§ 7.3 p.m.
§ Mr. Ian Percival (Southport)
I beg to move, in page 16, line 20, after '1949' insert:'in relation only to subsection (1) of that section'.Before I say anything else, let me make it quite clear once and for all that nothing I have to say in any way reflects on the British Transport Police. Many fair things have been said of them, and I accept them all. What I have to say is related solely to one particular kind of criminal offence to which I object strongly where-ever it may be found.
As there has been a certain amount of confusion on this matter, let me try first to remove any possible ground for it. Clause 20 continues the life of Section 54 of the British Transport Commission Act 1949 for another five years beyond January 1977. Section 54 has two subsections. One deals with the powers of search and arrest that are given to the British Railways Police to search persons employed by or on the premises of British Railways.
Let me again make it perfectly clear that, though in the first instance the whole of the clause was raised for discussion by way of an instruction, in the debate on Second Reading the question of the continuance of the power to search and arrest was fully canvassed and dealt with. I accept on behalf of the Opposition that the powers of search and arrest ought to be continued, and I doubt whether they are any wider than our own common law powers. However, never mind these are powers to search and arrest employees, which is a very delicate area, and it is right that the House should specifically accept the responsibility of giving to one employee the right to do that. There is no question about that.
106 However, subsection (2) of Section 54 is in a quite different category. I shall shortly say something more about the nature of this offence, because it goes to the heart of the amendment and is what it is all about. What it does is to create a criminal offence. It does not give British Railways police any powers at all. Therefore, to discontinue it is not depriving them of any powers that they have. What the amendment would do is to take off the statute book a certain criminal offence. Whether it appears here or in any other statute, the sooner it is taken off the statute book the better. Our amendment is solely to remove subsection (2) of the Act from these provisions that are extending the life of Section 54.
I must draw the attention of the House to the fact that one would not be able to glean even that much information from looking at the Bill, because the Bill, in both the index and the marginal notes, speaks merely ofPowers … as to search and arrest.What I am talking about is not a power to search and arrest but an offence the life of which would be continued by Clause 20 if we left it unamended.
Let me tell the House what subsection (2) says:Every such person.—that is to say, a person who has been arrested by the railway police under the provisions of subsection (1)—who shall be brought before any court of summary jurisdiction charged with having in his possession or conveying in any manner anything which may be reasonably suspected of being stolen or unlawfully obtained and who shall not give an account to the satisfaction of such court how he came by the same shall be guilty of an offence against this section and liable on summary conviction to a penalty not exceeding five pounds or in the discretion of the court to imprisonment for a term not exceeding two months".Let us be clear that whether or not this is an offence depends in the first instance upon by who the arrest was made. That cannot make any sense. If a policeman of the Merseyside force were to arrest a person on precisely the same sort of grounds, that person could not be brought before the court charged with an offence of this nature. However, if he happened to be arrested by the British Railways police, under their power to search and arrest under subsection (1), he might be guilty of this 107 offence—the offence being failing to give a satisfactory explanation.
Why is it said that these powers are needed? It is said that they are needed as a deterrent. I ask the House to pause and reflect upon that. In my book, when we make something a criminal offence what we are saying is "This is something that the State says it is against the interests of the State for people to do, and therefore it is a crime". Then we attach penalties to it. The degree of deterrence normally lies in the penalty. We also say, in parallel with that, that when the State seeks to see someone convicted of that offence the State must prove it. Not only is there no obligation upon anyone to prove his innocence; he does not even have to say anything.
It is true that there have been some departures from that principle. For instance, if it is an offence not to have a licence, something in which it would be very difficult to prove a negative, the burden has been shifted on to the accused to show that he has a licence, that being a matter which, if he has a licence, it should be very easy for him to show. It is a quite different matter from calling upon him for an explanation.
It is true also that, where the burden is shifted, the burden is not the same. The burden is on the balance of probabilities in the kind of case I have been mentioning. However, I hope that the hon. Gentleman who is handling the Bill will not allow the particular wording of the subsection to escape him. It is an offence not to give an explanation to the satisfaction of the court. Therefore, if the court is left in the position that it is not satisfied with the explanation, that is a criminal offence. It is a curious way in which to treat both the person concerned and the criminal law.
Why is that provision needed? Is it required as a deterrent? In 1975, only seven convictions on this charge were obtained. Numerically, therefore, it does not seem to be of much importance, but that is not the point. What is involved? Is it, or is it not, an offence of dishonesty? If it is an offence of dishonesty, should not a similar burden of proof be placed upon the Crown as for any other offence?
108 It was clear from the evidence given by the promoters of the Bill in the Private Bill Committee that if there is evidence of dishonesty they charge dishonesty—and so they should—and that this power is used only where there is not sufficient evidence to substantiate a charge of dishonesty. But what is this offence? If someone is found guilty of it, that goes on his criminal record. What is it? Is it an offence of dishonesty of which he has been convicted, or is it an offence of suspicion which he did not manage to clear? In either event it is extremely unattractive. In an ordinary charge, one has to prove a person guilty of dishonesty. If those concerned want to charge somebody with dishonesty, they should take the bull by the horns and charge him with that offence, and then everybody knows where he is.
In the proceedings before the Private Bill Committee, the Chief Constable of the British Transport Police cited several examples of proceedings having been brought under this subsection instead of charges of dishonesty. I shall go into this in more detail later if anybody wishes, but it is not immediately apparent, on the face of what he said, why charges of dishonesty should not have been laid if there was dishonesty. One can see now that the views expressed by the Minister's predecessor, as reported at column 340 of the proceedings, have been fully justified by the evidence laid before the Private Bill Committee and before the House. The Minister said, in effect, that, if people were using this provision to charge a criminal offence when they did not have the evidence to lay a charge of dishonesty, the sooner they are stopped the better. I agree.
What, then, is the effect of this offence if proved? The penalty is £5 or two months' imprisonment. What we are really saying is that this is halfway between honesty and dishonesty, so the penalty should be small. It is not really dishonesty, because dishonesty has not been proved, and so the maximum fine is £5. Or is it not more accurate to say that what we are saying is that that should be the fine for not giving an explanation? There is also the possibility of imprisonment for two months. Though that is small, it is not to be lightly considered; a man is in peril of being sent 109 to prison for two months if he is convicted under this section for not giving a satisfactory explanation.
What is also very important, as it emerged from the evidence in Committee, is that if a man—and these are mainly employees of British Railways—is charged under this subsection and is convicted, he generally loses his job. What for? Is it for dishonesty? If he is put in peril of losing his job for dishonesty, should he not be charged with that and be able to require the same burden of proof as is required for anybody else who is charged with dishonesty? If it is not dishonesty, why should he be discharged? Is it not allowing suspicion to rule the day?
I want to give the House one statement from the evidence of the chief constable. He was asked, in the circumstances with which he had been dealing, what value there was in this power, and he said:The greatest effect of this section is a deterrent effect upon members of the staff, who realise that if they are stopped in possession of property which they have come by unlawfully, they will be and can be required to account satisfactorily for its possession. If they cannot do so, to the satisfaction of the police officer who stopped them, they can be brought before a court to give the same explanation in the hope that the court will not accept it.In my view, that is a very strange way in which to look at the criminal law.
I do not want to see any man brought before a court unless charged with a specific offence which those responsible for bringing the prosecution believe has been committed and is supported by evidence. I do not want to see anyone brought before a court in the hope that his explanation will not be accepted. I am not willing to believe that the British Railways police really want to be put in this special position and that, if it was explained to them what it was all about they would take the view which has been expressed to this House. I do not want the British Railways police to be put in the position where they say "We cannot prove anything, so we shall bring the man before a court and hope that his explanation will not be accepted". If they want to be able to do that, the sooner they are stopped from doing it the better. That applies to anyone else who wants a similar power, including the Metropolitan Police.
110 The Home Office did not expand on the details in Committee, but I hope that what I have said so far will persuade the House that the view taken by the Home Office was absolutely right. It said that the extension of any such powers as this should be resisted and that where public legislation was necessary to get rid of it that course should be undertaken at the earliest possible opportunity. The Home Office is pretty well committed to that already.
The official who represented the Home Office seemed to me to have got it right when he said, at page 24:We had to consider the objection of principle to a provision which makes a man liable to two months' imprisonment for not giving an explanation for a course of conduct, which it is not possible for the police to prove amounts to a criminal offence.That is what the case is all about. Britih Railways have sent us all a statement about the Report stage of the Bill, but one will not find in it any reference to the considerations to which I have been referring the House, and which are the only ones that are relevant. I have drawn this to the attention of the promoters of the Bill. Paragraph 12 of that statement relates to Section 54. One finds there a reference to the power of the police as to search and arrest but no reference to this peculiar offence, which was the whole subject of the argument in this House and in the Committee and the subject of the only amendment that was tabled. Indeed, one can go through all the public papers in this case without getting the slightest idea that what the Bill is doing is what I have described to the House.
In paragraph 12, after referring to the powers of search and arrest about which there is no argument, the promoters say:The proposals of this clause were the subject of a debate after Second Reading on a motion for instruction to the Committee. … The Select Committee heard evidence on behalf of the Promoters by the Chief Constable of British Transport Police.….The Promoters submit that, having received full scrutiny by the Select Committee which came to a decision on the basis of the evidence before it, the clause should be allowed to remain in the Bill unamended and the powers continue to be exercised by the Board as they have for so many years past by the Board and their predecessors.I suggest to the House a number of reasons why, in addition to the general one, it should not feel bound by what 111 the Select Committee has done. It will be found in the transcript that experienced counsel on behalf of the promoters said that there were three grounds of objection taken in the House. First, the transcript says that there "could not" be powers like this in a Private Bill. I think it ought to read "should not".
The argument is that the powers are very different from anything else and that they ought to be given, if given at all, in a Public General Act. It was suggested by the promoters that these powers appeared in one Public General Act, the Metropolitan Police Courts Act 1839. So they did. I for one have been drawing attention to it from the start of these discussions and saying that that Act ought to go. Everyone agrees that it ought to go as soon as possible. The fact that it cannot go because there is no public legislation in which this can be done is no argument for continuing a provision which is agreed to be objectionable. The Minister gave an undertaking on Second Reading, and the Home Office gave further information in Committee, that negotiations had in fact commenced with a view to getting rid of those provisions in a Public Act when the chance arose.
The second point raised in Committee by counsel for the promoters was that our objection was in respect of a private police force and that such a force ought not to have these powers. My hon. Friend the Member for Sutton Coldfield (Mr. Fowler), leading for the Opposition, said specifically that it was not a private police force but a public authority police force. The discussion in Committee about police forces which are public authority police forces like this centred on the wider issue of control. It was pointed out that it was somewhat surprising to find one police force under the control of the Department of Environment so far as it was under any control at all. It was not an argument specifically related to this particular offence. But it could be said that, a fortiori, if this were objectionable in respect of an ordinary police force, it was even more objectionable in respect of one over which there was less control.
The third point, according to counsel for the promoters, was that there was no 112 precedent. I do not think this point was made very strongly at all. However, I would draw the attention of the House to the fact that a number of so-called precedents were put before the Committee which, when analysed, came down to the fact that there had been one Public Act in 1839. That was 137 years ago. It really does not bear on today at all.
§ Mr. Percival
The hon. Gentleman says that there was another. He is referring to the Transport Acts of 1962 and 1968. Tucked away in the schedules to those Acts was an extension of the powers which had previously been given to the British Transport Commission. If the hon. Gentleman really thinks that any other public legislation creates these powers, or gives them to anybody new, he has got it wrong. They were passed to the new bodies created in place of the British Transport Commission.
§ Mr. George Cunningham
The hon. and learned Gentleman says that no Public General Act other than the 1839 Act has repeated those powers. I suggest that if a Public General Act of very recent times—in 1962—has the effect of referring to these powers, they are not quite so unheard of in public legislation as the hon. and learned Gentleman is suggesting.
§ Mr. Percival
I think that the hon. Member for Islington, South and Finsbury (Mr. Cunningham) and I were both here at the time. If he noticed them at the time, he was better informed than I was. However, what happened was that the 1962 Act divided up the one organisation which had existed and allocated the existing powers to the new bodies. It did not create any new powers. If that is the strength of the hon. Member's argument, it merely doubles my misgivings about it. I am not just being clever about this. If that is the best example of public and general legislation which can be quoted, it really doubles my misgivings.
Apart from that the analysis showed there have been 20 Private Bills and one Order. What nobody seems to have drawn attention to is the fact that the Order was the subject of a special report from the Joint Committee on Statutory Instruments. The attention of the House 113 was drawn to the fact that it seemed to contain an unusual exercise of the powers in the Harbours Act, I think it was. An amendment to annul it was tabled but there was no time to debate it. I do not think that that was a very good example.
However, I hope that the Minister has taken on board the significance of the 20 Private Bills, going back to 1852. Unless we deal with the matter now, we shall have to consider a renewal of them. They will all expire under the provisions of the 1972 Act. Therefore, we ought to be clear and realise that the sensible way to deal with the matter is by public general legislation. If we do not stick to what we believe to be right, all these will come along and it will be said that we gave it to this one and the others want it as well. The fact that there were 20 Private Bills may have some weight outside this House, but that does not mean that it actually carries much weight inside the House, because we all know that with the best will in the world we cannot give much time to these.
I suggest to the Minister and to the House that that reason was not a good one. However, even if the Committee felt that it was, there is another question of greater relevance to the House. That is, that we shall have to face up straight away to the fact that there will be another 20 Private Bills coming along for private powers unless we can deal with this point now.
My hon. Friend the Member for Brentwood and Ongar (Mr. McCrindle) is present. I do not want him to feel that I did not appreciate the importance of what he said at column 354:British Transport Police feel that if their powers are taken away, they will be naked in the fight against the rising tide of crime."—[Official Report, 6th April 1976; Vol. 909, c. 354.]I hope I have assuaged both their sense of decency and their misgivings, because I really do not think that the evidence before the Committee bears this out in any way.
I come lastly to the position of the Home Office. I would not say much about this point. I think that it was absolutely right in its unqualified view, expressed both in the House and in Committee and which, I understand, it still holds. Our amendment would give effect precisely to that view, and I hope that 114 the Minister will repeat his advice to the House to accept the amendment. In particular I hope that the Minister, of all people, will not feel bound by the Committee's decision.
The Committee clearly felt that it could have used a little more help. If the Minister wonders what I am talking about, I would direct his attention to pages 21 and 24. The speech of leading counsel took 11 pages of foolscap and there was no reply. One unfortunate official—I am in no way criticising him—was brought just before 6th April and was then left to carry the whole thing. Whatever the rights and wrongs of all that, clearly it disturbed the Committee. But it is not really of importance to the House, save in this respect: that we have to take the final decision, and we must not allow our decision to be disturbed by anything which might give up misgivings about how it developed. What we are concerned with now is what is the right thing to do. I hope that the Minister will stick firmly to his advice to the House. It is good advice, and we will back him on it if it comes to a Division to see that the right thing is done.
I again ask the Minister especially to bear in mind the question of the effect as a precedent of what we do today. If we do what I assert to be the right thing, we are in no difficulty. The whole matter can be looked at at large and properly and questions can be debated as to whether all police forces or none should have this power. I therefore very much hope that the House will accept the amendment.
§ 7.30 p.m.
§ Mr. George Cunningham
I am grateful for having been called at this stage and I apologise for the fact that I shall not be able to stay for the rest of the debate. My speech will be all the briefer for that reason. Other hon. Members will want to make some of the points that I would have made in a longer intervention, but one thing falls to me to say, and I shall come to it in a moment.
I do not dissent from the general case against the principle involved in Section 54(2) of the 1949 Act, which the hon. and learned Member for Southport (Mr. Percival) has enunciated. I do not find 115 it an attractive principle that the burden of proof, whatever the strength of the burden, should be shifted to the defendant. But the question to which the hon. and learned Member did not address himself is the best method of considering whether the powers provided in the Act and in other Acts should be removed if it is decided to remove them. It does not make sense, if we are to remove those powers, to remove them piecemeal. That is how those provisions got on to the statute book and it would make much more sense to look at the matter all in all, so that all provisions of this nature can be taken together. That way of approaching it would mean that we could consider such provisions in private legislation and then the provision of powers in public legislation—principally the provision of 1839, to which the hon. and learned Member referred.
We all recognise who have read the proceedings in the Private Bill Committee that the Home Office, as I said on Second Reading, has not covered itself in glory on this matter and no doubt feels somewhat sensitive about it. I feel obliged to express my surprise that, although the Government, as is traditional on Private Bills, are not officially taking a line on this matter, the word is being spread that the Government wish hon. Members to vote for the amendment.
The Minister told me in a meeting on 10th May that it is the view of Home Office Ministers that the provision is as objectionable as his predecessor stated on Second Reading and they do not wish to retract anything in that statement. But, he went on, in the light of the consideration in the Private Bill Committee and the decision of the Private Bill Committee not to recommend to the House the deletion of Section 54(2), the Government would not invite the House to delete it.
There is something very funny going on when the Home Office Minister says one thing and the Whips say another. I am not altogether in favour of collective responsibility of Ministers, but it is the accepted practice at the moment. The Government had better sort themselves out before the end of this debate and decide whether they are recommending that the House does not accept the 116 amendment or that it accepts it. What we cannot have is the responsible Minister saying one thing and the Whips going about quietly saying something different. That is exactly what has happened in the last hour.
I hope that the Home Office Ministers will get around to doing what they should have done long ago, since they have such a firm opinion on this point now, and will look at the whole collection of these provisions, particularly the provision which exists in public general legislation, and then bring forward as soon as may be legislation—embodied no doubt in a Bill which would contain many other provisions—to deal with the whole thing at once.
That is the tidy way of doing it, the way which would make the House address its mind to the questions of principle and the questions of practicality involved. If that is to be done, the amendment should be defeated so that the Home Office is obliged to handle it in exactly that manner.
§ Mr. R. A. McCrindle (Brentwood and Ongar)
At the outset, I declare yet again an interest in this matter as the parliamentary consultant to the British Transport Police Federation. I suggest that the kernel of this debate on an extremely important matter is to be found in the last section of paragraph 12 of the statement on the British Railways Bill issued by the promoters:The Promoters submit that, having received full scrutiny by the Select Committee which came to a decision on the basis of the evidence before it, the clause should be allowed to remain in the Bill unamended and the powers continue to be exercised by the Board as they have for so many years past by the Board and their predecessors.The promoters make the point that, evidence having been submitted and the Committee having reached certain conclusions, it would be proper for the House now to allow this matter to proceed unamended.
I do not think that it was fair of my hon. and learned Friend the Member for Southport (Mr. Percival) to criticise the statement by the promoters as having failed to be over-specific about the powers under Section 54(2). Running all through the statement was a reference to the evidence submitted to the Committee, and even a cursory glance at that evidence will make hon. Members realise 117 that the powers under subsection (2) were as much under scrutiny as those under subsection (1) of Section 54. It was therefore perfectly proper for the promoters to restate their requirements in terms of these powers in broad fashion. I submit that that is what they have done and that is why the kernel of the debate should be the paragraph that I have just quoted.
We have before us at the moment a real matter of principle versus practice. I totally respect the arguments of my hon. and learned Friend the Member for Southport and those of my hon. Friend the Member for Burton (Mr. Lawrence) on Second Reading on 6th April. They say that they would not wish these powers to be given under this Bill as a matter of principle. I seem to recall putting them forward on Second Reading as a matter of hard practice. Arising out of the evidence given in Committee, not least by the Chief Constable of the British Transport Police, the practical aspect takes on considerable importance.
I thought that my hon. Friend the Member for Burton dismissed all too casually the deterrent effect of these powers. The Chief Constable outlined clearly the great importance attached by the British Transport Police to the deterrent effect of the powers in Section 54(1) and (2). He made the point that if they were to be taken away, the morale of the British Transport Police would be much reduced and that pilfering, which is already substantial on British Rail, would definitely increase. Those three points together show that the Chief Constable was putting forward a thoroughly practical reason for the retention of these powers.
§ Mr. Ivan Lawrence (Burton)
What evidence did the Chief Constable give the Committee that there had been any deterrent effect resulting from Section 54(2)? He said that he felt that it had a deterrent effect, but what was the evidence to back that up?
§ Mr. McCrindle
Without boring the House by quoting extensively from a document to which hon. Members have access, may I say that on several occasions in his evidence he referred to the deterrent effect which the British Transport Police felt that it had.
§ Mr. McCrindle
My hon. Friend must not scoff at the suggestion that this was the feeling. The British Transport police, who are endeavouring to combat crime, felt very strongly about this matter.
§ Mr. Fred Evans (Caerphilly)
It was also rightly pointed out that it would be a very brave man who attempted to quantify deterrence. What is the measure of deterrence?
§ Mr. McCrindle
I am grateful to the hon. Gentleman. who was the Chairman of the Committee, for fortifying my argument.
However, having emphasised the practical reasons for requesting that the powers remain, I do not ignore the point of principle on which my hon. and learned Friend the Member for Southport concentrated. There can be no doubt that a degree of principle is involved in this matter. Equally, there can be no doubt that the Home Office, by its recent statements, seems set on a course which will culminate in the presentation of a Public Bill to take care of it. If so, I should not wish to challenge it. I contend that termination of the powers should be sought only in a Public Bill. That is another reason why the House would be ill advised to reject the recommendation of the Committee.
I felt on reading the evidence given to the Committee, as I felt when the former Minister of State, the hon. Member for York (Mr. Lyon), addressed the House on Second Reading, that the Home Office had been guilty of cavalier treatment of the House and of the Committee members on this point, and if the penalty which it has to pay for that treatment is that we expect it to turn its attention to this matter—for the first time, it seems—and to work at producing a Public Bill to take care of the problem, so be it. The civil servants who have been involved with it have, to a large extent, been slipshod, while the former Minister of State was flippant. They must do their homework far better. The permanent solution of the problem would not be to prevent the powers from being renewed but for the Home Office to dedicate itself to bringing forward at the earliest possible moment a Public Bill to take care of it.
There will be another Private Bill sponsored by British Rail in 1977. I 119 suggest to the Minister of State that the best way of dealing with the question is to accept that, partly because of the omissions of the Home Office, the power should be renewed in a Private Bill. If it wishes never to have to face the problem again, the solution is in the hands of the Home Office. It should ensure that a Public Bill is brought forward between now and the next British Rail Private Bill in 1977.
The opposition is based, to a large extent, on the right of silence. The right of silence does not have the support claimed for it, by implication, by my hon. and learned Friend the Member for Southport and, in evidence, I should like to quote two extracts from the Eleventh Report of the Criminal Law Revision Committee. First, it stated:We propose to restrict greatly the so-called 'right of silence' enjoyed by suspects when interrogated by the police or by anyone charged with the duty of investigating offences or charging offenders.
§ Mr. Percival
Will my hon. Friend address his mind to this consideration? Whatever one says about the right of silence as a matter of evidence, this is making silence a criminal offence.
§ 7.45 p.m.
§ Mr. McCrindle
Perhaps my hon. and learned Friend will allow me to deploy my argument in the way which suits me best.
Having quoted that extract from the eleventh report of the Criminal Law Revision Committee, which, I should have thought, it would be difficult to challenge, I wish to quote this extract from the same report:The suspect will still have the 'right of silence' in the sense that it is no offence to refuse to answer questions or tell his story when interrogated; but if he chooses to exercise this right, he will risk having an adverse inference drawn against him at his trial.The right of silence appears to be such an unchallengeable matter of principle that some of us are uncomfortable at the thought of making even the tiniest challenge against it, but, in view of the evidence which I have quoted, it cannot go totally unchallenged.
We are told that, if the powers are renewed, the British Transport Police will have powers which few other police 120 forces have. Instead of being in a privileged position, with wide powers to arrest a suspect who must then prove his innocence, the British Transport Police are in no better a position than other police forces. In fact, if anything, their powers are more limited in scope than those of other forces, and in one respect—namely, that their powers under Section 54 are limited in time—they are in a worse position. Therefore, two facets of the argument of those who support the amendment seem to be in question.
This matter should not be dealt with piecemeal, and that would be the result if the amendment were to be carried. Instead of making the protest which, I concede, people have a right to make and then moving forward to a situation in which a Public Bill takes care of the problem, we should be dealing with the powers under one Act in respect of one police force. That would not be a proper way for the House of Commons to proceed.
In summary, may I say, first, that there is a strong need for a Public Bill to deal with the powers. If it is the wish of the whole House—it is by no means certain that that is the case—that these powers should be withdrawn, it should be done by means of a Public Bill. Secondly, it is right for the British Transport Police, for reasons of deterrence and the other reasons which I have mentioned, to retain the powers in the meantime. Thirdly, the Home Office should be told that how quickly it removes these powers, which it would seem to some of us it has suddenly become aware of, is for it to decide. Therefore, the promoters' submission which I quoted at the beginning of my speech is a proper reason for the House to reject the amendment.
The House should think long and carefully before it rejects the recommendation of a Committee of this sort. The Committee had the advantage of listening to all the evidence about the powers we are discussing. It decided that they should be retained. The House would be well advised to be careful before rejecting its unanimous submission.
§ Mr. R. B. Cant (Stoke-on-Trent, Central)
I was appointed to serve on this Committee. My instinctive feelings were to support those who have argued tonight that these powers should be withdrawn from the British Railways police. 121 However, the more I listened to the case in Committee, the more I was persuaded that the powers should be retained.
I always feel intellectually and otherwise deprived when in the presence of lawyers. I often feel unhappy that my education has been in figures of arithmetic rather than in figures of speech. What struck me forcefully in the Committee was that, although an important question of principle was involved, there was also a serious practical problem and that in a sense, although no one would suggest that it was a unique problem, it was one with unusual characteristics.
It is inevitable that a great deal of pilfering should take place from British Rail. It is not as though it is an organisation or an operation dealing merely in warehousing of goods and articles some of which might be stolen from its warehouses. Employees and members of the public inevitably have access to goods which belong not to British Rail, but rather—I do not know what the legal position is—to those on whose behalf British Rail is performing the service.
This is an enormous problem. I will not go into the figures set out in the report. There are many instances involving not only employees of British Rail, but members of the public who infiltrate British Rail's premises. A large number of thefts come under Section 54(1) and not Section 54(2).
The question is whether in this complex situation British Rail should be denied special powers to apprehend, if that is the right legal word, people found in close proximity to its business, or whether such people must be allowed to go scot-free once they get outside the gates.
§ Mr. Lawrence
Will the hon. Gentleman confirm that that is the impression he got from the evidence as to what the result would be if this subsection were to be deleted?
§ Mr. Cant
That is certainly one of the practical problems that arises. The figures involved are not sufficiently great to constitute any threat to human liberty or freedom. On the other hand, they are not sufficiently small as to be insignificant from the point of view of the business operation.
122 One of the difficulties is that the Home Office has adopted a peculiar stance. I will not say anything more about the official involved, although any words of criticism of a civil servant might be a sort of kiss of life to his career. Judging by the evidence we had from counsel for British Rail about this official's rôle, it seems either that the Home Office has been particularly offhand in its dealings or that the Home Office itself has just awakened, as the predecessor of my hon. Friend the Minister of State seemed to have awakened, to the fact that these powers not only existed but that something should be done about them quickly.
Over a year ago counsel for British Rail attempted to learn the attitude of the Home Office. They wrote to the Home Office again in October saying "Would you please acknowledge or reply to our letter of April?" They received no acknowledgement of or reply to that letter. On 6th April the Home Office condescended to put its thoughts on paper. I cannot believe that the Home Office was concerned at this moment to bring to an end the powers that British Rail has had, quite apart from reconstructing its thoughts about all the other Acts that give powers of one sort or another.
This ad hoc approach to what is said by the lawyers, perhaps quite rightly, to be a fundamental principle of British justice is not good enough. I am not sure whether it is right that one should ask the Home Office not to insist that our Ministers or our Whip's Office tell us more, in the interests eventually of having a Public Bill or not having a Public Bill. I am by nature profoundly suspicious of civil servants, although I believe that our civil servants are the best in the world.
British Rail has a problem, and it just is not good enough for the Home Office to coerce the Minister into saying "It cannot enjoy the powers that it has had because we have suddenly awakened to the fact that these powers are an infringement of human liberty." If my interpretation is too simple by half, I am open to persuasion.
I will not go on for too long, because I understand that there are other problems connected with British Rail which hon. Members are anxious to discuss. I 123 am a great believer in not making changes unless somebody, apart from civil servants and lawyers, is bringing pressure to bear. The only people who would persuade me as a practical man to do anything about this would be the trade unions.
I specifically asked the Chief Constable of the British Transport Police this question:Could you tell us the trade union reaction to this power?He said simply that there was no problem. Later I said:Mr. Moriarty is right in saying that provided these powers are renewed every five years, the trade unions are reasonably happy?The answer was:They are quite happy, yes.We have an obligation to ask not only the Home Office and British Transport Police but the trade union movement in this period of public participation what it thinks about this matter. If it is happy with it, I think we should leave it. After all, it is a situation which reflects on all people employed in British Rail.
It has been said that the trade unions were not happy that there should be black sheep, and they wanted something done about it. I think this proposed action is wholly premature. The amended Bill should be carried. If we are to have an unholy alliance of the Government Front Bench and the Tories, working together to defeat the Bill, that would be a great pity, if not an insult to the Committee which considered the Bill.
§ 8.0 p.m.
§ Mr. Lawrence
I begin by saying that I have nothing but admiration for the activities of the British Transport police. I do not blame them for trying to retain the Bill in its present form. If my hon. and learned Friends and I really believed that the police would in some way be prejudiced by the acceptance of this amendment, we should not be so enthusiastic in our resistance to this part of the Bill.
What I have found absolutely astonishing about the debate is the way in which a number of hon. Gentlemen, whom one would in normal circumstances expect to be supporting the part that is being played by my hon. Friends and myself 124 in trying to hold on to a fundamental principle of British justice, are resisting us. The principle of the right to silence is very simple. It is a protection against the innocent being convicted.
The right to silence means in effect that a person is presumed to be innocent rather than presumed to be guilty. This clause unamended requires that somebody who is found on property in suspicious circumstances is to be presumed to be guilty and that if he does not give a satisfactory explanation of his presence on the property, he will be convicted.
It was with astonishment that I heard the hon. Member for Stoke-on-Trent, Central (Mr. Cant) saying that he doubted whether our approach would have the support of the trade unions. All those who have ever appeared in courts and have fought for justice for their client and for the application of the principle of the right to silence know that the people most concerned with upholding it are the ordinary working people in our society who have difficulty in understanding exactly what may be the proper processes of the law when they are confronted by police affairs or solicitors.
§ Mr. McCrindle
Does that not make it all the more remarkable that the trade unions which are principally concerned are not opposed to the powers, nor opposed to the continuation of the powers, provided that renewal takes place every five years or so?
§ Mr. Lawrence
I cannot conceive that if the trade unions had really considered what was at stake they would adopt my hon. Friend's attitude. One reason why we raised 'his matter in the first place was that here was an important principle of our law being swept away and this action did not actually appear on the face of any legislation. One could look at this Bill without seeing what was happening.
My hon. and learned Friend the Member for Southport (Mr. Percival) has repeatedly said that one of the results which must come out of this is that before any action of this kind is taken to interfere with fundamental principles, it should be clearly stated on the face of legislation. It does not surprise me to be told that the trade unions are not aware of the real significance of this 125 proposal. No one reading the Bill could see what was happening.
I quote from what people who are far more eloquent than I have said about the right to silence so that the significance of it may sink into the minds of hon. Members. Sir Herbert Stephen wrote a letter to The Times in 1898, saying:Many people cannot in answer to questions, give a plausible coherent and honest-sounding account of any matter in which they have a strong personal interest, while they may in spite of that constitutional defect be innocent of the specific crime alleged against them.I have a quotation from one of our current judges, Mr. Justice MacKenna, writing in the New Law Journal in 1970:Under cross-examination persons innocent of the particular crime with which they are charged, though guilty of others, or at least of indiscreet behaviour, may involve themselves in contradiction, and say improbable things, and give the appearance of guilt. The right not to give evidence can be a safeguard for the innocent. Bad witnesses are sometimes wrongly convicted; perhaps more often than you think.That is a general statement on the meaning and importance of the right to silence.
The present situation with which we are concerned, however, is far worse than that. What those two distinguished judges were referring to was evidence—the right not to have to commit oneself to a form of words which may be considered by a jury in the stress of the circumstances to be saying that one is guilty of a crime. But here it creates not just a matter of evidence but a criminal offence. That is a very serious matter.
Some may have different views about the rules. Some may consider that the time has come when there are so many problems, difficulties and stresses in our society that the rules ought to be changed, that no man ought to be presumed to be innocent and should instead be presumed guilty and that there should be placed upon a person the burden of proving his innocence. But that time has not yet come so far as Parliament is concerned.
If one says "This provision has been here since before the nationalisation of the railways in 1949", I reply that it has not been noticed as having been here because this and so many of these similar pieces of legislation have lain on the table and have had to be prayed against by way 126 of the negative procedure. In the hothouse of this place we have missed them.
§ Mr. McCrindle
I apologise for breaking in again, but it must surely have been noticed by the very trade unionists against whom my hon. Friend suggests the existence of the power is aimed. If it has been noticed by them since 1949, is it not surprising that virtually no challenge has been made against the existence of this power since then?
§ Mr. Lawrence
The reason may be that the power has been little used and therefore little noticed. I do not know what the reason is. It does not matter to me whether the trade unions are against it or for it. It is a matter of principle of great importance and it must be considered by the House.
On Second Reading I said that if the matter was not withdrawn and was left to the Committee, anything might happen. It did. The Committee, against a principle which in their heart of hearts I expect all hon. Members must have supported, and, against the strongest possible advice from the Home Office. decided to keep the provision in.
What went wrong? To begin with, a reading of the transcript will show that learned counsel—I do not blame him, but it is a fact—spent a considerable period of his time, as it were, conveying to the Committee that this matter had not really been considered very carefully on Second Reading. That would be a very good point if it were valid, and I can understand that view breaking down the resistance of hon. Gentlemen who formed the Committee.
But what was more important than that was the apparent—I can only read from the transcript since I was not there—performance of the witness for the Home Office. In the circumstances, it may well be that there was a reasonable explanation for his being inadequately briefed.
However, when a witness answers questions in this way—I think that the question should be put to the Minister concernedand:Is it not your job to know that these provisions exist? Who is responsible for drawing attention to them?—Answer, it is certainly the responsibility of the Home Office. We have other things to do"—127 and so on, and so forth, it is not surprising—and I am not criticising them for it—that the members of that Committee concluded that if this was the stand that the Home Office was taking without giving adequate thought to the matter, it must come back for greater consideration, They were not getting the assistance they had hoped for from the Home Office.
§ Mr. Lawrence
The hon. Gentleman is helping to make my point. He was irritated with the Home Office because of its delays, its slowness in answering the letters, and he therefore lost confidence in its witness.
§ Mr. Lawrence
It must follow. But the point is that it does not matter how well a witness did—it does not or should not affect the principle. The decision on principle is either right or wrong. If a witness is not adequately briefed or cannot give an explanation for the slowness of the Home Office in answering correspondence, it is an unsatisfactory situation. But it should not affect the decision on the principle.
§ Mr. Lawrence
I understand the hon. Gentleman's feeling of dissatisfaction, anger and irritation. But the fact remains that the Home Office made clear on Second Reading, through the Minister of State himself, that it thought this provision unsatisfactory and that it should not remain in the Bill. It was not something thought up later. It had always been in the mind of the Home Office that the situation was unsatisfactory. The whys and wherefores of the detail are neither here nor there.
But, and even more significant, it appears that the hon. Gentleman was 128 under what I can only suggest to have been a substantial misapprehension, to the extent that this understanding was that, without this provision, the British Transport Police would be naked, that there would not be sufficient deterrence and a blow would be struck against law and order rather than for it.
The point was made by my hon. Friend the Member for Brentwood and Ongar (Mr. McCrindle) that there is some power in this subsection helping the British Transport police to control the villainy that goes on in their scope of operation. But there is not the slightest jot or tittle of evidence to suggest that subsection (2) as opposed to subsection (1)—the power to stop and arrest, which is more likely to be a deterrent—is a deterrent which will prevent a man from stealing from the docks or the railways because, when stopped, he will have to give an explanation.
I have never met a criminal who said that he was deterred by such a measure. Deterred by stop, arrest and search, yes, but not by such as subsection (2). But this power is not even necessary. As a matter of law, one does not have positively to identify items as having been stolen or having been stolen from any source. There is a whole line of decisions in criminal law, from the case of Fuchillo, decided in 1940, onwards, which says that it is enough under our existing rules for the prosecution to prove, from the mere circumstances in which a man comes to be in possession of something that they have been obtained in a dishonest way. There are countless cases.
The police do not much use unlawful possession. They bring prosecutions for theft. They do not have to prove the loses or identify the object, provided the circumstances in which the goods are found are themselves a convincing case that the goods have been dishonestly obtained.
If a man having been warned of his right to be silent gives an answer which later is clearly faulted, or gives an explanation for his possession of articles which is patently absurd, there is adequate ground in our existing law to convict him of theft without doing violence to any fundamental principles.
129 But these matters were never before the Committee. I have read the evidence. Learned counsel took the Chief Constable through the deterrent value of the provision and the need for this provision. He did not suggest that there was the case of Fuchillo and a whole line of cases showing that the police did not have to identify the source of the goods or the fact that they were positively stolen. If the hon. Member for Stoke-on-Trent, Central and his colleagues had known that, and if they had not been so angry with the Home Office, perhaps they would have accepted completely, as mostly they did, and for good reason, the assurance of the Home Office.
The Home Office as a Department is an expert on this sort of thing. It was right in this case, and the hon. Gentleman must know in his heart that the preservation of the right to silence is the right course. This provision will mean a criminal offence which, in the end will hurt the working man in the docks and railways far more than it will hurt anyone else. I ask the hon. Gentleman and his colleagues not to resile from the position that the Home Office rightly took on Second Reading and which I hope it will take tonight.
§ Mr. John Mendelson (Penistone)
From what has been said so far—and of course we have not heard from the Minister yet—one gains the impression that it should be possible to reach agreement in favour of leaving this provision out of the Bill. But I do not think that the hon. Member for Burton (Mr. Lawrence), with whose argument I basically agree, has correctly stated the motivation which led my hon. Friend the Member for Stoke-on-Trent, Central (Mr. Cant) to adopt the view he has taken. I think that the reasons advanced so far do not necessarily lead to a contradictory conclusion.
As I understood it, my hon. Friend was not arguing that he was angry with the Home Office—or, at any rate, that his anger made up his judgment. After all, he has too much experience of central and local goverment to have his mind made up because he happens to be angry with a Department of State. If that happened to be the view of hon. Members generally, our minds would be made up for us on many occasions by emotional attitudes towards a Department of State. I understood him to say that 130 if the Home Office is so opposed to this provision, it should have given more evidence of how strongly it felt on the matter. That was the burden of my hon. Friend's case, not that his anger had led him to a particular conclusion.
It is because he did not see that evidence that he mentioned more than once the long delay of the Home Office in replying to correspondence. That was why he came to his conclusion about the hesitation shown by the Home Office. If that is his reason, it ought to be possible by argument to persuade him that he should join those of us who feel that the fact that the Home Office—although believing that this provision ought to go—has not been diligent enough in pursuance of a correct point of view should not deter the House from coming to the right decision this evening.
The argument put forward by the hon. Member for Brentwood and Ongar (Mr. McCrindle), seems to me to be not an insuperable ground for failing to agree in the end with the proposition that this provision ought to go. The hon. Gentleman's argument is not intrinsically one which supports the provision.
One of the most remarkable aspects of the debate so far has been that this provision has no friend in the House. Some hon. Members have attacked it vehemently but no one has defended it. The hon. Gentleman, who was a member of the Committee, argues that we should leave well alone for the time being, because the provision ought to be got rid of in a general Bill for which the Home Office, as a Department of State, ought to be responsible. He hopes that it will be so responsible.
On the other hand, it could be put to the hon. Gentleman that that is no reason for not doing what can be done tonight in this particular case, especially in view of what my hon. Friend the Member for Stoke-on-Trent, Central has told us about the lack of diligence with which the Home Office has so far been proceeding in this matter. There is no insuperable reason why the hon. Gentleman should not also agree that the provision ought to go.
I turn now to an argument with which normally I would have a great deal of sympathy. That is the argument concerning the attitude of the trade unions 131 concerned. We must always be mindful of how the people most directly affected feel about a provision concerning their members. On the other hand, I submit that where great principles of law and justice are involved, it cannot be regarded as absolutely final when a trade union in a particular situation comes clearly to a conclusion that its members need protection.
Whether a trade union has violently protested about something or not, it is for the House of Commons to make up its own mind as to what is required in the interests of a great principle of justice. The House must do what is right in such a situation and tell the trade union that the House has done what it believes to be right.
When as a Member of Parliament I report to various meetings of shop stewards and trade union organisations on, for example, the new maternity rights legislation passed by the House, although I do not believe that trade unions in my part of the country are less well informed than those elsewhere, I often find that some of the provisions come as a surprise to some of them when they have not been agitating for such provisions. This does not mean that the House was not right in doing those things for which there has not necessarily been agitation in every detail.
The House of Commons sometimes has to be in advance of others where matters of great moment are concerned, particularly principles of justice. It does not always have to wait for outside organisations to demand action before it takes action. That, again, should not be an insuperable argument for not taking action tonight.
If the Chief Constable has argued that a particular measure is a deterrent, that is the most suspicious reason of all. In my experience on Private Bill Committees, counsel cannot be faulted when giving only limited information. The hon. Member for Burton has told us that the report shows that counsel did not quote all the cases that the hon. Gentleman has quoted in the debate this evening. One of the weaknesses of the hon. Gentleman's profession is that when pleading a case, having been employed to do so by a particular party or organisation, 132 counsel strictly confine themselves to saying as much as is necessary and no more. They do not go beyond their brief.
I think that this is the explanation of the limited case put forward by the hon. Gentleman in Committee. Obviously, there is much more to be said. But this is only the professional limitation we must expect from professional lawyers. This is what is so dangerous.
I take much more seriously a judgment which comes from a police officer. Very often what people describe as a deterrent involves a serious limitation, as the hon. Gentleman has so rightly said, particularly upon people who do not find it easy to express themselves, who are not very glib with their tongues, and who are not always the best people to speak up for themselves. In this respect the provision is dangerous, and I am deadly serious about this.
After the Minister has given his agreement to the course which has been urged, I hope that we shall be able to agree that this provision ought not to survive.
§ The Minister of State, Home Office (Mr. Brynmor John)
This being a Private Bill, in no sense in my intervention am I winding up on behalf of the Government. This is not a Government proposal. During the course of this short debate my Department has been showered with criticism and advice, the exact proportions of which have varied from speaker to speaker. Two questions have arisen in the debate: first, what is the Government view about Clause 20 as it now stands; and secondly, how it is proper to proceed?
I can give the House straight away some guidance as to the Government's attitude. My hon. Friend the Member for York (Mr. Lyon), when he spoke on Second Reading, took the view that it was wrong in principle to have a provision of this kind in any Bill. I share his view concerning that principle, which is cherished by the English law for the protection of the innocent. Consequently, I believe that if, as in the case of Section 54(2) of the 1949 Act, a man is presumed guilty unless on the balance of probabilities he proves himself to be innocent, that is a measure which I could not possibly approve.
My hon. Friend the Member for Stoke-on-Trent, Central (Mr. Cant) had the 133 advantage of serving on the Committee and, therefore, of hearing the evidence. I may say that, if he feels some diffidence in the presence of lawyers, it is nothing like the diffidence which I feel in the presence of statisticians or anyone who can add. My hon. Friend argued forcibly that, first, the Home Office was slow in coming into this matter and tardy in its response to British Rail. The then Minister of State apologised for this on Second Reading, and I reiterate the apology of the Home Office. There was administrative inadequacy in failing to respond to correspondence. There is no question but that matters went unanswered, and for that we are sorry. We have no excuse to make, and I have taken steps to see that it does not recur. But my hon. Friend's criticisms about the lateness of the rethink and the incompleteness of the examples are matters which do not go to the root of the argument.
In much of the argument today, I detect an attitude which is best summed up in the title of the novel "The Singer not the Song". It has been the Home Office, for the way in which it has approached this matter, which has rightly attracted criticism, rather than the principle itself.
I think that the argument should, on the first head, be directed to whether the principle was right or wrong in detail. I do not think that anyone defended that wholeheartedly, as my hon. Friend the Member for Penistone (Mr. Mendelson) pointed out. On the first stage of the argument, therefore, I say that if the House is asking whether the Home Office has still the same view in principle about this measure, my answer is that it has.
But the second stage that we have reached is how we go about correcting the provision. In other words, what is the proper procedure to adopt now that a Committee dealing with Private Business has spent two and a half days examining the details and has delivered a report?
I am not attracted by the argument of my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham) and the hon. Member for Brentwood and Ongar (Mr. McCrindle) in saying that we cannot deal with a matter piecemeal and 134 that we have to deal with it in some great Public Act. How Members on both sides of the House will know the difficulty of getting time for public legislation. If, by some miracle, in three months we produced a Public Act to repeal this provision, the provision in the Bill just having gone through, I should understand the criticism.
I must make one point in the absence of my hon. Friend the Member for Islington, South and Finsbury. He has left us, for reasons which I understand. But, as I told him in the interview which he partly quoted to the House, since he takes the view about this Bill that he does, he is entitled to look to the Government at the expiry of every other Private Bill, as and when it falls, to take the same view in principle. But again, on behalf of the Government, I am a little chary of making any great governmental intervention in what is, after all, a Private Bill procedure and what is, at the end of the day, for the House of Commons as a whole to decide.
It would have been unparalleled for any Government to have sought to amend the recommendation of a Committee. We did not seek to do that. I believe that the right course for the Government to take is to say quite firmly that this is a matter for the House as a whole to decide. That being so, it is my intention to abstain in the vote. It is for the House of Commons as a House of Commons to make up its mind on the arguments, both as to principle and as to practice, whether the amendment should be carried or defeated.
§ Mr. A. G. F. Hall-Davis (Morecambe and Lonsdale)
I shall try to be extremely brief, but some of the comments which have been made have not contributed to silence on my part.
First, I wish to make it clear to my right hon. and hon. Friends that I did not in any way treat the matter lightly. I do not think that anyone can treat lightly a clause dealing with the apprehension of transgressors. However, we know from British Rail that in 1971 there were 44,000 cases of theft whereas in 1975 there were 60,000.
My hon. and learned Friend the Member for Southport (Mr. Percival) said that there was a point of principle involved and that it was a question of the liberty 135 of the subject. It was this very point which decided the issue for me, for reasons I shall mention in a moment. Nothing that the Minister of State said contributed to my changing my mind about the decision which I reached in the Committee. My hon. and learned Friend the Member for Southport said that the Committee was establishing a principle. I accept that, but what has not been referred to sufficiently in the debate is that this is not a power unique to this Bill. The power is possessed by the Metropolitan Police, and according to the last and only year for which we were given figures—which were not challenged by the Home Office—377 prosecutions were brought by the Metropolitan Police and these resulted in 250 convictions.
My hon. Friend the Member for Burton (Mr. Lawrence) asked what went wrong in the Committee. I can assure him, certainly for my own part, that it was not that we had failed to read the Second Reading debate and the powerful arguments advanced there by my hon. Friend. Any member of the Committee who had failed to read that debate would lay himself open to criticism. I appreciate the force of the arguments put forward then.
The arguments of learned counsel did not deflect the Committee members from making a proper assessment of the arguments advanced on Second Reading. What went wrong—for me at any rate—was that, when we asked the Home Office whether it intended firmly to take action to deal with this as a matter of principle in a public Bill, it was unable to give that commitment.
Let me refer to the statement by the Home Office, because for me the evidence on this point was decisive. We were told:It is true that there are no current plans to repeal the provisions in the Metropolitan Police Courts Act 1839 and the Public Stores Act 1875, but it is also true that on the instructions of our Ministers we are opening negotiations with those responsible for administering these offences in other Departments and in the Metropolitan Police to see whether it is possible to repeal the provisions. Our Ministers fully accept that the objections that have been made to section 54(2) apply to other examples of that offence and they would like to be consistent. I cannot give the Committee an assurance that Government legislation will be introduced to effect that change.136 I would have found an assurance of that kind in Committee decisive in my attitude to the provisions. Again, it would have been decisive this evening.
There is a difference between the employees of British Rail and the general public who are subject to the powers of the Metropolitan Police. British Rail employees are to some extent in a position of trust. They can leave the employment if they do not like the provisions which apply to them. But if the Government attach such importance to the matter that they say they will oppose provisions similar to this in every Private Bill—that was the categorical statement of the Minister of State—why are they unable to say that the public will demand a Public Bill to that effect and that while the timing is difficult they intend to introduce such a Bill? The Minister of State did not give that assurance.
§ Mr. John
The hon. Member should be fair and quote my exact words. I said that the Government should be consistent in their attitude in principle to all these Bills. That was what I said about private Bills as they fall in and about public Bills. The discussions to which the hon. Member refers are being undertaken to see whether we can put our own house in order. I am determined to see whether that can be done.
§ Mr. Hall-Davis
That is a little more of a commitment than we have had hitherto. The Minister of State is stating his own position, but he is unable to say that Government legislation will be introduced to effect these changes in a Public Bill. I believe that Public Bills should take precedence over this Private Bill. I cannot pronounce on the other Private Bills since I have not seen their terms or listened to the evidence on them. I can assure my hon. Friend the Member for Burton that I listened to the Second Reading debate and endeavoured to address myself to the merits of the case. I would have accepted a firm assurance from the Government that legislation would be introduced.
If the balance of argument on a Public Bill is such that it requires negotiation and a firm decision cannot be given, the change in the position against the present social background should follow this legislation and not precede it.
§ Mr. Fred Evans
I have little to add to what has been said but I want to touch on one or two issues that have been raised. The hon. Member for Burton (Mr. Lawrence) seemed to call in question the attitude of the Committee in examining the problem. I can assure him that the Committee was objective and was not moved by emotional arguments.
The hon. Member also questioned the capacity of the trade union movement to examine these matters in necessary depth. Unions have their legal departments and they are fully seized of the problem. I understand that in the past they have expressed themselves and that they are content at the moment because of the time limit for the renewal of the powers.
I now return to the part played by the Home Office in 1975 when the powers came up for renewal on an opposed Bill. The then chairman fully argued the case in Committee and took the view that the power was undesirable unless it was contained in public legislation. For that reason, to give time for the introduction of public legislation, the period for renewal was shortened. But there has been no public legislation.
It is important that the House should know the part played by the Home Office. I do not want to go into the time scale of letter writing but it was considerable. The Home Office was contacted and in one of the letters was told:Having regard to the time-scale for Private Bills, you will appreciate that, unless it is the intention of the Secretary of State to introduce next session such legislation, the Board must themselves seek an extension of these powers in their Bill to be deposited in November.The Home Office was again contacted in October and an answer was obtained in time for the Second Reading debate. The Committee had an opportunity of perusing a statement from the Home Office which said:The Secretary of State is aware that similar provisions to section 54(2) of the 1949 Act exist in local legislation…"—the Liverpool Corporation Act and the Port of London Act were mentioned—There are no current plans to repeal those provisions, but they are not regarded as entirely satisfactory and their existence is not seen as sufficient reason to justify the continued operation of section 54(2) as proposed by Clause 18 of the present Bill".138 Towards the end of the evidence by the Home Office to the Committee there was a statement that approaches towards negotiations were taking place at the time, so the story evidently did not stop at that final paragraph in the Home Office statement.
The arguments about British Rail's assessment of the deterrent value have been advanced tonight. Whilst it regarded subsections (1) and (2) as linked for reasons of deterrence and so on, the British Rail counsel said:Until the Secretary of State has been able to adopt a clearer position in relation to this matter…if the Railway Police find these powers of value the Committee will, I hope, hesitate to deprive them of the combined effect of the two subsections. They go together and while I think we fully apprehend the dislike and indeed the danger of changing the burden of proof, because the scope of subsection (2) is so limited"—that is, to employees of British Rail and their being found on premises and so on—and because it does serve as a deterrent, we hope that it may be allowed to continue for this limited period.In other words, in that submission British Rail is saying that if the powers are to be eroded piecemeal, rather than there being general legislation which gets rid of the anomaly at once, it wishes to continue with the powers which, on the police evidence submitted to the Committee, it finds acceptable. The point has already been made tonight that the time involved in piecemeal legislation could be quite considerable and could lead to all kinds of anomalous situations.
We did not listen to the arguments with any sense of being annoyed with any witness at any stage in the proceedings. I am satisfied that the Committee reached the conclusion that it did on the weight of the evidence put before it.
§ Mr. Percival
With the leave of the House. I should like to take two minutes to reply. The hon. Member for Caerphilly (Mr. Evans) summed the whole matter up in the expression "on the weight of the evidence which was heard". A great deal of the case has been deployed in the House. Members of the Committee who have spoken seem to feel that there is something personal in this attack. There is not. It must 139 happen on occasions that the House takes a different view from that of a Committee, but there is no sense of disrespect.
As the Minister said, there has been a good deal of emphasis on the delay of the Home Office. We all agree that that was very bad, but that matter is on the singer, not the song, and we are now concentrating on the song.
What has emerged from the debate is that we all seem to be agreed that this offence should not exist in our criminal law, and we wonder how to get rid of it. Without the amendment, we are renewing it for five years. If we pass the amendment, the power goes at the end of next year. All the powers in the 22 Private Acts will expire in the next year or two, because all those Acts expire under the 1972 Act.
If we extend this power now for five years, how shall we resist an application to extend all those, with two more Bills waiting in the queue? If we do what the amendment says, we get rid of it from next year in this one Bill. Then, when any one comes forward for renewal we can say "The House decided that it does not want this offence to exist", and that leaves only the 1839 Act to get rid of. The Minister made clear that that will be done as soon as there is an opportunity.
Members of the Committee may now feel that they have had the advantage of a much wider-ranging debate and agree with the analysis of the hon. Member for Penistone (Mr. Mendelson) that the right thing is for us all to reach agreement now. If, unhappily, that is not possible, I ask all those who believe that the offence should no longer exist to support the amendment in the Division Lobby.
§ Amendment agreed to.
§ Bill to be read the Third time.