PENALTY FOR PRETENDING TO BE REGISTERED, ETC. (Hansard, 22 April 1977)

§ Mr. Clinton Davis
I beg to move, Amendment No. 57, in page 16, line 41, at end insert 'who wilfully'.

§ Mr. Deputy Speaker
With this we may take Government Amendments Nos. 58, 61, 64, 65 and 68.

§ Mr. Davis
The purpose of these amendments is to insert the word "willfully" in the expression in Clause 23 about making it an offence to "take or use" the name of insurance broker. I think that this goes a long way towards accommodating some of the anxiety expressed in Committee about some matters that could arise here. In doing this we are following the precedent of Section 21 of the Solicitors Act 1974 and Section 31 of the Medical Act 1956, under which it is the wilful taking or using of the name 641 "solicitor" or "registered medical practitioner", as the case may be, that constitutes an offence.
Amendments Nos. 57 and 64 are the substantive amendments. The others are consequential.
I want to make clear that the normal use of a passport—this was the concern of the hon. Member for Faversham (Mr. Moate) in Committee—containing the reserve title "insurance broker" is not intended to constitute an offence. What the hon. Gentleman was concerned about in Committee was whether it would be an offence to be described as an insurance broker in documents such as passports that were issued before the passing of the Bill. I have looked at the matter very carefully and I am advised that it would be most undesirable to specify in the Bill that such conduct would not constitute an offence.
The reason for this is that other statutes conferring exclusive right to a name on certain professions—doctors, nurses, dentists, opticians, solicitors and pharmacists—and which are worded in a similar way have no such provision. Therefore, that would be unprecedented and to include such a provision in this Bill would or could create the presumption that exmembers—for example, retired members—of those professions that I have mentioned who failed to have their passport amended on ceasing to practise would be committing an offence.
In any case, I am advised that the normal use of a passport describing a non-registered person as an insurance broker would almost certainly not be an offence under this clause, even without insertion of the word "willfully". Nevertheless, we want to put the matter beyond reasonable doubt.
I hope, therefore, that hon. Members will agree that the amendments that I have proposed go as far as we reasonably can to remove doubts on this part of the Bill. To go further would produce no practical benefit but would bring into question the interpretation of these provisions and existing statutes and could, therefore, risk embarrassing members of other professions. I hope that the hon. Member for Harrow, West (Mr. Page) will feel that we have tried to move in the direction that he was referring to upstairs.

§ Mr. Moate
I concede that the Under-Secretary has gone out of his way to acknowledge that the point that I and other hon. Members were making in Committee was a valid one, although that point was rather denied at the time by a number of hon. Members. However, I cannot really say that the Minister's reply meets the point that I was making. Perhaps I can emphasise why. I was concerned, and still am, that this Bill seeks to place a legal barricade around the term "insurance Broker".
For centuries, individuals have called themselves insurance brokers, whether or not they are in business on their own. They have used the term "insurance broker" to describe their professional occupation. They may be directors, partners, junior employees or whatever, but they are insurance brokers. When asked in a pub "What do you do for a living?" a chap might reply "I am an insurance broker".
We know that the Bill as it stands would make it an offence to call oneself an insurance broker. At the moment it would incur a penalty of up to £400 but a subsequent amendment seeks to increase that penalty to £1,000. I still argue that the Bill would make criminals out of all those 50,000 people—more. I suspect—who are employed as insurance brokers and who call themselves insurance brokers. In future they would be committing an offence if they wilfully called themselves insurance brokers.

§ Mr. Shersby
What my hon. Friend says is surely incorrect. They will not be committing an offence unless they do it wilfully. There is the question of whether they are registered insurance brokers. If they are registered insurance brokers there is no reason why they should not call themselves insurance brokers. Surely the whole point of my hon. Friend's Bill is to ensure that people who use this description only do so if they are registered. That surely nullifies the point that my hon. Friend the Member for Faversham (Mr. Moate) is seeking to make.

§ Mr. Moate
I do not think it does. I said they would be committing an offence if they wilfully called themselves insurance brokers. In a moment I shall explain what I understand the word "wilfully" to mean. They would be 643 committing an offence if they wilfully used the term "insurance broker" when they were not registered insurance brokers. In practice, of course, the majority of insurance broking employees would not have any reason to be registered I suppose they could become registered. An employee, perhaps with the intention of setting up business on his own, might seek registration. There is no reason why he should not. As employees with a number of years experience and with the qualifications they could apply to be registered and thereafter legally call themselves insurance brokers. But the majority of employees would not do so. They have no reason to do so and it would be rather foolish if they did because we would have the most enormous register and the whole thing could become unworkable. They would have to pay fees and that is a disincentive.
In Committee the hon. and learned Member for Hackney, North and Stoke Newington (Mr. Weitzman) and I actually put down amendments which sought to be helpful in this respect and which argued that the term to be protected was not "insurance broker" but "registered insurance broker". We thought that would have made the position clear. If the person called himself a "registered insurance broker" that would be an offence just as a person calls himself a chartered accountant, when he is not, is also committing an offence.

§ Mr. Clinton Davis
On a point of order, Mr. Deputy Speaker. I draw your attention to the fact that there were amendments which you did not think it appropriate to call dealing with the whole argument about "registered insurance broker". What the hon. Gentleman is saying does not seem to be relevant to the argument that I was seeking to adduce or to the amendment before the House.

§ Mr. Deputy Speaker
That is my impression. Perhaps the hon. Member for Faversham (Mr. Moate) will return to the amendment under discussion, which is No. 57.

Mr. Monte
Thank you, Mr. Deputy Speaker. Perhaps I may explain what I believe to be the real relevance of the point that I was making.
644 We are talking about a new criminal offence. The Minister said that acceptance of the amendment to insert the word "wilfully" would meet the point that we had been making that individuals would be guilty of an offence if they called themselves insurance brokers. By referring back to the registration argument I was illustrating one way in which we could have avoided that individual being accused of committing an offence. The Minister chose to resist that proposition. That would have got him out of his dilemma. He is saying that the use of the word "wilfully" produces an equivalent result or one that is as near as he feels is desirable, and that is the point that I am making.
Because of your ruling, Mr. Deputy Speaker, I shall not refer to the amendment that has not been selected. It sought to ensure that a person would be guilty of an offence only if it was demonstrated that he was wilfully calling himself an insurance broker to secure business for the purpose of making a profit. That would have been clear, but the Minister said that he wants the word "wilfully" in the Bill.
The Minister quoted the example of a passport. I am not concerned about that, but it is an example of the range of documents on which an individual describes his occupation. The Minister says that even if someone wilfully puts his name on a passport application form and gets a passport he is not guilty of an offence, but I think that the Bill says just the opposite. If the amendment is accepted, it will mean that someone who wilfully uses the description "insurance broker" on his passport will be guilty of an offence.
I am surprised that the Minister should say that this is not the case. The wilful use may not involve profit. It may be said that someone has deliberately used that description and therefore should be guilty of an offence, and we come back to whether it is right that that should be an offence. We shall deal later with what should be the penalty if an individual calls himself an insurance broker. If he is conscious of the fact that he is doing so he is doing it wilfully. Whether he does that for profit, and whether he is in business on his own account, seems incidental.

§ Mr. Shersby
The whole point of inserting the word "wilfully" is to deal with a person who does it wilfully. If he does not do it wilfully, there is no question of a prosecution.

§ Mr. Moate
My hon. Friend has put his finger on the point. He accepts that an individual who wilfully calls himself an insurance broker for the purpose of any documentation will be guilty of an offence. He accepts that as a principle.
The Minister was saying something different. He was saying that even if someone wilfully calls himself an insurance broker for the sake of a passport application, a mortgage application, or for any other purpose, he is not guilty of an offence. I think that the Minister's words were contrary to those in the Bill. I think that the Bill is totally unsatisfactory in its present form, and that it will not be assisted by the insertion of the word "wilfully".
As I commented before, I regard this as a matter of fundamental importance. I regard it as nonsensical that large numbers of people who have properly and honourably used the title of insurance broker will be guilty of an offence if they wilfully call themselves insurance brokers once the Bill becomes an Act, and assuming that they have not applied to the Council for registration.
3.30 p.m.
I have quoted before the analogy of the accountant. A man can wilfully call himself an accountant and be guilty of no offence. Though he has no qualifications, he can set up in business. An employee of a firm of accountants can do the same. But once the Bill is given the Royal Assent, insurance brokers who have used that term honourably for centuries will be deprived of the title.

§ Mr. John Page
For centuries?

§ Mr. Moate
My hon. Friend reacts, but that is the truth. It is not the oldest profession, but it is an old one.
I cannot understand why the sponsors of the Bill have been so adamant about imposing this restraint. I can understand the argument for stimulating standards, for having chartered institutes to lay down examination standards and present the best possible face to the public. That is a course that I would have recommended to the insurance broking profession but 646 they have decided on the much more Draconian approach of depriving anyone who does not meet the criteria of the title "insurance broker". That is why this is an unsatisfactory amendment, which does not meet the case.
I was encouraged when the Minister implied agreement with what I said in Committee, that there was no wish to penalise a man who carried on calling himself an insurance broker, but the amendment does not carry out his good intentions. If he said that he would look again at the matter, I would gladly leave it for a later stage.
We need better words than "wilfully". Someone should be guilty of an offence only if he is trying to mislead the public to his financial advantage and perhaps to their financial disadvantage. If a man sets up as an insurance broker to gain business when the law says that he shall not, I can understand the case, but that is not what we are talking about. The argument is that no one shall be a broker unless he is registered. I say that there are thousands of insurance brokers who do not need to register to establish that that is what they are.
I am surprised that hon. Members have found it so difficult to understand this simple point. The analogy with accountants is absolute: the prohibition is only of calling oneself a "chartered" accountant without being registered.
The Bill has been presented as a measure to protect the consumer and raise standards. It is a mystery how it can be argued that this legal sanction against using the title "insurance broker" will help the public. The word "wilfully" will not meet the point that I made in Committee. I would rather that the Minister accepted the word "registered", but we are not debating that. The inclusion of the words "for the purposes of profit" would make sense.
I accept that a corporate body that wilfully calls itself an insurance broker when it is not has no case. A corporate body must accept the law and cannot publicise itself as an insurance broker when it is not. But for the individual there is a different argument. The individual who today calls himself an insurance broker should continue to be allowed to do so. The law should be much clearer on this question. This very lack of clarity 647 emerged from the Minister's speech in support of the amendment.
The Minister said that on the one hand, if a man wilfully states in a passport application that he is an insurance broker he is not guilty of an offence. My hon. Friend the Member for Uxbridge (Mr. Shersby) was much more precise. He said that if a person wilfully used the title of insurance broker he would be guilty of an offence. The legal position should be much clearer. At the moment the Bill is unsatisfactory.
In Committee it was said that my proposition to change the emphasis was a death blow to the Bill. In fact, I thought that I was giving it the chance of life. Had the sponsors been prepared to take a much more generous attitude to people who wanted to call themselves insurance brokers, as long as they were not trying to mislead the public, that would have been very helpful. I am sorry that we have not made great progress. The Minister would help the House if he could give a helpful response to the case that I have made.

§ Mr. Clinton Davis
The hon. Member for Faversham (Mr. Moate) seems to know no distinction between life and death if he is now purporting to breathe life into the Bill. He is doing it in a most extraordinary way, because what he is doing is designed to kill the Bill. The hon. Gentleman has been repeating his arguments all afternoon but they do not improve the point that he is making.
I have given a perfectly cogent explanation of the law and it is the hon. Member for Faversham who is doing an extraordinary disservice to the public and to people involved in the insurance business by promoting alarm that is absolutely baseless. It reflects no credit upon him and does great disservice to the case that he is purporting to present to the House.
I do not believe it right that people in the body politic as a whole should be under any misunderstanding about the people to whom they go to for advice. That is what the Bill is about. I do not propose to argue matters that were raised on Second Reading, and if I attempted to do so I would be ruled out of order.
648 The hon. Member for Faversham has his own purpose which, with respect, is somewhat malicious to the Bill.

§ Mr. Deputy Speaker
We come to Amendment No. 67.

§ Mr. Moate
On a point of order, Mr. Godman Irvine. What happens to Amendment No. 63?

§ Mr. Clinton Davis
Further to that point of order, Mr. Godman Irvine. I am not moving Amendments Nos. 63 and 69.

§ Mr. Deputy Speaker
I thought that that would appear to be clear if we went to Amendment No. 67.

§ Mr. Clinton Davis
I beg to move Amendment No. 67, in page 17, line 9, leave out from "list" to end of line 10.
The words that we are proposing to delete are redundant, because the term used has already been defined in Clause 1.