§ 5.5 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(The Earl of Listowel.)
§ On Question, Motion agreed to.
§ House in Committee accordingly:
§ [LORD HOLDEN In the Chair]
§ Clauses 1 to 4 agreed to.
§ Clause 5 [Power to make regulations about handling, etc., of white fish, and for other purposes]:
§ On Question, Whether Clause 5 shall stand part of the Bill?
§ THE EARL OF LISTOWEL
With your Lordships' permission, I should like to make a short statement on Clause 5. I believe that some of your Lordships have been anxious to prevent any overlap between the work of the White Fish Authority and that of local authorities over the former Authority's responsibility in relation to quality at the retail stage. So far as can be reasonably foreseen, the White Fish Authority's main activities will be concerned with the earlier stages of distribution, and will involve no interference with the functions of local authorities. The powers conferred under the Food and Drugs Act are sufficient to deal adequately with cleanliness and 560 hygiene at the retail stage, and my right honourable friend the Minister of Food has under consideration the making of regulations for the fish trade, on which matter he will shortly consult interested organisations, including the local authority associations.
§ On Question, Clause 5 agreed to.
§ Clauses 6 to 17 agreed to.
§ Clause 18 [General provisions about offences]:
VISCOUNT SIMON had given notice of an Amendment to leave out subsection (6) and to insert instead:
(6) Where an offence under the last foregoing section or any regulation made under this Act which has been committed by a body corporate is proved to have been committed with the consent or connivance of or to be attributable to any negligence on the part of any director, manager or secretary or other officer of the body corporate he as well as the body corporate shall be liable to be proceeded against and punished accordingly.
The noble Viscount said: My Lords, I wish to move an Amendment to Clause 18, and with the permission of the Committee I should like to present it in a slightly different form from that which was circulated. The change is very slight, but I am told that this is the proper way in which to express the matter if, indeed, the Committee are disposed to accept the Amendment.
Your Lordships will notice that in the Bill as it stands, at page 18, line 9, there is subsection (6) which provides this:
Where a body corporate is guilty of an offence against this Part of this Act, every person who at the time of the commission of the offence was a director, general manager, secretary or other similar officer of the body corporate, or was purporting to act in any such capacity, shall be deemed to be guilty of that offence unless he proves that the offence was committed without his consent or connivance and that he exercised all such diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions in that capacity and to all the circumstances.
Therefore, that subsection provides, in the case where the offence is committed by a body corporate—for example, by a limited company or an association of fishing people—that if the body corporate commits the offence, there shall also be a liability imposed upon the director, general manager, secretary or similar officers on terms which will make it necessary for the individual accused to prove that he is not guilty. In fact, it is
a case in which, although we are dealing with the criminal law, it is suggested that we ought to reverse the ordinary rule which in general we would certainly wish to preserve—the rule that if you are charging a man with an offence, you have to prove it, and that it is not for him to prove that he is innocent.
§ Having regard to the subject matter of this Bill, important as it is, I suggest that this is not a case in which we should agree to accept that exceptional and, I think, in principle objectionable, reversal of our British rule. There are some countries whose system of jurisprudence is such that a man accused of a crime is expected to prove his innocence; and if he fails in doing that, you have proved all you have to prove by having accused him. I do not deny that in our own Statute Law there have been cases where this has been necessary. For instance, under the Official Secrets Act, passed by Parliament in order to protect the safety of this country, it is the fact that Parliament has thought it well to say that in certain cases if a person is suspected he must clear himself; it is not for the prosecution to prove him guilty. I am not disputing that that is right. There may be a case in which failure to observe what is laid down may involve this country in some diplomatic complication. In a case such as that it may be right—and indeed I believe it is so laid down—having regard to the seriousness of the matter, to reverse the usual rule. In such an instance we must make it the business of the person accused to prove his innocence. What I submit, however, is that this is not a case in which we ought to go so far.
There has been more than one instance in which this method has been adopted —I take as an example the setting up of a register: it may be necessary to cause people to be entered on a register. It is the law of the land in connection with, let us say, the registration of dentists, where the business of dentistry is being carried on by a limited company and we have to find out the identity of the individual behind the company who is taking the liberty of pulling out people's teeth. My submission is—and I address myself particularly to the noble and learned Viscount the Lord Chancellor, who is as much concerned about the principles of our law as anybody—that the sea fishing
industry should not be the subject matter of such a departure from the general rule. Therefore, I have put down as an alter-native what really amounts to a reversal of subsection (6)—though, of course, it is necessary to have some such subsection. The Amendment which I am now moving seeks to insert as a new subsection (6):
Where an offence against this Part of this Act which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, he as well as the body corporate shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
The Committee will see that this maintains the view that it is for the prosecution to prove the case: that if it is a fact that a body corporate is proved to have committed an offence, then the director or similar officer who is proved by the prosecution to have consented to, or connived at, the offence shall be deemed to be guilty. I am seeking, quite frankly, to reverse the onus laid down in the Bill as it stands. I am hoping that your Lord-ships will be at one in feeling that, unless there is a strong reason for reversing the usual rule, it would be regrettable if we were to depart from our British system and to move rather towards the Continental system. That system amounts to saying: "I have brought you before this court and charge you with this offence; now you must prove that you did not commit it." I am hoping that, with this explanation, the noble and learned Viscount will advise the House that it would be right to make this change in the Bill.
§ I wish to make—though I must, of course, do so only in general terms—a reference to what happened recently in another place. A proposal made there, with substantially the same effect, was put forward by Mr. Erroll from the Opposition side, and was supported, I noticed, by several others. It was dealt with by the Solicitor-General for Scotland, I thought, if I may be allowed to say so (I take an interest in the early careers of all Law Officers, past, present and to come), with great discretion. What he said, in effect, was that everything had gone very nicely, that he did not want to start a controversy, but that he could not at the moment say more than that the Government would 563 look at the matter. That is what I am now asking the Government to do. I think your Lordships' House is an appropriate place in which to ask that. While it is not a major point, I attach importance to it for this reason: if we allow the clause in its present form to pass into further legislation, we may well be told more and more later that there are precedents for such a course, and that it is too late to challenge the position. I do not myself want to challenge it in the cases in which it is really necessary; but I do wish to do so on this occasion.
§ A limited company may just as easily commit an offence under the Sea Fish Industry Bill as may an individual, but there is this difference: that, since the penalties provided in this Bill are either a fine or imprisonment, a corporation (which, as someone once said, has "neither a body to be kicked nor a soul to be saved") can only be fined: there are no known means by which a corporation can be put in prison. I do not, however, regard that as a sufficient justification for departing from the normal rule. I invite the Lord Chancellor to consider whether he will not allow this Amendment to go into the Bill. I feel that we should be doing some-thing useful and appropriate if we were to make this change. I beg to move.
Page 18, line 9, leave out subsection (6) and insert (" (6) where an offence against this Part of this Act which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary, or other similar officer of the body corporate, he as well as the body corporate shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly ").—(Viscount Simon.)
§ 5.19 p.m.
§ THE LORD CHANCELLOR (VIS-COUNT Jowitt)
I do not feel at all keenly one way or the other about this Amendment. I think the noble and learned Viscount has correctly enunciated the law as I understand it. Of course, our principle has always been that when a person is accused of a crime it is for the prosecution to prove that he is guilty, and not for him to prove that he is innocent. That is the perfectly sound principle which distinguishes our law sharply from some systems of Continental law, and as a general principle we 564 should all like to adhere to it. The difficulty arises from the conception of a company, which is a legal fiction. The noble Viscount's quotation was not quite correct, if he will allow me to say so. It should have been that a company has "neither a body to be kicked nor a soul to be damned." The principle, of course, is the same. If a company commits an offence and you prove the complicity of an individual it is an offence under ordinary criminal law. The difficulty is not so much with regard to acts of commission as to acts of omission. Where a company which is called upon to do a certain act—for instance, to register or something of that sort—fails to do it, it is difficult for an outsider to prove which particular director on the board, or which particular manager amongst the managers, is in fact to blame. In consequence, there are a large number of Acts, a formidable list of them—I shall mention only those passed before the war— in which this clause has been inserted. The Committee must observe, of course, that before this clause operates at all, it is first necessary for the prosecution to prove that the company has been guilty of an offence; and, if the company is proved to have been guilty of an offence, then and then only, under this clause, does the onus fall upon the director concerned to show that he was not a party to it.
As the noble and learned Viscount has said, there are many cases in which I should certainly desire to adhere to the principle which is followed in the Bill. There is the extreme and obvious case where the doing of something, or the failure to do something, may involve serious injury or even death—for instance, in the mines. We have had it in the Coal Mines Acts for a very long time, and it is absolutely right that it should be there. People who are concerned in the management of a mine, even though the actual form of the owner is a company, should realise that they are undertaking a very serious obligation. We have had it for years in our Factory Acts, where failure to carry out the provisions of the Factory Acts may lead to serious injury. There again (I know the noble and learned Viscount agrees with me), it is right that it should be there. Then we have had it also, if I may give your Lordships another illustration, in the Official Secrets Act. I think it is plainly 565 right that it should be there. We have had it also in the Act to do with Washing-ton—
§ THE LORD CHANCELLOR
The Treaty of Washington Act of 1922. That was an Act which prevented the building of ships of war and so on without due notification. That, I think, is right. We have had it in the Dangerous Drugs Act, which is a plain illustration. We all agree that it should be there. I agree with the noble and learned Viscount fully to this extent: I do not want it to become a matter of rule of thumb that, wherever we have an Act of Parliament passed dealing with a company, we automatically insert this clause. Quite frankly—I do not think there will be any controversy in the Committee on this—I think that it is a question for consideration whether or not the particular Act is one of such a nature and such scope that it is appropriate to find this directors clause in it. I concede further at once that I think this is a borderline case. That is why I can-not be at all heated about it. It is just a question of which side of the line this case falls.
The Solicitor-General for Scotland, to whom reference has been made by the noble and learned Viscount opposite, put the case very powerfully, I thought, in an attractive way; and I really could not attempt to improve on the language which he used. I think the case, if there is a case at all, for this subsection, is on this ground. There have been a number of Acts in which the clause appears where what we have been trying to do is to set up a complete register of some trade or profession. If a company fails to register itself, the working of the scheme may be interfered with. I will give your Lordships as an illustration the Theatrical Employers' Registration Act. We can all imagine what the object of that Act was—to ensure that people dealing with this sort of thing should be reputable and should be kept under some kind of control. It is obvious that if a company—and there are many such companies now—has failed to register, it might lead to serious abuse. That, too, is a borderline case, and in that case the clause was put in—I am inclined to think, rightly. The noble and learned Viscount himself referred to dentists. There again 566 it was plainly desirable to have a register, because the interest of the public is concerned. So you find the clause there. Then we find the same thing in the Mid-wives and Maternity Homes Act. It is plainly desirable that we should know where those homes are and what sort of places they are, and should be able to keep check and control on them. Then again one finds it in the old Companies Act of 1908.
I accept the principle, as we all do, that sometimes there is a case for this clause. But it should not be put in as a rule of thumb and sometimes there is not a case for it. The problem we have to consider is: On which side of the line does this particular case fall? I will go so far as to say that I concede quite frankly that, wherever it falls, it falls very near the line, and so it is a matter about which I do not desire to generate the slightest heat. What I am prepared to do is this. I want a little further time in which to look at the matter, to see if I can get further guidance from the other cases as to which side of the line this case falls. Your Lordships will appreciate that we are in this Bill trying to set up a register. For instance, if you look at Clause 8, Licensing of fishing vessels—and there are several such clauses—it is provided that there must be a licence, and no fishing vessel registered shall be used unless there is a licence. That is rather, though not completely, analogous to the case of the dentists or the theatrical employers.
So, if your Lordships will allow me, I want further time in which to consider the matter. I will accept the Amendment now in the form in which the noble and learned Viscount has moved it, so long as your Lordships will give me leave to come back to it on Report stage if, on looking into the matter, I come to the conclusion that the other subsection ought to be there. Since there is nothing in the least of Party controversy about this matter, it may be that some of your Lordships will look at it too and will come to the conclusion that it ought to fall on the side of the line on which it now is. If that is a fair proposition to your Lordships, at being understood that I am in no way committed, we shall have the advantage of examining the words and deciding whether or not we should accept this form of Amendment. For myself, frankly, I have not been able to make up my 567 mind on which side of the line this case falls. It is very near the centre, and, that being so, I am prepared for the time being to accept the Amendment so long as it is understood that I am not prejudicing myself in coming back to it, if I desire to do so, to look at the matter again.
§ LORD SILKIN
May I perhaps assist the noble and learned Viscount the Lord Chancellor in making up his mind? Since this is such a borderline case, and as he himself is unable to decide here and now, is there not another principle involved? Ought not the bias to be on the side of accepting the Amendment of the noble and learned Viscount? I think all of us would accept the general principle that a person is innocent until he has been found guilty. A case where that principle is reversed ought to be clear and strong. If it is such a borderline case that one can look at it either way, I should have thought that the bias ought to be definitely in favour of accepting the Amendment. I hope that that may be of some assistance to the noble and learned Viscount in making up his mind.
§ THE LORD CHANCELLOR
I con-fess that that was one of the considerations which led me to take the line I have taken, and to say that I would accept the Amendment at this stage with-out prejudice, rather than ask the noble Viscount not to move his Amendment at this stage but to deal with it on Report stage.
§ VISCOUNT SIMON
I am grateful to the Lord Chancellor, and I think I may claim to be a sufficiently experienced Parliamentary hand to know that when, for the moment at any rate, I have got what I want, it is unwise to make a second speech to explain how right it is. Let us leave it at that; then I shall not do any harm. I fully understand that, while the 568 Lord Chancellor is accepting this Amendment now—and I am glad that the noble Lord, Lord Silkin, added what he did, because it is a consideration—at the same time both sides are free to examine this matter at a later stage. It may be that I shall suddenly have a bright light thrown upon me in my journey and come to the conclusion that my previous opinion was all wrong. If so, I shall be glad to con-tribute to my greater understanding. But we are all free to reconsider the matter and, in the meantime, we shall see my Amendment printed in the Bill as it will appear before us on the Report stage.
§ On Question, Amendment agreed to.
§ Clause 18, as amended, agreed to.
§ Remaining clauses and Schedules agreed to.
§ House resumed.
§ House adjourned during pleasure.
§ House resumed.