§ 7.15 p.m.
§ Mr. Eric Johnson (Manchester, Blackley)
I beg to move, in page 18, line 45, at end to insert:In subsection (1) of section one hundred and forty-one of the Licensing Act, 1953, after the word "licence" insert the word "knowingly" and in paragraphs 11 and 12 of the Forms of Certificate for hotel and public house respectively in the Second Schedule to the Licensing (Scotland) Act, 1959, after the word "not" insert the word " knowingly ",Part of the Amendment refers to Scotland, and if my hon. Friend the Member for South Angus (Sir J. Duncan) catches your eye, Mr. Speaker, he will deal with that part. So far as it affects Section 141 of the Licensing Act, 1953, it would mean that that Section would read:If the holder of a justices' licence knowingly suffers any gaming or unlawful game to be carried on in his premises he shall be liable on a first conviction to a fine not exceeding ten poundsand so on. The Amendment would ensure that the burden of proving knowledge is placed firmly upon the prosecution. I am aware that the words "knowingly" and "suffers" have a very long and complicated legal history, and if my hon. Friend for the Isle of Thanet (Mr. Rees-Davies) catches your eye, Mr. Speaker, I hope that he will deal with that aspect of the Amendment.
I would merely ask my hon. Friend and the House to accept the Amendment on a fair and normal interpretation of the English language. As the Bill stands, the magistrates may take the view that once gaming has been shown to have taken place it is up to the licensee to prove that he had no knowledge of it. I should like to illustrate the point by an example. A case occurred in which a licensee was personally in charge of the premises and was serving in the saloon bar while his barman served in the public bar. Evidence was given that the barman could have seen a betting slip being passed, and on that evidence the licensee was convicted. That seems absolutely wrong. If the word "knowingly" had been inserted in the Licensing Act, and if the word means what I have always supposed it to mean, the landlord could not have been convicted.
It might be held that if a licensee suffers gaming to go on while he is in charge of the premises he is liable, but 279 if the word "knowingly" is included the position will be clarified and the law will be very much fairer to the licensee.
§ Sir J. Duncan
I rise only to say a few words from the Scottish angle, since Scotland is included in the Amendment and Scottish licensees are rather interested in the matter. We have already passed Clauses which allow gaming of any lawful kind to be played in the back room of a public house. If the licensee is in the bar, and the back room of the public house, from which there cannot be access to the bar, is being used, it will be very difficult for the licensee to know what exactly is going on. It seems to me, therefore, that it is only reasonable that he should have some let-out if he does not know what is going on. It may well be that some local club had taken the back room for the evening to play "housey-housey". It can be extremely difficult for a licensee, serving drinks in the ordinary way in the bar, to keep an eye entirely on what is going on in the back room. If there is a row, he will be expected to hear it and deal with it, but it will be very difficult for him to do what he is expected to do under the present provision.
The Second Schedule to the Licensing (Scotland) Act, 1959, provides a form of certificate which the licensee is given, and in paragraph 9 of that Schedule it is stated:the certificate-holder shall not knowingly permit any breach of the peace, drunkenness or riotous or disorderly conduct in the premises …".The word "knowingly" is there already. Paragraph 10 states:The certificate holder shall not knowingly permit men or women of notoriously bad fame or girls or boys to assemble in the premises …".Again, the word "knowingly" is included. Paragraph 11, which is the one we wish to amend, states:the certificate-holder shall not permit any unlawful games in the premises …The object of the Amendment is to make paragraph 11 read:the certificate-holder shall not knowingly permit any unlawful games in the premises;That is all we want, and, in view of the alterations in the Bill and the liberalisation of the playing of any lawful games in the back rooms of public houses 280 today, it seems reasonable to amend the Schedule in order to help the licensee in these circumstances.
§ Mr. N. Macpherson
Small as this alteration is, it is an important one, and I should like to say at the outset that this is a highly technical Amendment. I must ask the indulgence of lawyers on both sides of the House if I try to tackle it, because I wish to try to deal with it in broad terms. I am slightly consoled by the fact that the Amendment was moved and seconded by my hon. Friends the Members for Blackley (Mr. E. Johnson) and South Angus (Sir J. Duncan), neither of whom is a lawyer.
§ Mr. Macpherson
I must tell my hon. Friends right away that the Government cannot accept the Amendment, and I shall try to show why. My hon. Friend the Member for Blackley—
§ Mr. Macpherson
I stand corrected, and I apologise to my hon. Friend the Member for Blackley. My hon. Friend addressed himself to the burden of proving knowledge, and said that in his view it should be firmly placed upon the prosecution. He said that it should be open to the licensee to prove that he had no knowledge. Of course, it could be argued that the licensee cannot be expected to know everything that takes place on his premises, and my hon. Friend the Member for South Angus argued that it was even more difficult for him to know what was going on in a back room. Both my hon. Friends put the Amendment in its setting, and I need not cover the point again. They certainly stated the effect of the Amendment quite correctly.
I am informed that there is a judgment of Lord President Cooper in the case Simpson v. Gifford, in which he said:The whole theory of the Licensing Act is that trade in liquor is permitted to be carried on provided always that certain conditions are complied with.In other words, the law, or the licensing court, holds the licensee responsible for seeing to the best of his ability that certain things are done or are not done, as the case may be. For the licensee to 281 escape responsibility, therefore, it should not be enough for him merely not to know that gaming is taking place on his premises.
Of course, the licensee cannot ensure at all times that any manager or servants do what he tells them. It has long been held in the English courts and in Scotland—there is a well-known case on this —that if the servant or manager is in control of the premises or part of the premises, and the servant or manager knew that an offence was being committed, or ought to have known, then the licensee it liable. It is only if the servant was not acting within the scope of his employment that the master can escape liability.
Again, a licensee or his servants might deliberately avoid knowing or trying to find out, and that would be tantamount to connivance—what a great English judge described as "purposely abstaining from ascertaining". In legal terms, from what little I know of the law, knowledge may be either actual or constructive knowledge. I am advised that what this Amendment would do would be somewhat to undermine the doctrine of constructive knowledge. What this amounts to is that a licensee is liable if either he knows of the gaming, or he knows that gaming is likely to take place and takes care not to know whether in fact it takes place. If the word "knowingly" were inserted, as is suggested by the Amendment, he would not be liable in the latter case.
It is no answer to plead hardship and to say that it is unduly hard to make the licensee responsible for the acts of omission of others. That is his job, and the conditions on which he gets his licence, and this condition is written into the Licensing Act. There is no change in this, and therefore there is no reason to make a change in the conditions which he has to fulfil. If anything, this Bill is relaxing the responsibilities that are laid upon the licensee because of the relaxation which it makes about games that may be played on licensed premises. On the other hand, the word "suffers" has been construed, I am told, by the English courts in a long series of cases, as my hon. Friend the Member for Blackley said, and the word "permits" has been similarly construed in Scotland. It has 282 been held that " suffering "or "permitting" gaming to be carried on implies some degree of knowledge. The knowledge may be actual or constructive; in effect, the licensee knew, or should have known, or those who were running the place for him knew or should have known.
My hon. Friend the Member for South Angus drew attention to the fact that there were two other conditions which did include the word "knowingly", but 1 would draw his attention to the fact that these conditions are quite different in character. I would assume myself that a breach of the peace might arise suddenly in a manner in which the certificate-holder in Scotland could not have prior knowledge and could not prevent the breach of the peace. As to whether a licensee knows when a constable is not a constable and when women of notoriously bad fame are on his premises, that again is something on which it is quite logical to say that he must not permit them, knowing them to be there.
When we come to permitting any unlawful gaming on the premises, this is a duty which he is expected by the licensing court to fulfil, and it is up to him to take such measures so to ensure it. After all, games are continuing things, and not just chance events, and he should take such measures as he can by proper organisation to ensure that such activities do not take place on his premises.
Although my hon. Friend did not argue it, it could be argued that "knowingly" would not add very much to the content of the word "suffered". but, on the other hand, the courts would be bound to conclude, if this word were inserted and in a different Bill altogether and in a different form of legislation, that Parliament intended some fairly radical change, and they would be bound to ask what the change was. My hon. Friend the Member for Blackley said that the change should be that the burden of proving knowledge should be placed on the prosecution, but that is an extraordinarily difficult burden to discharge. I cannot refrain from the conclusion that the Amendment would encourage licensees to turn at least one blind eye to gaming in the bar and would make it impossible 283 for them to be held responsible for such breaches on their premises, so I must ask the House to reject the Amendment.
§ Mr. Ede (South Shields)
I welcome the decision announced by the Joint Under-Secretary of State for Scotland. I am certain that if these words were included the amount of difficulty which they would create in the justices' room after the justices had heard a case would be very great. After all, the granting of a licence is a matter of considerable value to the person who gets it. He has to prove before a court that he is a person of good character and is likely to be able to control the premises in respect of which he is given a licence.
Publicans are getting a great deal out of the Bill. Considerable concessions were made to them in Committee. I do not know whether they think that they are now merely forcing an open door, but I am very glad to find that there is some point beyond which the Government are not prepared to go in making concessions which add to the difficulties of getting the ordinary law enforced.
Before some lawyer butts into a laymen's argument and confuses the issue so that none of us knows what is right or wrong, I would say how heartily I support the hon. Member and how much I congratulate him upon stating a case to us before the lawyers have made it completely incapable of being understood.
§ Amendment negatived.
§ Mr. Fletcher
I beg to move, in page 18, line 45 at the end to insert:(2) So much of Section thirteen of the Gaming Act, 1845, as prevents a billiard room on premises licensed under the Licensing Act, 1953, from being used for other games or purposes during times when the playing therein of billiards, bagatelle and similar games is prohibited that is to say, the words "and every billiard room in every house specified in any victualler's licence", shall cease to have effect.In the absence of my hon. Friend the Member for Bermondsey (Mr. Mellish), in whose name the Amendment was put down, I think I can say that this is a very simple Amendment which needs no explanation from me. I hope that it will be accepted by the right hon. Gentleman.
§ Mr. Vosper
Perhaps the House had better know what the Amendment is 284 about. The Gaming Act, 1845, some, but not all, of which is being repealed by the Bill, prohibits the playing of billiards on Sunday. As a second part of that provision, it also prohibits the use or opening of billiards rooms on Sunday.
The Amendment permits a billiard room to be opened on Sunday for another purpose. I do not believe that those who are advocates of strict Sunday observance will think that to make use of a room which is otherwise useless on Sunday is a great breach of the law, and I advise the House to accept the Amendment.
§ Mr. N. Macpherson
The Amendment does not apply to Scotland for the very good reason that public houses in Scotland are not open on Sundays, although hotels are. In any case, in Scotland there can be a billiards room in licensed premises and it does not need to be separately licensed.
§ Mr. Rees-Davies
In the absence of the hon. Member for Bermondsey (Mr. Mellish), I add my support and I am delighted with what my right hon. Friend has said about it. Does the Amendment apply to Wales? Although there are no other Welshmen present— and they should be here on this great day—I am sorry that I did not notice the hon. Member for Manchester, Open-shaw (Mr. W. R. Williams), who is a Welshman, although he does not represent a Welsh constituency, and neither do I—it is a great day for Wales when one is to be allowed to play billiards on a Sunday. Secondly, will the Amendment cover hotels in Wales? I remember very well that it was impossible to play billiards in Wales on a Sunday and there are literally hundreds of thousands of Welshmen throughout the country who will be strongly in support of being able to play billiards, or bagatelle, on a Sunday.
§ Mr. W. R. Williams (Manchester, Openshaw)
I had not intended to intervene, but I cannot allow the hon. Member for the Isle of Thanet (Mr. Rees-Davies) to speak on behalf of all Welsh people, because I think that his knowledge of Wales is now limited and it would be very presumptuous of him to claim to speak for Wales. I try to keep in contact with the Principality, and I should be very surprised if the bulk of 285 opinion in Wales were in favour of the Amendment. I, too, would like to know whether the Amendment applies to Wales as well as to England.
§ Mr. Vosper
I do not see how the Amendment can apply to Wales for the very good reason given by my hon. Friend in respect of Scotland, namely, that public houses in Wales are not open on Sundays. The Amendment applies only to public houses which are open and where the licensee wants an additional room because his premises are crowded. He will now have the billiards room available. I shall not commit myself to the hopes for Wales expressed by my hon. Friend the Member for the Isle of Thanet (Mr. Rees-Davies). The Amendment cannot apply to Wales because public houses there are not open on Sundays.
§ Amendment agreed to.