REGULATIONS AS TO AMENDMENTS (Hansard, 19 June 1973)

§ Mr. Maclennan
I beg to move Amendment No. 335, in page 59, line 8, leave out subsection (3).
The purpose of this amendment is to delete that provision in the Bill which makes it a criminal offence carrying a fine, normally of £20, for a person contravening regulations applying to the preparation and keeping of accounts. The introduction of a criminal provision by way of regulation in this context is somewhat extraordinary. It requires justification. In any case, it is such a small penalty—a nominal penalty—that that, too, requires justification if it is genuinely intended to be a deterrent to criminal behaviour. It is also important to recognise that subsection (3), of which I complain, provides a penalty for negligent behaviour as well as for wilful commission of an offence.
I think it is an undesirable practice to introduce criminal offences into Bills of this kind without specifically declaring of what the offence is to consist—in fact, to provide the penalty before defining the offence. That practice is to be deplored and I strongly urge the Under-Secretary to drop it altogether. I doubt if it would make a great deal of difference to local authority officials, but on the whole it is better out than in.

§ Mr. Younger
I am grateful to the hon. Gentleman for raising this point.
A penalty provision such as that contained in subsection (3) in relation to accounting matters is by no means unprecedented in legislation. Sections 198 and 205 of the Local Government (Scotland) 470 Act 1947 contain such a provision in relation to the production of documents for inspection by the auditor and the giving of public notice of any surcharge or rectification of accounts ordered by the Secretary of State. There is the equivalent of this clause in English legislation, in Section 166 of the Local Government Act 1972.
As the hon. Gentleman says, it may appear that a penalty provision is unnecessary or undesirable from the viewpoint of a local authority, but its basic purpose is to provide protection for the public, and in this case the public is the general body of ratepayers. It is protection particularly in regard to the way in which accounts are to be kept and are to be open to inspection. This is a rarely used, full-back safeguard for the public interest. It is a preservation of existing provisions and there is similar wording elsewhere in this Bill in Clause 100, which we have already passed, as regards producing documents for auditors. It is very rarely used but it is a minor safeguard for the public, and I suggest that, while we appreciate the hon. Gentleman's arguments, we should reject the amendment.

§ Mr. Ross
The hon. Gentleman referred to the fact that this is in English legislation. That does not exactly thrill me, and I do not consider it justification for doing it in Scotland.
What troubles me is the mandatory nature of this provision. There is no escape from it—he "shall" be guilty of an offence and he "shall" be liable to these mandatory penalties—a fine not exceeding £20 and, in the case of a second or subsequent offence, a fine not exceeding £50. I would not regard those as nominal fines.
What slightly worries me is that we are introducing these penalties on a not very substantial precedent—although perhaps there are more substantial precedents to come—and the offences are offences against regulations. We have not seen the regulations. We have no idea what they may or may not contain. Indeed, if the House is very busy, the chances of our seeing or debating these regulations are very limited, because: A statutory instrument containing regulations made by the Secretary of State under 471 this section shall be subject to annulment in pursuance of a resolution of either House of Parliament "— in other words, only on the initiative of a Member of Parliament and provided there is enough time.
Anyone who knows the state of play in debating regulations will appreciate that the chance of getting a debate, and getting it in time, is strictly limited. The amount of stuff that is coming from the Common Market legislation or consequential changes in respect of various aspects of Government, certainly in Scotland, is difficult to cope with. For my sins, almost daily I receive a batch of these papers, delivered into my hands, and I try to persuade my hon. Friends to take an interest in them. I do not like the ironical laughter from my hon. Friend and able helper the Member for Glasgow, Woodside (Mr. Carmichael). We have been promised ways and means of trying to get round this so that we shall not lose touch with what is happening.
It is rather unfair that we should introduce, by regulation, this penalty, not for gross negligence but for wilful or negligent contravention. If a person is to be subject to this there is no doubt at all about his being found guilty. And all this is done by a regulation that we may never have a chance to debate properly. I do not think it is a good principle. I have known the time when Conservative Members have kept the House up hour after hour, well into the middle of the night, to discuss any such regulations as they got the chance to discuss. That was in the days when we were not allowed just one and a half hours to discuss a regulation but could do so, even on a negative resolution, all through the night. On many occasions I suffered through having to listen to droning voices on this subject.
Of course, I am denied these rights, which were whittled away by the Conservative Government. That was one of the things they changed in 1951, thus denying hon. Members an opportunity for full and free discussion of such regulations. That may be just as well, because we could not have done it now, but it means that we are going to make people subject to penalties in respect of I do not know what—because I do not know what the regulations will contain. The 472 chances are that the Government are under no obligation to obtain the agreement of the House to them. This is one of the things concerning which the Government ought to be under an obligation.
If the Government are going to subject people to a fine they should not do so under the negative procedure, bearing in mind, of course, that we are only given the general tenor of what the regulations may contain. They may be very unfair indeed, or very complex, so that a person could negligently contravene them. I really would like to find out whether or not the hon. Gentleman has anything more substantial on which to base the justification for this provision than what he has already given us. We are grateful to my hon. Friend the Member for Caithness and Sutherland (Mr. Maclennan) for having raised this matter.

§ Mr. Younger
I promised to answer the right hon. Gentleman. There has been precedent for this—in the Local Government (Scotland) Act 1947. There will be consultations with the local authority associations before regulations are made. The penalty will apply only to a contravention of the provisions of the regulations which is declared in them to be an offence. It is right that they should be subject to parliamentary scrutiny. There are ways of doing that if the Opposition of the day wish to use them.

§ Mr. Ross
The hon. Gentleman will appreciate that the Opposition wish to raise many of these matters, but I can assure him that time is strictly limited. If he does not believe me, let him consult the Leader of the House.
The House and the Government are in difficulty in dealing with this plethora of regulations. With the best will in the world we cannot deal with them all.

§ Mr. Maclennan
I am extremely grateful to my right hon. Friend the Member for Kilmarnock (Mr. Ross) for the support he has given me in this matter. I regard the principle here as extremely serious, and I do not find it at all satisfactory that the Minister refers to some precedents. There are in English law and in Scots law many precedents which ought to be departed from. It is a bad legislative precedent to import this provision into a 473 Bill which is not a criminal Bill and has nothing to do with criminal law but sets up a penalty for an offence which is not described but which is to be described subsequently, by being embodied in regulations which may or may not be made and to which exception may or may not be taken. It seems to me much too serious a matter to be treated in the way the hon. Gentleman has treated it.
There is a minor point that I want to refer to, namely, my use of the word "nominal" referring to the fines. Both fines are substantial, but in relation to the amount of money which might be involved in the alleged offence they might be so small as not to constitute a deterrent to a wilful contravention. This goes to demonstrate what I take to be the lack of supporting evidence for the necessity for such a clause. It is incumbent on the Minister, if he is creating a new offence, to indicate not merely that there is a precedent for such a provision but what the need for it is. Who has advised him that this is necessary? What local authority associations have advised that this is necessary? What local authorities have said that it is necessary? And what grounds has he to believe that such a provision will either warn off from a wilful contravention of the regulations or prevent negligence occurring?
We cannot rest content with such an inadequate justification of the creation of a new criminal offence and possibly a whole range of offences under regulations which may be drafted. I feel strongly that this is an extremely serious matter, and it is not one I am prepared to allow to go by with such a scant answer from the Minister.

§ Mr. Younger
I am sorry that the hon. Gentleman thinks my reply scant. It was not meant to be scant. I am doing my best to give him as many answers as I possibly can.

§ Mr. Ross
The best is not good enough.

§ Mr. Younger
The right hon. Gentleman is entitled to his view on that. I should be happy to take a general view on that subject as between him and me.
This is not a new offence. The hon. Gentleman referred to it as being a new offence. It is not. In Section 198(2) of 474 the Local Government (Scotland) Act 1947 there is similar provision.
Of course, it is very much a matter of opinion—that I entirely accept—whether this is unnecessary, as the hon. Gentleman thinks, and he thinks it will not be a deterrent. I think that it is necessary and that it will be some deterrent in some cases at any rate. This is a small protection for the public—not a great protection but a small one. On that point we must agree to differ, but I hope the House will not accept the amendment.