COMMONS AMENDMENTS (Hansard, 16 November 1976)

§ Baroness STEDMAN

My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 1. I should like, with the House's permission, to speak also to Amendments Nos. 4, 6 and 76. These are I think the most important issues on which Amendments were made in another place. During Report stage in this House, your Lords-ships expressed a strong desire to enable private individuals and bodies other than Customs to bring prosecutions for offences connected with illegal import. The House then inserted the provisions which appear as subsections 1(3), 1(9) and 1(10) in your Lordships' copies of the Bill, creating specific offences and penalties for illegal import and for the handling of illegally imported goods.

The Government accept entirely the views of your Lordships that the voluntary conservation bodies can play a useful role in the enforcement of this legislation. But I repeat, as I said on Report, that Customs must remain the prime enforcement body under this Bill: it is they to whom we must look to ensure that we can fulfil our international obligations under the Convention. We must ensure that any extra activity complements the work of Customs and does not obstruct it. We must also ensure that innocent individuals are not open to harassment and that legitimate traders are not unduly hampered.

We have given careful thought to the suggestion of the noble Lord, Lord Houghton, that certain designated bodies only should be empowered to bring private prosecutions. But we concluded that there are too many bodies with an interest in this field. None is so obviously pre-eminent as to dispel all argument, and selection would be an invidious process. We have therefore sought, in close consultation with the parties concerned, a solution which would allow any person or 1256 body, other than Customs, to bring proceedings in certain cases and yet safeguard the powers of Customs and avoid so far as possible overlap with their work. The exercise has been protracted and difficult and I owe much to the positive contributions made by the Retail Consortium and by the conservationists themselves. The result is Amendment No. 6.

Our objective has been to create conditions in which conservationists can pursue suspect items which are on sale or display within the country. Their activities would then be complementary to those of Customs, whose main role is naturally enforcement at the point of importation. The new clause would make it an absolute offence to sell, to offer or expose for sale, to have in possession for sale or to display any item the unlicensed import of which is made illegal by this Bill. It does not make an offence of possession alone—it must be possession for the purpose of sale. But it covers also goods made from illegal imports provided those goods are of a kind listed in Schedule 3.

A defence is provided in subsection (2) whereby anyone charged may show that he made inquiries when he took delivery of the goods. The inquiries have to be "such as are reasonable" in the circumstances. The interpretation of the term "reasonable" in any particular case would of course be entirely a matter for the courts. The other leg of the defence, that the person charged must have had no reason to believe that the goods were illegal at the time the alleged offence was committed, is I hope self-explanatory.

Subsection (3) provides a means whereby a trader can satisfy the requirement of making reasonable inquiries. If he obtains from his supplier a certificate which complies with the terms of the subsection, he will be deemed to have made reasonable inquiry. This provision has been made in response to a request of retailers. There is, however, no need for anyone to trouble with certificates if he prefers to pursue his inquiries in other ways. Subsection (4) provides an offence for false statements on the certificate. Subsection (5) provides penalties which conform with those generally applicable to offences of this kind and have regard to the custodial penalties in the Customs and Excise Act 1952 for illegal import with 1257 intent to evade. Subsection (8) ensures that the penalties for prosecutions under the Customs and Excise Act are not affected. Amendment No. 76 would extend the scope of the Long Title to allow for the control of certain transactions, such as display, which might conceivably not be regarded as trade.

I have been given to understand that the voluntary conservation bodies support Amendment No. 6; also that traders' representatives are satisfied that it would not involve their members in excessive paperwork or improper harassment. The new clause will also clearly separate the respective roles of Customs and of other bodies and ensure that Customs legislation is not disapplied. I trust, therefore, that noble Lords will agree that Amendment No. 6 substantially fulfils the objectives they had in mind and can therefore replace the provisions which Amendments Nos. 1 and 4 would delete.