§ Amendments reported (according to order).
LORD PENTLAND moved an Amendment in Clause 1 (Landing and selling of fish illegally caught prohibited) striking out the proviso at the end of the clause. The words of the proviso were—
Provided that nothing in this Act shall operate to impose liability to any other penalties under the Customs Consolidation Act, 1876, in respect of the importation of prohibited goods.
He explained that the effect of the proviso, which was inserted against the Government in Standing Committee, was to relieve notified vessels from their liability to any penalty under the Customs Consolidation Act, except, it would appear, forfeiture of the prohibited fish. Even this was not made clear in the proviso, for by the use of the words "any other penalties" an element of uncertainty was introduced. No penalties had been referred to in the previous part of the clause, and it could not, therefore, be said with any degree of certainty what the precise effect of the proviso might be. The ground on which the Government had consistently resisted the insertion of any such provision was that the result would be to place prohibited fish in a different category from any other prohibited goods referred to in the Customs Consolidation Act and in subsequent statutes which had extended its scope. Where a large staff was concerned it was always undesirable to multiply separate provisions in regard to different articles; but the main reason for retaining powers which doubtless it would not be necessary to exercise was that it was the existence of those powers in the background which
enforced compliance with the orders of the Customs Department in regard to forfeiture of prohibited articles. What were the provisions which it was suggested should be excluded? Section 172 provided for the forfeiture of vessels or boats used in the importation, landing, removal, carriage, or conveyance of any uncustomed or prohibited goods. Section 186 provided for heavy penalties upon persons importing or assisting in importing prohibited goods, or delivering, removing, or withdrawing such goods from any ship, wharf, etc., or otherwise assisting in the evasion of the laws prohibiting the importation of such goods. Section 202 gave further power of seizure and detention of boats and persons, and Section 203 made persons refusing to stop or allow examinations when required by Customs officers liable in heavy fines. The Customs Department, however, had full power, under Sections 208 and 209, to exercise a full discretion in regard to all these proceedings, and it was understood that vessels had never been forfeited except in the case of dutiable goods, which prohibited fish were not. In practice the powers complained of would not be exercised, but their exclusion would weaken the executive powers of the Customs officers when desiring to board and detain vessels carrying illegal catches. For that reason the Government objected to their exclusion.
In page 1, lines 15 to 18, to leave out the words 'Provided that nothing in this Act shall operate to impose liability to any other penalties under the Customs Consolidation Act, 1876, in respect of the importation of prohibited goods.' "(Lord Pentland.)
THE EARL OF CAMPERDOWN said the proviso was inserted in Standing Committee on the motion of the Duke of Northumberland, who was not able to be present that day and had asked him to state the case for the proviso. In moving to strike out the proviso Lord Pentland had described the use of the words "any
other penalties" as introducing an element of uncertainty; but the words which almost immediately preceded the proviso were—
fish so caught within such areas shall be added to the table of prohibitions and restrictions contained in section forty-two of the Customs Consolidation Act, 1876.
§ Section 42 was quite clear, and provided that if the goods described in the table of prohibitions and restrictions were imported they should be forfeited. Therefore under this section these fish were liable to be forfeited. Then there were certain other penalties which might be imposed under three other sections which Lord Pentland had mentioned. Those penalties were very severe. Under Section 172 the vessel itself might be forfeited; under Section 186 the captain was liable to a fine of £100, and under Section 202 there was another penalty. Their Lordships would, therefore, see that there were certain other additional and heavy penalties which could be enforced under the Customs Consolidation Act, 1876. He submitted that if it was not intended that these penalties should be enforced in cases arising under the Bill, that ought to be made clear, so that any person affected by the Bill should know what his liabilities were. If it was a fact that the only penalty to which the trawler in these circumstances was to be liable was the forfeiture of the fish, what objection could there be to saying so? He was certainly not on the side of these trawlers himself, but it seemed to him that the persons affected by the Bill ought to be informed what they were really liable to. That was the sole meaning of the proviso, and he hoped their Lordships would retain it.
§ LORD BALFOUR of BURLEIGH was of opinion that if there was no other sanction behind the authority of the Customs but the confiscation of the fish the commander of a trawler might give a great deal of trouble. If he did give trouble and refused to obey the legitimate orders of the Customs authorities, then he ought to be punished; but he would be punished not for attempting to import prohibited fish, but for disobedience of the lawful orders of the Customs. The retention of the proviso would, he thought, weaken the Bill.
§ THE EARL OF CAMPERDOWN said there was not one word in Section 172 of the Act of 1876 about disobeying the orders 840 of the officers of the Customs. It might be declared that it was not the intention to enforce the powers under Section 172. But how were they to know it?
§ THE EARL OF CREWE
I cannot help thinking that somewhat too much has been made of these terrible penalties by the noble Earl and by the noble Duke on whose motion the proviso was introduced. As has been pointed out, they apply uniformly to all prohibited goods and not merely to dutiable goods. If one prison-made brush was brought into the country these penalties would apply. I presume that in such a case they would not be exacted. But, as the noble Lord pointed out, it is necessary for the Customs to have behind them these very formidable, though rarely exercised, powers. The noble Earl said just now, quoting from a clause of the Act, that it contained nothing which compelled the officers of the ship to be obedient to the orders of the Customs. No; but it is conceivable that the knowledge that the Customs have these powers would make them infinitely more disposed to be careful to obey the orders of the Customs, whereas if there was no such penalty in the background they might safely defy them. If the argument of the noble Earl is a good one, what he ought to do is not to insert this proviso, but amend the Customs Consolidation Act. Those Acts are full of anomalies of all kinds. I remember that in a debate on the fiscal question, during the term of office of noble Lords opposite, I pointed out that there were provisions in one of the Customs Consolidation Acts which directly sanctioned the imposition of retaliatory duties. These are not, as a rule, applied; indeed, I think they never have been applied. Therefore it seems to me not a very desirable thing to do to break into the symmetry of the Customs Consolidation Act on this point, instead of, if these unused powers are considered to be a grievance, going through the Act as a whole and putting its provisions into a less anomalous form. But I quite agree, on the merits, with Lord Balfour that even in this particular case it is desirable that the Customs should retain these powers, and I therefore hope your Lordships Will consent to my noble friend's Amendment.
§ LORD EVERSLEY moved an Amendment to Clause 3 providing that where it is possible for the Fishery Board to take proceedings under the Herring Fishery (Scotland) Act, for penalties against the master or owner of any British vessel for fishing within the prohibited areas, they shall not notify such vessel to the Commissioners of Customs and Excise, as provided by the clause. He said that in the case of genuine foreign trawlers the closing of British ports to the sale of their fish would not be a very serious matter; they would be able to sell the fish at home. British trawlers, however, would suffer much more severely. They could not take their fish elsewhere, and for two months they would be debarred from bringing fish to a British port. The existing law under which a heavy fine could be inflicted on British trawlers was, however, sufficient to deal with their case, and there did not seem to be any necessity for treating them with this increased severity. Another reason for the Amendment was that under the present law the master of the trawler would be summoned before a Court, where he could state his case; under this clause no opportunity whatever was given to the master to be heard in his defence. That was a very serious increase in the penalty against British trawlers.
In page 2, line 19, after 'Kingdom' to insert the words 'Provided that where it is possible for the Fishery Board to take proceedings under the Herring Fishery (Scotland) Act, for penalties against the master or owner of any British vessel for fishing within the areas aforesaid, they shall not notify such vessel to the Commissioners of Customs and Excise, as provided by this clause.'"—(Lord Eversley.)
§ LORD PENTLAND opposed the Amendment. It would be highly dangerous to adopt differential legislation for British and foreign trawlers. They must have equal treatment under our laws. The noble Lord would notice in Clause 4 a provision against the application of both procedures to an offender under this Bill —that was to say, there would be no danger of an offender under this Bill being proceeded against under the Bill and also under the Herring Fishery (Scotland) Act. He urged that to carry out these 842 provisions there must be a summary procedure. No course other than that suggested in the Bill would be effective in stopping illegal fishing in the Moray Firth. It was impossible to proceed under the Herring Fishery Act because that involved laying information, and by the time that could be done the cargo of fish would have been discharged and probably sold by the offending trawler.
§ On Question, Amendment negatived.
§ Bill to be read 3a on Thursday next, and to be printed as amended. (No. 125.)