§ 4.6 p.m.
§ Read 3a (according to Order).
§ Clause 1:
§ Illegal commissions and advertisements
§ 1.—(1) Subject to the provisions of this section, any person who, during the continuance in force of this Act,—
- (c) issues any advertisement, list or other document describing any house as being to let without the authority of the owner of the house or his agent,
§ EARL JOWITT moved, in subsection (1) (c), after "issues" to insert "without reasonable excuse." The noble and learned Earl said: My Lords, I do not in the least want to prevent this Bill from having a happy passage to the Statute Book. I hope that the Bill will do good work: I hope that it will check fraud. We have heard from the noble and learned Viscount who is in charge of the Bill that there has been certain fraud of a particularly mean type. When there is a great shortage of houses, as there is at the present time, it is both mean and despicable for anyone to say, for instance, that he must charge a fee to insert people's names on a list, when he has very slight prospect of getting them a house. I think that mean and contemptible, and I should desire to put down such a practice.1055
§ But having said that, I want to submit this. I think it a very dangerous thing that in these days, if we have a spare afternoon, we should cast about to see whether we cannot invent some new criminal offence. We should be most careful to see that any criminal offence which we propound should be so narrowly and concisely defined as not to bring within its mischief an honest man who has made an honest and genuine mistake. I believe that that is something about which we shall all agree. Of course, it is an answer, in one sense, to say that if a man has made a perfectly genuine mistake no one would be so foolish as to prosecute and, if they did, no judge would think anything larger than the smallest coin of the Realm was an appropriate measure to mark the offence. But I do not regard that as a complete answer. I do not think that we should propound criminal offences, even if that is so—as I am glad to think it is.
I ask your Lordships to consider with me some aspects of this Bill. It is not a highly technical and legal Bill, and what I have to say is really a matter of reading English. I am not moving anything with regard to paragraphs (a) and (b) of Clause 1, which begins in this way:
Subject to the provisions of this section, any person who, during the continuance in force of this Act"—
and now I go to paragraph (c)—
issues any advertisement, list or other document describing any house as being to let without the authority of the owner of the house or his agent,
shall be guilty of an offence."
For that offence he can be dealt with, in a proper case, by being fined £100, or by being sentenced to three months' imprisonment, or, I think, by being both fined and imprisoned. A list of houses, I should have thought is, in the nature of things, somewhat fluid. If I had a house to sell, I should, I hope, instruct a highly reputable firm of land agents to sell it for me. But I might, in process of time, decide to withdraw the house from their hands. Or I might succeed in selling it privately. In either of those cases, I should instruct that firm of land agents to take my house off their list. If everything went correctly, they would immediately communicate with all their branches and say, "This house is no longer on the list." But if by error, or
for some other reason, a house which was once properly on the agent's list is not taken off when it should be, is that really a case in which it should be held that a criminal offence has been committed?
§ Take this case—the noble and learned Lord who sits on the Woolsack, or the noble and learned Viscount, Lord Simon, will tell me if I am right or wrong: there is no Party issue in this. Suppose that I decide to change my home, and put my house on the books of Messrs. Knight, Frank and Rutley. Then I write asking them to take my house off their list, as I have sold it privately. Suppose, that being so, that on the following day they send out a list which still contains my house upon it, I conceive that they would have committed a criminal offence. I think that is undesirable. We should try so to define and limit our criminal offences as not to catch that sort of case within the language used. If I am right (and the noble Viscount, Lord Simon, will say presently whether I am), we have used phraseology in this Bill which is so wide that it would include a case of that sort, whereas what we all want to do is to catch the rascal who is making a good thing out of the present situation. We do not want to bring within the ambit of the criminal law anybody who has made, carelessly if you will, a perfectly genuine and honest mistake. As the Bill is drafted at present, anybody who sent out a list after instructions had been withdrawn would commit a criminal offence and could get three months' imprisonment. He might suffer the indignity of standing in a dock, although obviously the magistrate would say that it was purely a technical matter.
§ Your Lordships will remember that we cannot discuss matters on Third Reading unless there is an Amendment tabled, and I have put down this Amendment because I heard last night that this Bill was coming on to-day. I am not proud of this Amendment, and I realise that it may not be a satisfactory piece of machinery. I make it plain that I am not going to press the Amendment. I have raised this matter because I think there is to-day a tendency, which we should watch, for private Members to introduce Bills providing for new criminal offences which may be committed, and not be careful enough to define those offences in language so narrow as to make it appropriate to a criminal offence but 1057 not appropriate where there is a mere error. This Bill seems to be a glaring instance of that tendency. In another private Member's Bill which we discussed recently, where we dealt with removing earth from a site, your Lordships may remember that introduced an Amendment, which was accepted by the promoters of the Bill, to provide that no prosecution should be brought save by leave of the Attorney-General or the Director of Public Prosecutions. If that is in a Bill, there is some sort of safeguard that unworthy prosecutions will not be brought.
§ I have raised this matter in order that it may be discussed. I know that the noble and learned Viscount, Lord Simon, who is in charge of this Bill, feels as I do about it. He wants to put down what I think he has established to be an abuse, but I am sure he wants to put it down by using language which, while it hits the rogue, does no harm to the honest man who makes a mistake. In this House we must always be careful and, if I may say so, particularly with regard to private Members' Bills, to see that they are drafted in such a way that we do not rope into the ambit of the criminal law all sorts of people who are not near it at all. As I have said, I do not propose to press my Amendment to this Bill; still, it will be a useful reminder in the future to define criminal offences in precise language, so that they hit only at people who should come within the ambit of the criminal law.
Page 1, line 15, after ("issues") insert ("without reasonable excuse").—(Earl Jowittt.)
§ 4.15 p.m.
§ VISCOUNT SIMON
My Lords, with the general proposition of the noble and learned Earl I most warmly agree. I think it is most important in this House that we should narrowly examine any proposed provision which creates a new criminal offence, to see that it is properly limited and is not in such language as to punish people who do not deserve to be punished. On that proposition I am entirely at one with my noble and learned friend. But I suggest to him that the Amendment that he has put down is not one which we ought to adopt. I do so for two reasons.
First of all, the part of the Bill with which we are concerned, as the noble 1058 Earl has pointed out, is a prohibition on issuing a list describing a house as being to let, without the authority of the owner; and the object is to put a stop to what the noble Earl has rightly called a fraudulent and discreditable practice. I not only want to lay down the law, I want to encourage people to be careful to observe it. And if we introduce qualifying words like "without reasonable excuse," I feel that we are offering to people who may be disposed to perpetrate this discreditable trick the opportunity of looking for something or other which they can describe as a "reasonable excuse." Let me put this example. We are agreed that it ought to be a criminal offence to put forth a list of houses to let, without authority. Suppose one of these people does that and includes in the list a house which he knows is to let, though he has no authority to offer it to the public. Might not such a person say that he knew these premises were to let; that he therefore presumed the owner wanted to find a tenant, and that he hoped that was a reasonable explanation for supplying a list which included that house?
The truth is that this phrase "without reasonable excuse" is not a happy phrase, I venture to think—my noble friend will forgive me, because he said as much himself—because no sort of test is set up of what is meant by a "reasonable excuse." The case which my noble friend has in mind is one where authority has been given to an agent to include a house in a list. It is, consequently, included in the list, but that list happens to be issued the day after authority is withdrawn. I agree with the noble Earl that nobody would dream of prosecuting on those facts, because the explanation would be accepted at once.
If the noble Earl had proposed to introduce a provision that the authority of the Attorney-General must be obtained for a prosecution, I think it would not have been unreasonable. I am certain that if the Attorney-General had such facts before him he would not authorise a prosecution when there had been a pure mistake, or because it takes 24 hours to print and circulate a document. But we are not entitled to consider that situation: the only Amendment we can make is the one on the Order Paper. And I submit that the Amendment on the Order Paper is not very happily framed to meet the 1059 difficulty. Since we are engaged in suppressing what is a fraudulent trick, a dishonourable practice, we had better lay down the rule that a man is not to issue a list containing houses which he is not authorised by the landlord to include. The noble and learned Earl, Lord Jowitt, in the course of his illustration, spoke of the Bill requiring, if an agent receives notice, after issuing a list, that the owner had found a tenant, or was withdrawing the house, that he—the agent—should circularise those getting his list to say, "That part of my list is no longer effective." I understood the noble and learned Earl to make that suggestion. There is nothing in the Bill requiring that. The question is, when the agent issues the list, is the house one which is in his list because he has been authorised by the owner to insert it? The fact that the list issued a week ago is to-day not effective as regards this house would not in itself constitute any breach of the clause at all.
§ VISCOUNT SIMON
I thought that my noble and learned friend would agree. Therefore, that is the real limit of the issue. If I may be allowed to say so, I am glad that the noble and learned Earl has taken the opportunity of emphasising that we should not manufacture new crimes lightheartedly, and expose people to prosecutions without thinking carefully whether the case is one which ought to be dealt with, and is dealt with in properly limited language. So far, I go with him all the way, and I feel that his intervention is most useful, and puts a warning on record for all of us, and especially, perhaps, people who have been trained as lawyers, to watch constantly.
My submission is that this Bill, as it stands, aims at suppressing an undoubted evil, and that the rather far-fetched illustration introduced to explain why the Amendment has been put down is really dealt with quite satisfactorily by saying that nobody would prosecute and no judge would convict in such circumstances; and, further, that this phrase, "without reasonable excuse," is capable of furnishing other explanations, quite apart from the explanation that the agent has made a mistake; and it is therefore not to be encouraged. My notion 1060 is that by this Bill we are giving a stern warning to a set of people, who have been doing this at the expense of the public for some time, that these are the rules that are laid down; and that if these rules are not observed they will "catch it." I myself am not disposed to think that we are doing our duty in this respect properly if we introduce qualifying words, which might in some case be justified but which in other cases would not be justified, and would only encourage people to go on with what they are doing, without justification, in the hope that they could produce, when the time came, some excuse which might be classified as reasonable. Therefore, with great respect to the noble and learned Earl, and thanking him for raising the question, I would ask that the House should not make this Amendment.
§ 4.24 p.m.
§ LORD MANCROFT
My Lords, your Lordships will naturally look to the sponsor of the Bill, the noble and learned Viscount, Lord Simon, for ultimate advice upon this particular Amendment; but since I have throughout the course of this Bill voiced the support of Her Majesty's Government, I think it would be right if I were to indicate what are the views of my right honourable friend upon this Amendment. May I begin by identifying myself strongly with the views expressed by the noble and learned Earl, Lord Jowitt, concerning the undesirability of the creation of wide and sometimes wild criminal offences in new legislation, and particularly in private Members' legislation? While he was speaking, I myself had a slight twinge of conscience, because I have in the last year attempted to introduce no fewer than four private Members' Bills into your Lordships' House. But I am happy to think, upon reflection, that the only time when I dealt with an offence—namely, in the Marriage (Enabling) Bill—it was to remove what is at present an offence and make it in future not an offence. So I have a fairly clear conscience. If I may say so with respect to the noble and learned Earl, Lord Jowitt, while we all appreciate what he is trying to do, I do not think that in his present wording he has quite achieved his object. I feel that the argument put forward by the noble and learned Viscount, Lord Simon, that this offence is one which a judge would of necessity deal with in the way he suggested, is 1061 advice which should prevail in your Lordships' House. With great respect to the noble and learned Earl, Lord Jowitt, I would advise the House to follow the guidance of the noble and learned Viscount, Lord Simon.
§ 4.27 p.m.
§ EARL JOWITT
My Lords, I was going to rise to withdraw the Amendment, in any event, as I indicated I would. However, I do not like the argument which the noble Lord advanced last. I do not believe it is an adequate answer to this point to say: "The offence would be such a small one that the judge would say, 'I will treat you as a first offender, and let you go.' "I believe that is a dangerous principle. We must try in the future so to define new offences which we are creating in legislation as not to bring within their ambit at all the man who makes a perfectly genuine and honest mistake. But there is this about this Bill: it lasts for only five years. If there are any difficulties of this sort during the next live years, then in five years' time those of us who are still alive will have the opportunity of voicing the matter and putting it right. That is one reason which I feel justifies me in not pressing this Amendment.
I hope that by this discussion I have enlisted the sympathy of all your Lordships—the noble and learned Viscount, Lord Simon, and the noble Lord, Lord Mancroft, have voiced theirs—and that we shall in future be careful when we introduce all kinds of new offences in enacting new legislation, and particularly private Members' legislation, which I feel is the danger, so to circumscribe the language in which those offences are defined that we shall not bring in the perfectly honest man. I protested against the Cockfighting Bill, introduced a short time ago, because it did not define the subject matter of the offence. For the same reason, I protested against a recent Bill making it an offence to transport a cubic 1062 yard of soil, and I had the appropriate Amendment put in there. I am in a difficult position here, because I fully concur that the Amendment I have propounded to this Bill is quite unsatisfactory—I admit that frankly. Therefore, I do not think my Amendment would cure this trouble. But, by having raised the matter and received considerable support on the broad theme of the argument, I have done what I wanted to do; and, with your Lordships' permission, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Bill passed.