CRIMINAL LIABILITY OF UNDERTAKERS AND THEIR EMPLOYEES (Hansard, 7 April 1975)

§ Sir David Renton (Huntingdonshire)
I beg to move Amendment No. 1, in page 22, line 12, leave out "£400" and insert "£800".

§ Mr. Speaker:
I think that it would be for the convenience of the House if the four amendments were taken together.

§ Sir D. Renton
The four amendments have in common the fact that they all propose an increase in the maximum penalties which can be awarded by courts on summary conviction for offences against the Act as it will be. We must bear in mind that whenever we fix maximum penalties we have to use our judgment as to what would be the right penalty for the worst type of case. It will not necessarily be the most typical case.
Up to a point, this involves a matter of guesswork based upon experience and various other factors, and especially that in these days of inflation at an annual rate of 20 per cent. any maximum that we write into the Bill will be overtaken by inflation within a comparatively short space of time and we do not wish the Minister, if he is still the Minister, to have to come to the House again to propose 964 an amendment to the Act to keep pace with inflation.
The Home Office has both a responsibility and an interest in seeing that the maximum penalties in various Bills bear some kind of logical relationship to one another. I know that the Home Office takes this duty very seriously, but I venture to suggest that if we look at the maximum penalties in the Bill as drafted we see that they have been fixed at too low a rate.
Having made those general remarks, and perhaps having reminded the House that the possibilities of public danger inherent in the Bill or in the works to be constructed under the Bill are great, I now turn to the four amendments in detail.
Amendment No. 1 arises on subsection (1) of Clause 22 where it says that the maximum penalty on summary conviction shall be £400. This penalty can be awarded for wilful default of the undertakers in failing to comply with a considerable number of provisions in the Bill in relation to a large raised reservoir. If we want to know what a large raised reservoir is, we have to look at Clause 1(1)(a) and (b), where it is defined. I concede at once that some of the offences covered by Clause 22(1) are not very serious criminal offences. However, failure to comply could perhaps in rare circumstances have serious results. There is, therefore, a case for doubling the penalty.
I must confess that I do not feel as strongly about Amendment No. 1 as I do about the other three. The nature of the offences dealt with is so serious that in the worst type of case the penalties could be quite inadequate. Amendment No. 2 relates to undertakers failing without reasonable cause to give the enforcement authority in due time any notice required by this Act to be given … to that authority". Failure to give notice may sound innocuous, but we are dealing with large raised reservoirs containing millions of gallons of water held up by artificial dams. If those dams were to burst, people could be drowned, houses destroyed and thousands of acres of land flooded. If a consulting engineer, in 965 order to save costs, took a chance and did not give the requisite notice, the consequences could be serious. One hundred pounds is an inadequate maximum penalty.
Similar remarks can apply to Amendment No. 3. Again, the possible offence in Clause 22(3) does not sound very serious, referring to undertakers or their employees who refuse or knowingly fail to afford to any, person the facilities required by section 21(5) above or to furnish … the information and particulars so required". Clause 21(5) states that The supervising engineer and every inspecting engineer for a large raised reservoir and any civil engineer employed by the undertakers for various purposes there mentioned shall be afforded by the undertakers all reasonable facilities for the effective performance of his functions; and the undertakers shall furnish him with various records, certificates, reports and other information and particulars as may be required. The argument that I used about subsection (2) applies with equal force here. It is essential that the necessary information should be given. Again, in the worst type of case £100 is insufficient.
A much more serious matter arises on Amendment No. 4, which relates to subsection (4)—something very close to fraud. Subsection (4) says: If for purposes of section 21(5) above a person makes use of any document or furnishes any information or particulars which he knows to be false in a material respect, or recklessly makes use of any document or furnishes any information or particulars which is or are false in a material respect, he shall be guilty of an offence and liable on summary conviction to a fine not exceeding £400. Admittedly that is four times the amount mentioned in the two previous subsections, but, as I have said, this is something close to fraud—making use of a document which is known to be false—with all the potentially harmful consequences which could follow from that.
Therefore, I submit that there is a very strong case for increasing that penalty from £400, and I suggest that it should be £800. It is a matter of judgment, but I think that it should be done. In Committee hon. Members on the Government 966 benches felt that something on these lines might well be attended to. I hope, therefore, that I may have the support of the Minister of State, whom we are so glad to see with us on this occasion, knowing that he has fully recovered from his recent illness.

§ Mr. Keith Speed (Ashford)
I wish to do nothing either to delay the passage of the Bill or to delay the passage of the Minister home to his bed. I endorse everything that my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton) has said. I agree with him that of the four amendments, perhaps the first amendment is in some ways the least important because, as no doubt the Minister will point out, there is the possibility of a conviction on indictment, which would incur considerably greater penalties.
It seems that my right hon. and learned Friend has the scale of seriousness absolutely right on the second, third and fourth amendments, and particularly on the fourth amendment, which is very important indeed.
This raises a very general point. 1 should be out of order if I strayed too far—I say this in no party-political sense —but in times of fairly severe inflation such as we and other countries are having, if one could have some kind of indexing of fines it might save a lot of trouble later. We hope that we shall not have to amend the Bill for some years to come. However, there is no doubt that fines which are fixed can become very much out of date in five or six years' time with the sort of inflation that the Western world has had.
I hope that the Minister will accept the amendments. He will know that in Committee and on Second Reading a number of hon. Members in all parts of the House questioned the level of fines. I hope that he can meet our wishes at this comparatively late hour tonight.

§ The Minister of State, Department of the Environment (Mr. Denis Howell)
am obliged to the right hon. and learned Member for Huntingdonshire (Sir D. Renton) and to the hon. Member for Ashford (Mr. Speed) for the constructive and moderate way in which they have approached the question of the penalties which should be involved in respect of the Bill.
967 We had a very agreeable and constructive Committee stage and we spent some time discussing the adequacy or otherwise of the penalties. I was very impressed then by the fact, as the hon. Member for Ashford has said, that there was a feeling on both sides of the Committee that in a matter such as this, where large reservoirs are involved, with a considerable potential threat to life and to property, if by mischance inadequate arrangements were made Parliament, in expressing the strong view that it intended to see the best possible arrangements made for the safety of the public, ought to take a severe view of failure on the part of the appropriate authorities to comply with the new stringent regulations we are laying down in the Bill.
I therefore consulted my hon. Friends, and particularly the Home Office, which traditionally advises the Government on these matters, with a view to seeing how far I could meet what was a universally expressed wish in this respect. I can say immediately that I shall be very happy, when the moment comes, to accept the second, third and fourth amendments on behalf of the Government. I think that the proposals being put forward do not err on the side of severity but err on the side of realism—which is what the members of the Committee were saying.
10.15 p.m.
As to Amendment No. 1, although my first instinct was to double the amount of the penalty from £400 to £800 I have been persuaded by my colleagues in the Home Department that it would be unreasonable so to do. I am not a lawyer, unlike the right hon. and learned Gentleman, who served in the Home Department with distinction and who will therefore appreciate the arguments better than I do.
I am told that ordinarily £400 is the limit which we prescribe in legislation for the fining powers of magistrates' courts in respect of purely summary offences or on summary conviction for what is known as a hybrid offence. I had not previously come across the term "hybrid offences". I have come across hybrid Bills, and they cause us enough difficulty, so I am quite willing to accept the proposition that hybrid offences are just as much an unwelcome feature of our legislation as are hybrid Bills.
968 I will state for the benefit of the uninitiated such as myself that a hybrid offence is an offence which is triable either summarily or on indictment. I am further told that the Magistrates' Courts Act 1952, as amended by the Criminal Justice Act 1967, sets a limit of £400 on summary conviction for a wide range of indictable offences. This has been taken as a model for many other pieces of legislation.
Subsection (1) of Clause 22 deals with a large group of hybrid offences. The view may be taken that these offences arc probably rather less severe than some of the others dealt with in the remaining three amendments, but for subsection (1) offences there is the option of prosecution on indictment and in that case the court would be free to impose whatever fine above £400 it thought right in the circumstances.
A further matter which I have been asked to draw to the attention of the House is that the whole question might well involve the distribution of business between higher and lower courts. The relationship between Crown courts and magistrates' courts is being considered by a committee under the chairmanship of Lord Justice James. It is therefore felt by my colleagues in the Government that, even if the House were tempted to increase the fine to £800 and even if it were not entirely happy with the arguments I have advanced, though I hope that it is, it would be wrong to take such a novel step while Lord Justice James is considering these matters. I therefore hope that the House will accept my recommendation that Amendment No. 1 should not be accepted.
The other amendments, particularly those concerned with subsection (4), deal with purely summary offences and with furnishing false information. I take a serious view of that. I agree with the right hon. and learned Gentleman that it would be a very serious matter if any authority which had to supply information in the circumstances of the Bill were to be found guilty of supplying false information, particularly to surveyors and engineers appointed to safeguard the public interest under the terms of the Bill.
Although we would not normally wish to go above the limit of £400 for reasons 969 I have given, in circumstances of furnishing false information it would certainly be justified for Parliament to mark its intense disapproval of any such offender by raising the limits of the fine as proposed in the other three amendments.
For these reasons, I advise the House not to proceed with the first amendment but to accept the other three amendments.

§ Sir David Renton
If I may have the leave of the House briefly to speak again, I propose to seek to withdraw Amendment No. 1 because I am convinced by the reasons which the hon. Gentleman has given and which seem to be good reasons. I am grateful to the hon. Gentleman for saying that he will accept the remaining three amendments.