Clause 3.—(VERIFICATION OF ORIGIN OF EXPORTED GOODS.) (Hansard, 22 February 1960)

§ Mr. Mitchison
I beg to move, in page 3, line 23, to leave out "An averment" and to insert "A statutory declaration".

§ The Chairman
I understand that it would be convenient to discuss also the two Amendments in page 3, line 23, after "averment" to insert: made on behalf of the Commissioners or any other Government department by a person duly authorised to make the same". and in line 26, after "shall" to insert: on proof of the authority of that person and".

§ Mr. Mitchison
Yes, I think it would, Sir Gordon.
106 This is a Clause dealing with the averment of the origin of exported goods and it contains in subsection (4) a remarkable provision which reads: (4) An averment in any process in proceedings under this section that any requirement to furnish information which has been made was made for the purpose specified in subsection (1) of this section shall, until the contrary is proved, be sufficient evidence that the requirement was so made. The purpose in subsection (1) is, I agree, rather complicated and a matter between Governments, or, at any rate, between Departments of Governments, and one appreciates the difficulty of proving a matter of this sort strictly. Therefore, there seems reason for having some provision that, if I may so put it, evidence that is proper by common sense should be sufficient for the purpose. I make no sharp distinction between common sense and the law, but I am sure that the Minister of State, Board of Trade, will see what I mean.
I suggest that this subsection is too wide. What is an averment? I began to try to discover and I was referred, in a legal textbook, to Coke on Littleton. I duly read it and I was not much wiser. The expression has occurred in a Customs Act which is no longer in force, but I could not find it in present legislation.
Does it mean, as it seems, that anyone who knows absolutely nothing about what is going on could say in the witness box, "I know nothing about this, but I aver that the requirement in question was met for the purpose specified in subsection (1)" of what will then be the Act? Is that to be sufficient proof, irrespective of the person's position and irrespective of his not wishing to commit himself to any knowledge or authority of any kind? I suggest that the subsection is much too wide.
I hope that the right hon. Gentleman will tell me what averment means and that he will take it from me that it is not one of those common expressions which everybody who has to deal with legal matters knows as a matter of course.
I suggest, in the Amendment, that "A statutory declaration" should be substituted for "An averment". A statutory declaration is a perfectly well known thing and it need not imply that the person who makes it is speaking of his own knowledge. He can say that he is 107 speaking to the best of his information or belief, or something of that sort, and it can still be a statutory declaration.
The other two Amendments which we are also discussing require that the person should make the statutory declaration on behalf of the Commissioners or any other Government Departments to authorities mentioned in subsection (1) and give some proof of his authority to make the declaration. If he goes into the witness box and says, "I am authorised to make it" and he explains how or produces a written authority, in ordinary circumstances that would be sufficient. But all that is a good deal narrower than what appears in the subsection.
I do not know whether it will be suggested on behalf of the Government that that will be too troublesome. I hope it will not. It is not much that is being asked. It is a statutory declaration made on behalf of the appropriate authority, with some proof of the authority to make it on behalf of that body. I do not think that it would cause any practical difficulty, and if it would have to be done at some Customs port I should have thought that the Revenue officer, or whoever it was, could be furnished with the necessary authority and that arrangements could be made to comply with the provisions of the amended Clause.
We should be careful in legislation of this kind not to let in these Clauses which provide such a vague shadow of evidence and proof that it really amounts to nothing, because if we do it in a case where it appears at first sight to be reasonable we shall find ourselves led on by the continuous pressure of an impatient Executive to do it more and more in statutes. Therefore, I think that it is up to an Opposition, in a matter of this kind, to insist on some security. I mean, of course, security for the person accused, because these are all proceedings which may lead to investigations, reports, and so on, and, under certain conditions, to punishments, since they are proceedings to verify something.

§ Mr. H. Rhodes (Ashton-under-Lyne)
I rise to support the point made by my hon. and learned Friend, which is one of substance. It would give confidence to importers and exporters in this country 108 if the declaration was on a properly constituted basis, which is more than can be said for the arrangements now in existence in, say, Hong Kong, where it is possible for a chartered accountant on the panel of people who declare the origin of the goods to be also the private accountant of the firm which is exporting the goods. Personally, I have no confidence in that type of declaration, since it is easy for ruthless people to get round a real, honest declaration. So I ask the Economic Secretary to consider the Amendment seriously and to assure us that there will be a real check on people who verify such documents.

§ The Economic Secretary to the Treasury (Mr. Anthony Barber)
I am grateful to the hon. and learned Gentleman the Member for Kettering (Mr. Mitchison) for raising this point, because it gives me an opportunity to clarify certain matters which are not apparent from a glance at the Bill alone.
First, I will deal with the point made by his hon. Friend the Member for Ashton-under-Lyne (Mr. Rhodes) who, if I understood him aright, was thinking of a statement made by somebody outside this country. The averment mentioned in subsection (4) refers back to the opening words of subsection (1) of Clause 3, which read: For the purpose of complying with any request made to the Commissioners … to verify or investigate any certificate or other evidence relevant to the question whether any goods exported from, or produced or manufactured (directly or indirectly) … from … another part of the Convention area … In other words, the averment or the statement referred to in this subsection is one which would be made by somebody acting on behalf of the authorities in this country.
As regards the points made by the hon. and learned Member for Kettering, I agree with him that we should be wary of giving powers in this Bill which are greater than those given in the past in somewhat similar circumstances. I hope, however, that when I have given the explanation he will feel that it is reasonable. I have not had the opportunity of looking up Coke on Littelton, but I think I would be no wiser if I had. The hon. and learned Gentleman said in relation to Clause 1 that he hoped the standard laid down in it might be similar to that in the Import Duties Act, 1958. I can assure him that the standard 109 here is similar to that laid down in the Customs and Excise Act, 1952.
The hon. and learned Gentleman's first Amendment proposes that the words "An averment" should be left out and that in their place should be inserted "A statutory declaration". In Section 290 of the Customs and Excise Act, 1952, there are various matters set out, of which it is stated, that it is sufficient evidence if they are averred— … in any process in proceedings under the customs or excise Acts … Consequently, it is fair to say, whatever the hon. and learned Gentleman may think of the intrinsic merits of an affirmation or of a statutory declaration, that in this case we are following well trodden paths, and it would be a substantial innovation if in this case we were to provide that there should be a statutory declaration rather than an affirmation. As I understand it, an averment is a statement, and this subsection refers in the opening words to "An averment in any process in proceedings". So what is being dealt with here is the document, the process by which the proceedings are started.
The second Amendment refers to the possibility of an averment being made on behalf of another Government Department. By virtue of Clause 11 (2), this Bill will be a customs Act for the purposes of the Customs and Excise Act, 1952, and consequently all the provisions of the 1952 Act in relation to legal proceedings will apply to proceedings taken under this Bill. It follows from Section 281 of the 1952 Act that proceedings can only be instituted by order of the Commissioners of Customs and Excise, and even if the request in question has been made through another Government Department, for example the Foreign Office, it will be for the Commissioners to establish the facts. So I hope the hon. and learned Gentleman will agree that in those circumstances, because of the reference back to the 1952 Act, it is unnecessary to make his Amendment.
The third Amendment asks that in the penultimate line of the subsection there shall be inserted the words— … on proof of the authority of that person and May I refer again to the Customs and Excise Act, 1952, where in Section 290 (1, c) there is provision for the proof of the 110 authority of a person authorised by the Commissioners. As I have said, all the provisions of the 1952 Act relating to legal proceedings are brought in by Clause 11 (2) of this Bill. In those circumstances, I hope the hon. and learned Gentleman will feel that it is reasonable to ask him to withdraw his Amendment.

§ Mr. Mitchison
Although this is a small point, I cannot regard that as a satisfactory answer. It may well be that the word "averred" is ensconced in the text of a Section of the 1952 Act and escaped my view when I was looking for the word "averment". As I suspected, this simply means a statement and, unless I misunderstood the hon. Gentleman, it appears to me that anybody who has authority from the Commissioners can prove the whole of what is required for the purpose stated in subsection (1) and can give evidence on matters of which only some other Government Department knows.
We are, therefore, getting to the point that without any oath—because that appears to be unnecessary—and by some statement in writing, a representative of one Government Department can prove matters which are not within the knowledge of that Department, but of some other Department. If that is not pushing abuse of legal process rather far, I do not know what is, but I repeat that this is a small matter.