat what he said. It seems a most extraordinary state of affairs that Mr. Harris will lose his licence to trade if he does not make use of it for six months, and, if he does make use of it, he goes to prison. I can corroborate what the hon. Gentleman has said about what is going on in Manchester now. It seems all the more extraordinary when one can see—

The Solicitor-General (Sir Jocelyn Simon)

On a point of order, Mr. Deputy-Speaker. I am sure that it will be appreciated that I am not responsible in any way for anything that the Manchester Corporation does or does not do. I am solely responsible for the Attorney-General's action in this relator case to which the hon. Member for Stalybridge and Hyde (Mr. Blackburn) referred. In those circumstances I do not know how far my hon. Friend can go.

Mr. Deputy-Speaker (Major Sir William Anstruther-Gray)

I am sure that the House will take note of what the Solicitor-General has said.

Mr. Johnson

I have no wish to exceed the bounds of order. I only wish to corroborate what the hon. Gentleman has said.

Mr. Harris has only been doing what a great many other people are doing now every day, apparently, without risking imprisonment. I hope that some means can be found by my hon. and learned Friend to do something to help Mr. Harris. He has been vary hardly used over this, and has been brought almost to a state of bankruptcy. As I feel very sorry indeed for him, I sought this opportunity to say a few words in support of the hon. Gentleman.

8.41 p.m.

The Solicitor-General (Sir Jocelyn Simon)

The House will appreciate that I am not concerned, nor was my right hon. and learned Friend the Attorney-General, in any way with the prosecutions undertaken by the Manchester Corporation against Mr. and Mrs. Harris, or with the Corporation's alleged failure to prosecute others who may have been breaking the law. As to that, I know nothing. What I have to justify to the House is such action as my right hon. and learned Friend has taken in this matter.

Hon. Members will know that where the penalties imposed by a statute have proved inadequate to secure compliance with its provisions—to secure compliance, in other words, with the provisions that Parliament has laid down—the High Court will grant an injunction to secure that compliance. The result is that infringements of the statute are thereafter liable to be punished as contempts of court.

It is also established law, as hon. Gentlemen know, that an injunction of this kind can be granted only in proceedings which are in form an action at the suit of the Attorney-General. That is to give a certain control over the enforcement of a statute in the event of non-compliance. I emphasise the words "in form", because the Attorney-General is the nominal plaintiff in the action, but, in reality, the action is brought by the complainant, although certainly with the consent and subject to the control of the Attorney-General if he wishes to intervene. In other words, if the complainant seeks the leave of the Attorney-General to institute proceedings in his name, and if he obtains that consent, he thereafter conducts the proceedings himself and is liable for his own costs.

My right hon. and learned Friend first knew of the case of Mr. and Mrs. Harris on 1st July, 1958, when it was referred to him by the Town Clerk of Manchester. The evidence then before my right hon. and learned Friend was that during the preceding two years Mr. Harris had been convicted of 74 offences, and Mrs. Harris of 34 offences, against the section of the Manchester Police Regulation Act to which the hon. Member for Stalybridge and Hyde (Mr. Blackburn) referred. As the House has been told, those offences took place in connection with the setting up of stalls for the sale of flowers in such a manner as … to incommode the free passage of … the footway . . In answer to the hon. Gentleman, I would say, in the first place, that that was the only case that was brought to the notice of my right hon. and learned Friend. Secondly, as to whether he knew all the facts at the time, I thought that it might be helpful if I cited a sentence from the judgment of Lord Justice Pearce in the Court of Appeal, when he said: When the Attorney-General decides to bring the action, he has not heard both sides of the matter and he has perforce to exercise his discretion ex parte. It is for the court to hear both sides and, having done so, to exercise its own discretion. That is a matter of common sense which flows inevitably from the position of the Attorney-General in these cases, as I have described.

Mr. Charles Pannell (Leeds, West)

I understand the gravamen of the charge brought by my hon. Friend the Member for Stalybridge and Hyde (Mr. Blackburn) to be that there has been discrimination in this case. In effect, Mr. and Mrs. Harris have been discriminated against under an old law. Before the hon. and learned Gentleman leaves the case, I hope that he will be able to prove to us that Mr. and Mrs. Harris have been dealt with in equity with other offenders.

The Solicitor-General

All I am concerned with is that there has been no discrimination by my right hon. and learned Friend. I can assure the hon. Member and the House of that. But if I can keep within the rules of order in doing so, I will revert to the point to which the hon. Member for Stalybridge and Hyde and the hon. Member for Leeds, West (Mr. C. Pannell) have referred.

The third question that the hon. Member for Stalybridge and Hyde asked was whether my right hon. and learned Friend knew of the terms of the Section. The answer, of course, is that he did. My right hon. and learned Friend, on the information before him, granted his consent to the institution of proceedings in his name; and the hon. Member kindly made it plain that he has no criticism of my right hon. and learned Friend for doing so on the material before him, as was justified by the subsequent course of the action.

The action then proceeded in the ordinary way without any reference to my right hon. and learned Friend. Mr. Justice Salmon, who tried the case, heard all the evidence and reserved his judgment. In doing so, he gave instructions that the Manchester Corporation should send to my right hon. and learned Friend the correspondence to which the hon. Member has referred and which had been in evidence in the action. My right hon. and learned Friend received it on 23rd March.

The correspondence showed that the prosecutions of Mr. and Mrs. Harris had been brought, not out of a public-spirited desire to prevent obstruction of the highway, but in response to the complaints of rival florists in Manchester. The hon. Member was, I think, quite right in the inference and the picture he drew from that correspondence.

When judgment was given in the case—the hon. Member has read the passage—it became apparent that the judge attached some weight to that fact. My right hon. and learned Friend, however, did not consider that it called for any action on his part at the time, and this decision was justified by the subsequent history Of the case.

On 4th May, 1959, the learned judge gave judgment for the defendants, the hon. Member's constituents—that is to say, he refused to grant the injunction which had been sought. On 12th June last year, the Manchester Corporation sought my right hon. and learned Friend's consent to an appeal being brought against the judgment. After considering the facts of the case, the terms of the judgment and the law relating to proceedings of this nature, my right hon. and learned Friend on 17th June gave his consent to an appeal being brought. Again, the hon. Member made it clear that he had no criticism of my right hon. and learned Friend's decision in that connection, which was, as I have suggested, soon to be significantly vindicated. That appeal came before the Court of Appeal on 16th June this year, and on 18th July judgment was given allowing the appeal and granting the injunction restraining Mr. and Mrs. Harris, in effect, from committing further offences against Section 102 of the Manchester Police Regulation Act.

It is right that I should tell the House that the matter has come before my right hon. and learned Friend on one further occasion since then. That was in August this year, when evidence was supplied to him that Mr. and Mrs. Harris had been acting in breach of the injunction and an application was made for his consent to take proceedings to enforce it against them. He gave his consent and the application was made to the Vacation Judge to commit Mr. and Mrs. Harris for contempt. Those proceedings were adjourned, the judge taking the view that, although Mr. and Mrs. Harris were in contempt, their contempt was not wilful. That is where the matter stands at the moment.

I have mentioned that it is no part of my duty to defend the Manchester Corporation or the motives that may have inspired the Corporation's action. As, however, the Corporation has no representative here to defend it, I might make three general observations. First, it is by no means uncommon for the machinery of the criminal law to be invoked for purely selfish reasons. I do not say that it has been invoked for selfish reasons; I only say that it is not uncommon for the criminal law—and, indeed, the civil law—to be invoked for ulterior purposes.

Secondly, the fact that other people may have been guilty of similar offences—as to which I know nothing except what I have heard from the hon. Member for Stalybridge and Hyde and from my hon. Friend the Member for Manchester, Blackley (Mr. E. Johnson)—is no reason for refraining from taking proceedings and for not enforcing the law against Mr. and Mrs. Harris, who on their own showing have been guilty of numerous and deliberate infringements of the law as laid down by Parliament.

Finally, the High Court having granted an injunction, it seems to me to be the duty of the Manchester Corporation to enforce it.

I now turn to my real task—that is, to say why my right hon. and learned Friend took the action which he did and which, as I say, has been justified by the decision of the Court of Appeal. The principles on which the Attorney-General should act in cases like this have been laid down by the courts on many occasions, and perhaps the House will bear with me if I quote a very short passage from a judgment by Mr. Justice Eve in 1931 which was cited with approval in the Court of Appeal in this case. He said: The public is concerned in seeing that Acts of Parliament are obeyed, and if those who are acting in breach of them persist in so doing, notwithstanding the infliction of the punishment prescribed by the Act, the public at large is sufficiently interested in the dispute to warrant the Attorney-General intervening for the purpose of asserting public rights, and if he does so the general rule no longer operates; the dispute is no longer one between individuals, it is one between the public and a small section of the public refusing to abide by the law of the land. In exercising his function the Attorney-General is not really in the position of a private litigant who can choose at will whether or not he will enforce his rights. Still less is he acting as an agent of the Government. He represents the public, and his sole concern in a case of this sort is, in the words I have just quote, in seeing that Acts of Parliament are obeyed … That is the only consideration, as I am sure the House will appreciate, which has moved my right hon. and learned Friend in this matter, and it is the only consideration which ought to move him. I am sure that the House will agree that, once the High Court has granted an injunction, my right hon. and learned Friend is, if evidence is put before him that the Order has been infringed, bound to give his consent to the institution of proceeding in his name to enforce it.

So far as his consent to the original institution and prosecution of the proceedings is concerned, I do not think it will be disputed that my right hon and learned Friend was justified in his view that only a High Court injunction would suffice to secure compliance with the law, so that it was not merely his right but his duty to give his consent to the proceedings. That view was conclusively vindicated by the decision of the Court of Appeal.

In conclusion, the Court of Appeal, even if it finds the facts proved, is not bound to grant an injunction. It still has a discretion not to grant the remedy sought. But in this case the Court of Appeal thought that there was a case for granting the injunction. On those facts, I ask the House to say that it is quite plain that my right hon. and learned Friend's actions, with which alone we are concerned today, were justified.