§ 3.48 p.m.
VISCOUNT COLVILLE OF CULROSSMy Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Viscount Colville of Crelross.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD ST. HELENS in the Chair.]
§ Clause 1 agreed to.
§ Clause 2 [Persons convicted not to attend or participate in auctions]:
§
VISCOUNT COLVILLE OF CULROSS moved Amendment No. 1:
Page 2, line 22, leave out ("his representative") and insert ("that person and any representative of him").
§ The noble Viscount said: In moving these Amendments, I am aware that we have spent a little time in discussing whether we should have the Divorce Bill tomorrow or not. I will therefore try to deal with them very quickly. If any 1196 Member of the Committee has any point that he wishes to raise on them, I will try to explain. Otherwise I hope that I may be forgiven for giving only a fairly brief resume of the points of the Amendments.
§ In the case of the first one, it has been said to me—and I think it is probably right—that the form of the order the court may make under Clause 2 of the Bill as drafted would he only of one sort. The court could only make an order prohibiting the person convicted, together with any representative of him, from attending auctions in accordance with the rest of the provisions of the clause. I do not think that that is sufficiently flexible. I believe that the court ought to have power to make one or two sorts of order: either to ban the person convicted, by himself, or, if it is a suitable case and they feel it necessary, to ban him together with any representatives of him. I believe that orders under this clause may be pretty rare—indeed, convictions under the existing Act have been non-existent. One hopes that that may be put right. Nevertheless, I believe that the court should have the widest flexibility in accordance with the general policy of giving flexibility to a court in sentencing. It is in order to try to ensure that that I move this Amendment now. I beg to move.
§ BARONESS PHILLIPSThe noble Viscount, Lord Colville of Cuirass, has clearly explained the purpose of this Amendment, which is to make quite clear the scope of the ban which a court may impose, and to give the court discretion to exclude representatives of a convicted person from the ban when it is appropriate to do so. I am happy to say that Her Majesty's Government agree with him and we support the Amendment.
§ On Question, Amendment agreed to.
§
VISCOUNT COLVILLE OF CULROSS moved Amendment No. 2:
Page 2, line 22, after ("not") insert ("(without leave of the court)").
§ The noble Viscount said: This is a point which perhaps has a little more substance than might at first appear. I have heard it said that a ban under Clause 2, an order preventing a person convicted from attending auctions, might be unfair because of one of two reasons: the circumstances might change or, alternatively, 1197 it might be that the person is a dealer who has been convicted for belonging to a ring and he normally operates in one particular field, say the fine arts, but is also, as are most of us, a gardener, and he wishes to go to a country sale to buy a potato sieve, or something of that nature. If the order by the court is strictly observed he cannot go to the other sort of auction at all. That is quite wrong and again there ought to be more flexibility.
§ How it is to be done is suggested by this Amendment and I hope that the Committee will approve of it. If the person wanted to go to some special sort of auction outside his ordinary line of business he would be able to apply to the court and I have no doubt that the court would allow him to go. It might be that he would be able to persuade the court to lift the order altogether—that, after all, does happen in other cases such as a disqualification from driving; it is possible in such a case to go back after a period of time to the court who convicted you and ask them to review the disqualification. Therefore there is a respectable precedent for this measure that I suggest. I have considered whether any procedure ought to be mentioned in the Bill, but I think it is inherent in the wording that the court would be allowed to entertain an application for a review of this matter; accordingly I do not think it necessary to put in anything more than appears in the Amendment. I beg to move.
§ BARONESS PHILLIPSI am again pleased, on behalf of Her Majesty's Government, to tell the noble Viscount that I can support the Amendment which would, as the noble Viscount has so clearly pointed out, introduce some flexibility in regard to the ban. We are extremely fortunate to have someone like the noble Viscount to tender these Amendments and make clear their purpose to us all.
§ On Question, Amendment agreed to.
VISCOUNT COLVILLE OF CULROSSAmendments Nos. 3 and 4 are on the same point. They correct what is perfectly plainly a mistake. The clause as it stands does not allow the magistrates or, alternatively, quarter sessions or assizes to impose an order for less than one year or less than three years. It cer- 1198 tainly ought to be a maximum period and the Amendment makes that clear. I beg to move.
§
Amendment moved—
Page 2, line 24, leave out ("less") and insert ("more").—(Viscount Colville of Culross.)
§ BARONESS PHILLIPSI am happy to tell the noble Viscount that Her Majesty's Government support the Amendment.
§ On Question, Amendment agreed to.
§
Amendment moved—
Page 2, line 26, leave out ("less") and insert ("more").—(Viscount Colville of Culross.)
§ On Question, Amendment agreed to.
§
VISCOUNT COLVILLE OF CULROSS moved Amendment No. 5:
Page 2, line 28, leave out from ("goods") to ("or") in line 30 and insert ("intended for sale by auction are on display").
§ The noble Viscount said: This is little more than a drafting Amendment. As the Bill is now drafted, a person upon whom an order has been made would commit an offence—or at least he would do if one of my later Amendments is accepted—if he went into a public hall which was going to he used for an auction the following Friday, even although he went in to attend a whist drive. That is plainly absurd. On the other hand, one wishes to maintain the position that he should not go in when subject to one of these orders, even to look at goods on display before an auction. I hope I have devised (I must say with some assistance) words which happily draw the line between what is undesirable and what is desirable, and those words are in the Amendment which I beg to move.
§ BARONESS PHILLIPSI am happy to tell the noble Viscount that I can support this Amendment. I have always hoped that there would be an occasion when I could accept all the Amendments to a Bill.
§ On Question, Amendment agreed to.
1199
§
Amendment moved—
Page 2, line 31, leave out ("public").—(Viscount Colville of Culross.)
§ On Question, Amendment agreed to.
§ VISCOUNT COLVILLE OF CULROSS moved Amendment No. 7:
§
Page 2, line 31, at end insert—
("( ) In the event of a contravention of an order under this section, the person who contravenes it (and, if he is the representative of another, that other also) shall be guilty of an offence and liable—
( ) In any proceedings against a person in respect of a contravention of an order under this section consisting in the entry upon premises where goods intended for sale by auction were on display, it shall be a defence for him to prove that he did not know, and had no reason to suspect, that goods so intended were on display on the premises, and in any proceedings against a person in respect of a contravention of such an order consisting in his having done something as the representative of another, it shall be a defenece for him to prove that he did not know, and had no reason to suspect, that that other was the subject of such an order.
( ) A person shall not be guilty of an offence under this section by reason only of his selling property by auction or causing it to be so sold.")
§ The noble Viscount said: There are three new subsections in this Amendment. I have put them all down at once, and I hope that will not be considered improper. I do not think there is anything very startling in any of them. The first makes it an offence to contravene an order already made under Clause 2. If this part of this Amendment were not inserted I do not think that anything much could be done, by a magistrate's court at any rate, if someone on whom an order was made flouted it; he would go scot free. Therefore the penalty which is set down in the first part of the Amendment is necessary. The actual penalties suggested, which are, of course, maxima, seem to be in line with the rest of the penalties under this Bill, and I hope, therefore, that they are satisfactory.
§ The second new subsection provides for two defences. In the first place, it applies to anybody who is the subject of an order under Clause 2 and it lays down that if he goes into a place where goods intended for sale by auction are on display it would be a defence for him 1200 to show that he did not know the goods were there and had no reason to suspect it. That seems a perfectly reasonable thing to provide for. If the person did not know, he could not have had the guilty intention which is necessary to establish a criminal offence anyway. The second defence concerns an order which includes representatives of the person on whom the order was primarily made and who had been convicted. It provides that if any such representative takes part in an auction in such a way as to contravene the order, he has a defence if he shows that the person he was representing was not to his knowledge or suspicion the subject of any order. Again, this would seem entirely reasonable. If he did not know that there was any order applying to the person who had been convicted he could hardly be guilty in any sense of a breach of the order. The second part of the second subsection is intended to provide a defence for that.
§ The third subsection would seem to be a reasonable provision when a person is subject to one of the bans or orders under Clause 2. It is to prevent his taking part in an auction where he goes to buy, or to bid for things hoping that he will buy them. There does not seem to be any point in preventing him from selling his own goods, or indeed goods belonging to anyone else, because he is not likely then to take part in any of the dishonest activities of which he has been convicted. Therefore any order under Clause 2 would not be infringed if the person to whom it related sold by auction his property, or the property of someone else. I hope that is an adequate explanation of the last part of the Amendment. I beg to move.
§ LORD RAGLANI wonder whether I might ask a question of the noble Viscount on a point of clarification? He said that the first subsection provides for a maximum sentence. I notice that subsection (b) provides for a fine. Is that an unlimited fine?
VISCOUNT COLVILLE OF CULROSSThe noble Lord, Lord Raglan, is quite right. There is no maximum on the fine which may be imposed on indictment, either by quarter sessions or assizes. This is a very common provision in criminal Statutes and a large number of other cases could be shown to the noble Lord. It is a very ordinary thing and nothing 1201 to worry about, but the noble Lord is right—this is one of the occasions where no maximum is laid down.
THE DUKE OF ATHOLLIn Clause 1, on summary conviction, an offender is liable to a fine not exceeding £400 or imprisonment for a term not exceeding six months, or both. Under the proposed new subsection, he is liable only to a fine and not to a term of imprisonment. I feel that this is a matter in which imprisonment could be a useful deterrent, because the sums involved are so vast.
VISCOUNT COLVILLE OF CULROSSI am grateful to the noble Duke for making this point, which is something I should like to look at. If it was a serious case, where somebody had been guilty of a serious offence in the first place, had had an order imposed on him and in a serious way infringed that order, there would be no difficulty in dealing with him on indictment, in which case he could be sent to prison by quarter sessions or assizes. If he came up before the magistrates, they could not send him to prison for any length of time and would only fine him. I should like to look at this point again. Probably the Amendment as it stands is enough, subject to anything I may consider in the meantime before Report stage.
§ LORD STRABOLGII should like to congratulate my noble friend on these Amendments and on putting this clause right. There were reservations about it in another place and the noble Viscount had reservations about it on Second Reading, as I had. I think that the Amendments are a great improvement and I am glad that they have the support of the Government and indeed, I hone, of the whole Committee. I am glad that the Bill is having such a happy passage.
There is one question I should like to ask. Does this Amendment introduce a defence for the representative who is buying something on his own account? The Amendment allows a representative to sell something, but I am not clear whether he is allowed to go to an auction, not necessarily to represent his partner who may have been convicted, but on his own account to buy something, maybe of a different kind. I am not clear whether that is a sufficient defence under the wording of the clause as it stands at present.
VISCOUNT COLVILLE OF CULROSSI am much obliged to the noble Lord, Lord Strabolgi, for his kind words as, indeed, I am to the noble Baroness for her encouragement. I think the answer is this. If an order were to include the representative, it would not include anybody by name; it would merely apply to the person convicted or any representatives of him. Therefore, at any time for the period of the order it is a question of fact whether or not somebody is acting as representative of the person convicted, who is the main subject of the order.
If the partner of a convicted dealer goes to an auction and buys something on his own account, he is not doing that as a representative because he is not doing it on behalf of the person convicted. I appreciate that evidential proof of this matter may be extremely difficult to obtain, but I should have thought that it was a perfect defence by a person accused of being a representative and infringing an order if he could show the court that he was acting not on behalf of the person convicted but on his own account.
§ LORD STRABOLGII am much obliged to the noble Lord. The matter is now clear. I thought it was worth getting it on the Record.
§ BARONESS PHILLIPSI should like to add my thanks to the noble Viscount for the spendid way in which he has dealt with the various questions that have arisen. My notes on the three subsections puts in a slightly more complicated way what the noble Viscount has so clearly explained and therefore I have much pleasure in supporting the Amendment.
§ On Question, Amendment agreed to.
§ Clause 2, as amended, agreed to.
§ Remaining clauses agreed to.
§ House resumed: Bill reported with the Amendments.