HC Deb 17 January 1967 vol 739 cc100-6

6.45 p.m.

Mr. Peart

I beg to move Amendment No. 140, in page 6, line 39, at the end to insert: Provided that if in proceedings against any person for an offence under this subsection it is proved—

  1. (a) that the commission of the offence was due to an act or default of some other person, and
  2. (b) that the person charged took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by him or any person under his control,
then, subject to the next following subsection, the sperson charged shall be acquitted of the offence. (5) A person charged with an offence under the last foregoing subsection shall not be entitled to be acquitted by virtue of the proviso thereto unless, not less than fourteen clear days before the hearing, he has given notice in writing to the prosecutor of his intention to rely on that proviso, specifying the name and address of the person to whose act or default he alleges the commission of the offence was due, and has sent a like notice to that person; and that person shall be entitled to appear at the hearing and to give evidence. This subsection shall not apply to Scotland. (6) Where the commission by any person of an offence under subsection (4) above is due to an act or default of some other person, that other person shall be guilty of the offence; and a person may be charged with and convicted of the offence by virtue of this subsection whether or not proceedings are taken against the first-mentioned person.

Mr. Speaker

With this Amendment we shall also consider Amendment No. 9, to Clause 8, in page 9, line 16, at end insert: Provided that if in proceedings against any person for an offence under this subsection it is proved—

  1. (a) that the commission of the offence was due to an act or default of some other person, and
  2. (b) that the person charged took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by him or any person under his control,
then, subject to the next following subsection, the person charged shall be acquitted of the offence. (6) A person charged with an offence under the last foregoing subsection shall not be entitled to be acquitted by virtue of the proviso thereto unless, not more than fourteen days after the date of the service of the summons on him nor less than seven clear days before the hearing, he has given notice in writing to the prosecutor of his intention to rely on that proviso, specifying the name and address of the person to whose act or default he alleges the commission of the offence was due, and has sent a like notice to that person; and that person shall be entitled to appear at the hearing and to give evidence. This subsection shall not apply to Scotland. (7) Where the commission by any person of an offence under subsection (5) above is due to an act or default of some other person, that other person shall be guilty of the offence; and a person may be charged with and convicted of the offence by virtue of this subsection whether or not proceedings are taken against the first-mentioned person.

Mr. Peart

This Amendment, which follows the lines of similar provisions in other Acts, fulfils an undertaking which we gave at the last meeting of the Standing Committee—columns 1220–1 of the OFFICIAL REPORT show that this point was made—to amend Clause 6 in order to provide a third-party defence against the offences described in subsection (4) of that Clause. These offences relate to contraventions of, or failures to comply with, any provision of a classification marking order under Clause 6.

The Amendment provides that a person charged with an offence under Clause 6(4) shall be acquitted of that offence if, first, he gives suitable advance notice in writing to the prosecutor and to the third person concerned, informing them that he intends to rely on this form of defence and specifying the third person concerned; and, secondly, that it is proved in the proceedings of the court both that the offence was due to an act or default of that third person, and that the person charged did all he reasonably could to avoid the commission of the offence either by himself or by any person under his control such as an employee.

The Amendment also provides that the third person cited shall be entitled to appear at the hearing, and to give evidence; and that where it is found that the commission of the offence was the fault of someone other than the person charged, that other person shall be guilty of the offence. It is also provided that another person may be charged directly with and convicted of the offence whether or not proceedings are taken against the first person.

The proposed new subsection (5) has not been applied to Scotland because, in practice, the procedure in summary criminal prosecutions in Scotland has not been to require notice of defence in parallel cases. We think it would be right to include a defence of this kind in relation to offences under Clause 6(4), and I ask the House to accept this Amendment.

Mr. Stodart

This Amendment was generated, I think, by the new Clause which we discussed at the end of the Committee proceedings and it certainly goes a good long way in the direction which we wished, our new Clause having been based on the protection given under the Food and Drug Acts.

I should like to comment on what the right hon. Gentleman has said about Clause 6. When the Amendment was first put down it had one subtle but significant difference from its present form, and I should like the Minister to explain the precise difference between "fourteen days" and "fourteen clear days." The word "clear" has been inserted, no doubt for a very good reason, and it would be interesting to know precisely what the difference is.

I now turn to Amendment No. 9. This Amendment was designed to give similar protection to defendants under Clause 8 as that which has been provided by the Government under Clause 6. In Committee, when we attempted to embrace both Clauses under a single new Clause, the Joint Parliamentary Secretary promised to deal with Clause 6 in this way, but so far as Clause 8 is concerned he said that it would be possible to deal suitably with each type of offence under that Clause when a scheme was drawn up.

I am not clear why there is the distinction in the approach to two Clauses under which the offences are by no means dissimilar, and where there could be too serious a situation to allow of the mere possibility, which is all that it is, of dealing with things in this way.

There is enormous scope under Clause 8 for regulations about labelling and describing meat, and for doing all this excessively, as butchers will be compelled to do. There is a great possibility of those regulations being broken by third parties. I do not think that the proprietor of a butcher's shop could be expected personally to supervise all these matters all the time, because a butcher must be away at market quite a lot. He must be away from his premises for a minimum of one day a week and possibly more, and it would be most unjust if he had personally to bear the responsibility for mistakes in wording on labels and price lists and in the keeping of records, making returns, and so on, where an employee may ignore instructions.

These points may be taken care of under a scheme, but I and my right hon. and hon. Friends do not understand why it is proposed to deal with Clause 6 in the Bill but to leave Clause 8, where the infringements can be just as great, to be dealt with under a scheme. We would like a very clear and adequate explanation from the right hon. Gentleman as to the purpose of this. If he is unable to accept our Amendment we would like him at the very least, after telling us why not, to give an absolute assurance that this will be fully and adequately dealt with under a scheme.

Mr. Peart

The hon. Member for Edinburgh, West (Mr. Stodart) first raised a point about my Amendment concerning the period of 14 days. There are two small changes, one following from the other. The first is that the revised Amendment no longer provides for a maximum period of 14 days after the service of the summons during which the person summoned could give notice of his intention to rely on the defence specified. After reconsidering this, we took the view that the interests of the prosecutor and the third party are adequately protected by the other kind of time limit, that is, a minimum period of notice which the person summoned must give before the hearing. We concluded that the sole effect of the provision which we have now dropped would have been to prejudice the accused in the occasional case where the facts were very complicated. I hope that the hon. Member will appreciate that a change has been made.

The hon. Member also asked me why we have not taken action on Clause 8, and he pressed that point in relation to his Amendment. Clause 8 does not itself specify offences, but subsection (4) provides that the offences may be specified in a price-marking scheme made under the Clause. I am advised that this power to specify an offence also includes the power to define or limit that offence by providing in suitable cases for a defence of the kind envisaged in the Amendment.

In other words, as the Bill is drafted at present, a scheme under Clause 8 could provide for a defence on exactly the same lines as the proposed Amendment, where this was appropriate to the type of offence specified. Each case could be dealt with on its merits. The Amendment would go further by providing for a third party defence in any and every case where proceedings are taken for offences under a scheme under Clause 8, whether the third party defence would be appropriate to that type of offence or not.

We have already said in Standing Committee that we would accept that a third party defence would be reasonable in the case of some types of offence. Indeed, we would expect that when the time comes the Ministers and Parliament of the day will scrutinise very carefully any price-marking scheme submitted to them to make sure that such a defence is provided in appropriate cases. That is the whole purpose of a scheme, and we shall have all the safeguards in our legislation. We cannot accept that this defence should have to be attached to all types of offence, as the Amendment proposes. It may well be that a scheme will and should place responsibility on a particular category of persons for failure to comply with a particular provision of a scheme, or it may be that an offence would be specified in terms which would make a third party defence inappropriate. The Amendment takes no account of those possibilities, whereas the Clause does.

Therefore, since provision for consulting the interests concerned is already made in the Bill, and the need for Ministerial and Parliamentary approval will ensure that the safeguard could never be overlooked, I believe that the Amendment is unnecessary as a means of ensuring that no one forgets to put in that defence in appropriate cases. Furthermore, the Amendment could in some cases provide a defence which was entirely in appropriate to an offence specified in a scheme, and could even defeat the purposes of creating that offence.

For these reasons I hope that the Amendment will not be pressed. I could not accept it, but I think that we have given assurances. I have tried to explain as fully as I can what the position is.

Mr. Godber

I have listened to the Minister with care. Some of his assurances have gone some way to meet our anxieties, but I am not wholly happy with his argument. The whole basis of it is that there is ample opportunity in a scheme to relate the safeguards to the scheme itself. That is how I understand his argument. Does not the same apply to Clause 6 in regard to an order? It is an order in Clause 6 and a scheme in Clause 8, and in each case there would be opportunity for precisely the same provision. I do not suggest that the right hon. Gentleman should withdraw his own Amendment, because it is useful to put those safeguards into the Bill. It has been done in other legislation and I think that the Food and Drugs Acts provide safeguards in this respect.

Clause 8 is much wider in its effect on individuals and will affect more people. All the retail butchers will be affected. That is a much wider category of persons, and is it not right that Parliament should write into the Bill better safe- guards for those people? I do not think that we are asking too much of the Minister on this. There is no matter of principle between the two sides; it is a matter of sound common sense.

The Minister has not carried me with him in his argument. I cannot see that what applies to Clause 6, with its provision for orders, is not equally applicable to schemes in Clause 8. Far more people are affected by Clause 8, and, therefore, while the assurance may go some way to ease the very genuine anxieties about what could happen to those who would be affected by such a scheme, it does not go nearly as far as if the Amendment were written into the Bill.

I feel great difficulty in understanding why the right hon. Gentleman accepts this provision in relation to Clause 6 concerning an order and not in relation to Clause 8. His speech has not satisfied us. We shall have to continue to ponder the matter and perhaps it will be raised again when it goes to another place.

Amendment agreed to.