Clause 105.—(POWER OF BOARD OF TRADE TO REQUIRE PRODUCTION OF DOCUMENTS.) (Hansard, 19 July 1967)

§ Mr. Darling
I beg to move Amendment No. 272, in page 82, line 26, after 'body', to insert `corporate'.

Mr. Deputy Speaker
We can also discuss Amendment No. 121, standing in the name of the hon. Member for Gloucestershire, South (Mr. Corfield), in page 82, line 21, leave out 'corporate'.

§ Mr. Darling
This is a drafting Amendment. We have already discussed the matter and I am still not certain that we have got the thing right. I think that there are certain technical reasons why the hon. Member for Gloucestershire, South (Mr. Corfield) has not got it right, either. This is something we must look at again.
For the time being, at any rate, I hope that our Amendment will be accepted.

§ Mr. Corfield
Since we discussed a similar problem a little time ago, I have done a little research with the Oxford Dictionary. I am now satisfied that, whereas it is quite possible for a corporate body to exist which has not been incorporated, it is wholly impossible for 2411 anything which has been incorporated to be anything but a corporate body. I hope that we shall eventually see that incorporated into the Bill, to its great advantage.

§ Mr. Jay
I beg to move Amendment No. 273, in page 82, line 35, after 'may' to insert: 'at any time, if they think there is good reason so to do'. This Amendment relates to the authorisation to be carried out by the Board of Trade. Under the present laws, the Board may at any time, if it thinks fit, give direction to a body corporate requiring it to produce books or papers. Alternatively, it may authorise any officer of the Board to require the body corporate to produce to him—that is, to the officer—any books or papers that the officer may specify. In the Clause as drafted the words at any time, if they think there is good reason so to do"— that is, if the Board thinks fit—apply to a direction given to the body corporate but not to an authorisation of a Board of Trade Officer. It seems appropriate and reasonable that these words should apply also to the authorisation.

§ Mr. Darling
I beg to move Amendment No. 275, in page 83, line 11, after second 'is' to insert: 'or was at any time'. The Amendment carries out an undertaking I gave in Committee that there should be power to require an explanation, if need be, from a past employee as there is from a past officer. I undertook to ensure that that power would be written into the Bill. The Amendment provides for it.

§ Mr. Corfield
I beg to move Amendment No. 124, in page 83, line 25, at the end to insert, (a).

Mr. Deputy Speaker
With this Amendment we can discuss Amendment No. 125, in page 83, line 28, at end insert: 2412 'or (b) the requirement was in all the circumstances unreasonable'.

§ Mr. Corfield
The purpose of the Amendment is to ensure that a person accused of an offence under subsection (4) may claim in his defence that the requirements of the Board of Trade were thoroughly unreasonable in relation to the circumstances. This arises from the fact that, when the Bill was in its first draft when it came to us, which I suppose was about the fifth draft, Clause 105 was Clause 67. The wording was such that the Board of Trade under subsection (1) could operate only when it had good reason to believe that the books etc. were required. This has been altered and the Board may now demand the production of such books or papers as it may specify or as its officer may specify. It is an absolute power.
When a prosecution is taking place for an offence alleged under subsection (4), it will still be necessary for the Board of Trade to stand up to the charge that it has behaved unreasonably and satisfy the court that it has behaved reasonably, if it is challenged.
It is generally understood in Statutes that if a power is not exercised reasonably, when the word "reasonably" appears, it is considered ultra vires the statute. I think that this requires making clear, and the proposed words do it.

§ Mr. Jay
I see the hon. Member's purpose. The Amendment is intended to protect the person in question against over-zealous action by the Board of Trade rather than any action in bad faith—of which he would probably not accuse us. If there were an excess of zeal in such a case a person who complied with the requirement would, since he had nothing to hide by so doing, quickly bring the inquiry to an end, and because of the security provisions which are included in Clause 107 he could be confident that none of the information obtained by the Board would be, disclosed. He would suffer no more than inconvenience of producing books and papers.
If the Amendment were accepted, however, it might be possible, in the case of an individual who had something to hide—provided that he did not have to produce the books and papers in such a case—to be able to make if not a convincing at least a plausible case, to the 2413 effect that his affairs were in order and that the requirement of the Board of Trade was unreasonable.
Here we have to choose between, on the one hand, being sure of the power to require the production of papers in a case of that kind and, on the other, of providing, in quite a different case, a firm defence against action which did not cause any hardship or injustice but merely caused inconvenience. For those reasons, t seems to us that the Bill would be more effective and would not produce any hardships if it remained as it is in his connection.

§ Mr. Corfield
I find that reply disappointing. We sometimes deal with people who, though straightforward and honest, are not highly intelligent in these matters. I suppose that every hon. Member has, from time to time, come across constituents who enormously resented interference by a bureaucrat. If such a person feels angry he is likely to say that he will be dashed if he will do what required. The net result is that he gets into trouble from an excess of determination not to have his independence interfered with.
On occasions, the fault is probably his, but on other occasions a bureaucrat nay behave with an excess of zeal, and .he person concerned may have good grounds for saying that he will be dashed if he will hand over this, that and the other. I should be happier if I could feel that there was a safeguard which provided that the Board of Trade would not succeed if it could not show that it had not acted unreasonably.
I do not think that this substantially weakens the Board of Trade's power. It has only to say that it had good reason to believe that the case fell within subsection (1) and to believe that the books were relevant, and 99 times out of 100 it will be capable of persuading the court that in the circumstances its action was reasonable.
But there are occasions when people overstep the mark. Many worthy citizens do not say, "Here you are. Here are the books. We have nothing to hide. Let us get it over with ". If they are angry even at the suspicion cast upon them and get themselves into trouble we cannot entirely condemn them for doing so; in some respects an independence of 2414 spirit is an important characteristic of our people. I would not wish to see it so greatly diminished.
I realise that the right hon. Gentleman has not much time, but I hope that between now and the next Bill or even by some procedural means in another place, he will get it in, because it is important that the citizen should be able to challenge the unreasonable use of absolute powers.