COMMONS AMENDMENTS (Hansard, 25 July 1969)

§ The Lord CHANCELLOR
My Lords, these two Amendments relate to the same point, and therefore I will move that this House doth agree with the Commons in their Amendments Nos. 1 and 2. These Amendments raise a point on this Bill which was never considered by your Lordships at all. Therefore I must explain what has happened. Your Lordships will remember that until 1949 we had only pure Consolidation Bills; that is to say, Bills which had accurately 1199 to state the law as it was. My noble and learned predecessor, Lord Jowitt, thought that this was very restrictive and that it should be possible when consolidating to put right small things which were obviously wrong. Therefore, under the 1949 Act consolidation was allowed with minor corrections and improvements. This was found to be very advantageous, although from time to time there was a good deal of understandable argument as to what were minor corrections and improvements.
Your Lordships may remember that in this Parliament, on a Bill called the Shell Fish Bill, it was found that the 1949 Act procedure was unduly restrictive. I sought to widen it, and after some doubts the House agreed that we could have a third kind of consolidation; namely, consolidation with amendments of the law recommended by the Law Commission. But as under the 1949 Act Parliament is not allowed to alter the decision of the Joint Consolidation Committee, the further extension was not done by Statute, because no such provision was thought necessary: being partly experimental, it was done on the footing that it would be open to either House to disagree on one or more points with the Report of the Joint Consolidation Committee.
My Lords, this Trustee Savings Banks Bill is a second Bill of that kind. It was based on a Report from the Law Commission who recommended 21 amendments to the law in order to effect a satisfactory consolidation. Of course, many of the 21 Amendments could have been minor corrections and improvements under the 1949 Act but it is not necessary to specify which were which. This gives us a broader power of amending when consolidating.
When the Bill went to the Joint Consolidation Committee they accepted 16 out of the 21 recommendations made by the Law Commission and they disagreed to five. Of those five it seemed to me that three were clearly right, and the Law Commission agreed. On the other two, which dealt with very much the same point, I was frankly doubtful; but I took no point on them because this was on July 16, which was only nine days before we were due to rise. I did not know what view might be taken in the other place and I thought it would 1200 not be wise of me to take any point on this at this stage of the Session, and that I had better get the Bill. When the Bill went to the other place Mr. Graham Page, who has always taken a great interest in Consolidation Bills—which I welcome—asked for a Committee stage, as he was entitled to do. On the Committee stage he took the point with reference to these two recommendations that the Law Commission had been right and the Joint Consolidation Committee was wrong.
The point at issue is a fairly simple one, and it is this. Both Amendments arise on Clause 92 of the Bill. If I may put it quite shortly, about a hundred years ago the then law provided that: If a bank, association, company or other person not being a trustee savings bank uses or adopts the title of savings bank certified under the Act of 1863 or savings bank certified under the Trustee Savings Banks Act 1954 as their or his designation or in carrying on business the members of the association or company or as the case may be the said persons shall be guilty of a misdemeanour. Obviously people ought not to carry on business as a trustee savings bank when they are not. But it will be observed that the penalty is imposed not on the company which does it but on the shareholders, the members. Of course, we do not do that nowadays. The common Clause is one making liable to a penalty the company and the director or manager who actually does the thing which is prohibited. So the Law Commission were saying, "It is going to be very unsatisfactory in this consolidation if we leave this old formula which imposes a liability on the shareholders of the company"(who, I suppose, in those days were very much more directly concerned with the control of the company than they are today)"and we ought to translate this into the modern form of imposing a penalty on the company". That is what we usually call "the directors' clause".
The view which the Joint Committee took about that was that this was going a bit far, in the sense that it was imposing on people a criminal liability which had not been imposed on them before; and what the Joint Committee eventually said, if I may paraphrase it, was: "Well, let us disagree with this recommendation and then the House, either House, if they think this is all right, can always accept it." Indeed the noble and learned Lord, Lord Guest, said, "I am 1201 in favour of taking it out and leaving the House to put it in if it wants to." Therefore, if I may say so, I think that everybody has been right throughout. The Law Commission were quite right to make their recommendation. I would not in the least criticise the Joint Consolidation Committee for taking the view, "If we take it out, this will draw attention to it; and then it is up to either House to put it back if they want to."
My Lords, I hope that I was right in thinking that at that stage in the Session, only nine days from the day when the House was going to rise, I had better perhaps leave it. Obviously, it is not a point of great importance. I do not know whether anybody ever has pretended to be a trustee savings bank when he was not, and I think it very unlikely that anybody will pretend to be a trustee savings bank, so it did not seem to me really to matter. Mr. Graham Page, having taken the point, and the other House now taking the view that it is better to have the modern form rather than the old form, I hope that this House will concur. Therefore I beg to move that this House doth agree with the Commons in their Amendments.

Viscount COLVILLE of CULROSS
My Lords, I apologise for having missed the first short part of the speech of the noble and learned Lord the Lord Chancellor, but of course he has summarised very accurately what happened. I cannot, from memory, recall whether I was actually at the Joint Consolidation Committee when this matter was dealt with, but I certainly read the proceedings, and the noble and learned Lord has rightly paraphrased what happened. I suggest to the House that these Amendments are right; but I also agree with what the noble and learned Lord has said, that where there is such a provision as this which imposes a novel criminal liability on people who have not previously been liable, then it is for Parliament, and not for the Joint Consolidation Committee, to say so.
I think that this has been a salutary exercise, because it shows the procedure whereby these Bills (which are mainly consolidation Bills but which have the recommendations of the Law Commission 1202 attached to them and which are discussed with them) can be discussed in either House afterwards. It further shows that we are not bound to accede one way or the other to what the Joint Committee says, and that the Joint Committee should be entitled to require both Houses to make up their minds on these joints. On the merits, I agree with the noble and learned Lord that it is not now the shareholders who ought to carry this liability but the officers and the directors who obviously, if this thing occurred at all, would be the people responsible for it. It is the modern form, and I hope that the House will agree with the Amendments.

§ Lord ILFORD
My Lords, I was present at the meeting of the Joint Consolidation Committee. I must admit that my recollection of what took place on that occasion is not now very vivid, but it may be of some satisfaction to the noble and learned Lord who sits on the Woolsack that in so far as my recollection goes it confirms the statement that he has just made to the House.

§ Lord BESWICK
My Lords, in order that the formalities may be completed before Royal Assent is notified, I beg to move, that the House do now adjourn until ten minutes past twelve o'clock.