§ House in Committee (according to order).
§ Clause I:
LORD ALVERSTONE moved to leave out the words "and without the knowledge of his principal" from Clause 1, which enacted that—
If any agent corruptly and without the knowledge of his principal accepts or obtains, or agrees to accept or attempts to obtain, from any person for himself or for any other person, any gift or consideration as an inducement or reward for doing or forbearing to do any act in relation to his principal's business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal's business," etc.
§ It seemed better to rely on the word "corruptly" without the additional words.
In Clause 1, page 1, lines 5 and 6 to leave out 'and without the knowledge of his principal.' "—(Lord Alverstone
§ LORD ALVERSTONE said the next Amendment standing in his name was designed to meet the case mentioned by him on the Second Reading of bribes which were given after the act had been performed.1369
In page 1, line 9, after 'do' to insert 'or for having done or forborne to do.'"—(Lord Alverstone.)
§ THE LORD CHANCELLOR said he had received a long and earnest remonstrance from persons not otherwise averse to the Bill on the ground that the effect of the Amendment would be to reopen old transactions, the evidence applicable to which had long since perished.
§ LORD ALVERSTONE pointed out that the Bill would have no retrospective action. The Amendment had reference to future transactions where the bribes were not paid at the time.
§ LORD DAVEY said he understood the Amendment to mean that any payment of this kind would be a corrupt payment if it were made after the event as recompense or reward.
§ LORD JAMES OF HEREFORD moved an Amendment to cover the case of any person whose duty it is to order or receive goods on behalf of his principal who should in consequence of so doing receive any recompense or gift from the person supplying such goods without the knowledge of the principal. He felt that it was quite unnecessary to comment upon the evils arising from the practice of servants taking gifts from tradesmen in this way The principal either paid higher prices, received inferior goods, or was deceived by false quantities; and he had drawn the Clause explicitly in order to bring this offence within the Act. He had omitted the word "corruptly," because he wished to make the mere act of an agent or servant receiving such gifts an offence in itself. The noble and learned Lord might contend that this case was met in the second sub-section, but there it must be proved that the gift was given a; an inducement or reward for doing or forbearing to do any act in relation to the principal's business. It would be difficult to prove that anything whatever was said, when the gift was made, as to furthering 1370 the interests of the tradesman. He hoped the noble and learned Lord would accept the Amendment. He proposed, on the Report stage, to move an Amendment making the giving of a bribe on the part of a tradesman also an offence. The punishment mentioned was the maximum punishment, and if the offence was not shown to be of a grave character, the punishment would probably only be a fine; but such a provision would go a long way in the direction of putting an end to this objectionable practice.
In Clause 1, line 12, after 'or' to insert 'if any person whose duty it is to order or receive goods on behalf of his principal, shall, in consequence of HO doing, receive any recompense or gift from the person supplying such goods without the knowledge of the principal or'")—(Lord James of Hereford.)
§ LORD BURGHCLERE hoped the noble and learned Lord would accept the Amendment. He had the honour of serving on the Committee, of which the late Lord Chief Justice was chairman, and ho believed he was right in saying that the opinion of the Committee was that these payments should be rendered illegal when the agent or servant obtained them without the knowledge of the principal. He submitted that the word "corruptly" practically knocked the bottom out of the Bill; but, as there was no chance of eliminating that word, he supported very warmly the Amendment moved by the noble and learned Lord opposite.
§ *EARL SPENCER said he hardly liked to intervene in a matter so technical, but he would like to quote a case that had come to his knowledge, which he did not think either the Bill or the Amendment touched. It was the case of an insurance company which had been in the habit of paying to the account of the agent of a person whose estate had been insured a sun annually in respect of the business introduced many years ago. He understood that that was not only a common practice in the case of clerks or agents of landed pro prietors, but that it obtained among solicitors as well. He maintained that the principle was absolutely wrong and said that, directly the person to whom he referred learned that his agent 1371 was receiving this payment, he took the matter up, and on stating that the premiums. Surely that was a payment which ought to be covered by the Bill practice was at once to cease, was able to get from the insurance office a reduction of something like 25 per cent. in his premiums. Surely that was a payment which ought to the covered by the bill.
§ THE LORD CHANCELLOR said he was somewhat amused, if he might say so, at what the noble Earl had just stated, because he had that day received a very long remonstrance from a person who declared that the practice to which the noble Earl had referred was perfectly honest, and that the Bill would prevent it. He thought his noble friend Lord Burghclere could not have read the Amendment which he (the Lord Chancellor) had placed on the Paper, chiefly in view of what the noble Lord himself said on the Second Reading, and which he would move later. lie would have thought that that Amendment, while retaining the proposition that in order to make the giving of a gratuity an offence it must be given corruptly, introduced words which amply supplied the deficiencies of which the noble Lord complained, for it provided that where it was shown that any gift or consideration had been taken, given, or offered without the assent of the principal, the burden of proving that such gift or consideration was not taken, given, or offered corruptly should lie on the accused. If the Amendment moved by Lord James was accepted, they would be endeavouring to specify what it was quite unnecessary to specify. It had to be proved, in order to get rid of the imputation of corruption, that the principal assented to the gift, and if the principal assented there was no corruption at all. But if it was given without the assent of the principal, the operation of the section was to make it corrupt within the meaning of the Act. Why was it that the butcher gave a Christmas-box to the cook? His impression was that he did it for good consideration, and therefore the section, as he proposed to amend it, would undoubtedly hit that case. He could not accept Lord James's Amendment.1372
§ LORD JAMES OF HEREFORD submitted that if the word "corruptly" remained the whole Bill would be rendered nugatory, and the system they were seeking to touch would go punished. It was clear that prosecutor would be told that it was no good his proving that his cook or his gamekeeper had received gifts, but that he must prove that they were given corruptly. How was he to prove corruption? The mere act of an agent or servant receiving these gifts should constitute an offence.
§ LORD ALVERSTONE thought the point would be fully covered by the Amendment standing in the name of the Lord Chancellor.
§ THE LORD CHANCELLOR said he could not conceive of any doubt existing as to what would happen in the case suggested by the noble and learned Lord. If the gift was made without the assent of the principal, if no legitimate or honourable reason could be shown by the accused why the money was given, if the giving of it could not be justified, then it would, in pursuance of the Amendment he proposed to move later, be corruptly given within the meaning of the statute. If they made the Act too severe they would raise up opposition to it, and its passage might be endangered. He could not, therefore, accept the noble and learned Lord's Amendment.
§ LORD DAVEY agreed with the Lord Chancellor that the giving of these commissions ought not to be made a criminal offence, unless it was corrupt. As to the point raised by Lord James, he did not apprehend any difficulty. If a servant or agent received a bribe contrary to the known wishes and orders of his master, no one would say that that was not corrupt.
§ VISCOUNT GOSCHEN said the point that struck him as a layman was: Was 1373 there any substantial difference between the Amendment of the Lord Chancellor and that moved by Lord James? Would the Lord Chancellor tell the House whether the system would be condemned as decidedly and definitely by the acceptance of his (the Lord Chancellor's) Amendment, as it would be by the acceptance of Lord James's Amendment?
§ THE LORD CHANCELLOR
I think even more so. May I read my Amendment? It provides that—For the purposes of this Act, where it is shown that any such gift or consideration as in this section mentioned has been taken, given, or offered without the assent of the principal, the burden of proving that such gift or consideration was not taken, given, or offered corruptly shall lie on the accused.
§ LORD JAMES OF HEREFORD asked the noble and learned Lord to take the case, for instance, of a cartridge seller who gave a gamekeeper £10. The evidence stopped there. Where would his noble and learned friend's Amendment be of the slightest use in such a case? The Amendment would throw on the gamekeeper the burden of proving that it was not corruptly given. If the gamekeeper said "I swear upon my oath that nothing whatever was said," and the cartridge seller confirmed him, where was the corruption? Unless his (Lord James's) Amendment were accepted they would be doing nothing whatever to stop this system.
§ THE LORD CHANCELLOR said a good many corrupt bargains were made without any words being exchanged at all. In the case referred to, the tribunal would ask itself: "Why was this £10 given?" and if the gamekeeper could not give a satisfactory reason it would not be a very unfair inference to draw that it was given for the purpose condemned by the Bill. If the Amendment of his noble and learned friend were adopted it would imperil the passing of the measure.
§ On Question, Amendment negatived.
§ Consequential Amendment agreed to.
§ LORD ALVERSTONE said the object of the Amendments standing in his name was to make the punishments the same 1374 as in the Bill known as Lord Randolph Churchill's Act of 1889. It was agreed that the punishments ought not to be less in this case than in the Act which had been on the Statute-book for thirteen years.
In line 27, to leave out 'one year,' and insert 'two years'; in line 28, after 'pounds,' to insert 'or to both such imprisonment and such fine'; and in line 30, after 'pounds,' to insert' or to both such imprisonment and such fine'" —(Lord Alverstone.)
§ THE LORD CHANCELLOR moved an Amendment providing that a person serving under the Crown is an agent within the meaning of the Act. His own impression was that the words were unnecessary, but as some doubt had been expressed as to whether persons serving under the Crown came within the Act, he moved the Amendments to make the point clear.
In Clause 1, page 2, after line 4, to insert (3) A person serving under the Crown is an agent within the meaning of this Act.'"—(The Lord Chancellor.)
§ THE LORD CHANCELLOR said the object of the fourth sub-section which he now moved was to put an end to the idea hat where the practice of giving these gifts were customary in any trade it was therefore admissible.
To insert '(4) In any prosecution under this Act evidence shall not be admissible to show that any such gift or consideration as is mentioned in this section is customary in any trade or calling.'"—(The Lord Chancellor.)
§ *LORD DAVEY agreed that it ought not to be a defence as between a tradesman and a servant to say that the gift was customary. But what would his noble and learned friend say of a parting guest who had been staying at a friend's house giving a tip to the footman who had attended him? It was not usual to consult the host as to what tip one would give a servant. Would not custom in that case be an answer' to a charge of corruption?1375
§ THE LORD CHANCELLOR said that such a case as that would not come within the Act at all. Every host knew perfectly well that tips were given.
§ THE LORD CHANCELLOR said the fifth sub-section which he proposed to add to Clause I had already been read to the House, and he hoped there would be no opposition offered to it.
To insert (5) for the purposes of this Act, where it is shown that any such gift or consideration as in this section mentioned has been taken, given, or offered without the assent of the principal, the burden of proving that such gift or consideration was not taken, given, or offered corruptly shall lie on the accused."—(The Lord Chancellor.)
§ LORD JAMES OF HEREFORD said he recognised his hon. and learned friend's effort to meet the difficulty with regard to the word "corruptly," and he regarded the Amendment as a great improvement. But he wished to ask the hon. and learned Lord one question. Supposing an agent or servant admitted that a tradesman sent him £5 and he kept it, but stated most emphatically that not one word passed between him and the tradesman, would that be a corrupt act or not?
§ THE LORD CHANCELLOR
I should say most unquestionably it would, unless some good reason was proved by the servant why he received the £5.
§ Clause 1, as amended, agreed to.
§ Remaining clauses agreed to.
§ Bill recommitted to the Standing Committee; and to be printed as amended.