§ 4.15 p.m.
§ House again in Committee on Amendment No. 1.
§ Baroness YOUNG
Perhaps we may now bring ourselves back to the Public Lending Right Bill. I imagine that my noble friend Lord Eccles will wish to reply to the points made by The noble Lord, Lord Donaldson; but may I say for my own part that I make no apology at all for raising this question about the principle of a QUANGO. Could I say to The noble Lord, Lord Willis, who I think made the point during a debate I initiated last November, that the House of Lords 1727 itself is a QUANGO, and who said by implication that we ought not to be questioning QUANGOS, that, to show my consistency, I am somebody who, though it may sound presumptuous to say so in your Lordships' House, thinks it is a great honour to belong to this House and yet favours the reform of the House and in fact has taken part in the work of the Committee of my noble friend Lord Home, which at least has studied the question in depth. So I would point out that I am not talking about one QUANGO rather than another. I therefore think it is very important, if one is interested in what I believe are major constitutional questions, that one should raise these matters and should not be put off from doing so by the feeling that perhaps one has no right to talk about them at all.
As a matter of fact, on considering what The noble Lord, Lord Willis, had to say, I think that we are in complete agreement because he was saying that the scheme needs to be administered. We all agree on that and what we are discussing is the form of that administration. He is saying that the QUANGO is right and I am saying that that case has to be proved. That is the difference between us, but we are agreed on the point of administration; that I will accept. I was therefore very interested to hear what The noble Lord, Lord Donaldson, had to say because in the Second Reading debate the point was made by The noble Lord, Lord Willis, that the scheme had been looked at by the Technical Investigation Group. That is set out, but we are not told what the group is or why it came to the conclusions it did. It simply says that the Committee did come to those conclusions. I accept that is put out.
§ Lord DONALDSON of KINGS-BRIDGE
I could send The noble Baroness their report if that would be helpful. I have not brought it with me because it has been over now for some three years, but there is a full report on this, with their reasons.
§ Baroness YOUNG
Yes, I would be interested to see that because I think this is a key to it. I was about to say that they clearly investigated the matter three years ago and, like everything else in public life, events do not stand still. Presumably it 1728 is nearly four years later now, if this was 1975, so I do not think that necessarily invalidates the argument at all. Furthermore, to talk of the figures being based on "a kind of guess" is not quite enough on a piece of legislation. I think we need to have much more substantial reasons for committing ourselves to a particular form of administration.
For my part, I shall study very carefully what The noble Lord, Lord Donaldson, has said. I shall consider the matter and see whether this is something to which I should like to return at another stage of the Bill. I indicated to The noble Lord that it is not my intention this afternoon to press this to a Division because I think it would be right to wait and see whether others feel that this is a matter which should be reconsidered. As I say, I should like to study The noble Lord's reply, and I thank him for the information he has given.
§ Viscount ECCLES
In view of what my noble friend has just said, I should like to support her. So far as I know, the only investigations into a purchases-based scheme which the Minister has are at least two years old. The Association of Metropolitan Authorities inform me that their improved scheme, costing much less, is a very recent discovery. I do not know the details of it, but I, too, should like to have another look at this. Therefore I shall not ask anyone to divide on this Amendment. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 1 agreed to.
§ Clauses 2 and 3 agreed to.
§ Clause 4 [The register]:
§ 4.20 p.m.
Viscount ECCLES moved Amendment No. 2:
Page 5, leave out lines 15 to 33.
§ The noble Viscount said: We now come to what is known as the penalty clause, and it was not in the Bill when we saw it earlier. It has come into this Bill for the first time. I have been asked to raise this subject by the local authorities because, as The noble Lord said on Second Reading, 1729 they feel very strongly about it. The noble Lord said that these subsections were more or less stock form and they appear in other Acts. I have had a look, and where they appear in four or five Acts that I have looked at the case is not at all parallel. I should briefly like to give your Lordships some examples.
§ In the Professions Supplementary to Medicine Act there is a penalty of £100 if someone gives false information to get himself on the medical register. I imagine that that is quite a wicked thing to do. In the Agriculture Acts of 1967 and 1970 the penalties are in respect of false statements about goods which a farmer wants to sell. There is a personal interest there and the farmer is trying to make money, so that is something rather different. In the Finance Act 1972 it is a question of a tax fraud through a taxpayer giving false information in his tax return.
If we look at this Bill, we see in sub-section(7) of Clause 4 the words:
It shall be an offence for any person, in connection with the entry of any matter whatsoever in the register, to make any statement which he knows to be false in a material particular".
Obviously, that is a very wrong thing to do and I know of no librarian who would make a statement which he knew to be false. So far as I have their opinion, I do not think that the librarians object to that. It is the next few words which seem to them unnecessary and which should be taken out. They are:
or recklessly to make any statement which is false in a material particular".
§ We have to look at what kind of statements these librarians will be asked to make. The statements that they will be asked to make will be what the computer says—the electronic pencil that is going across the ISBN in the front page of each book. No doubt your Lordships are all familiar with the computerised system which it is proposed to introduce into the 72 samples and thereafter into other libraries. Could a computer recklessly make a false statement? It certainly has done so in my bank account. I think that librarians are fully justified in saying that this is not on all fours with the frauds which would be committed for money under those other Acts.
§ As The noble Lord knows very well, whatever scheme is brought in, it will not 1730 work without the goodwill and collaboration of the librarians, and they feel it is unfair, in a novel scheme which nobody has worked before and which could not start if it was not computerised to a degree that is quite strange to them, that they should be under threat of a penalty of £1,000 if, recklessly, they or the computer, or both together, make a small mistake in returning the number of books which have been borrowed, or, I suppose, inventing an author or something of that kind. But this happens with our mechanised forms of information retrieval. I do not want to press this Amendment to a Division, but I would ask The noble Lord whether, between now and the next stage, he could take out the second part, because it is not on all fours with those other Acts of Parliament which he cited on Second Reading as fully justifying its inclusion in this Bill. I beg to move.
§ LORD WILLIS
I do not follow the reasoning of The noble Viscount on this Amendment, nor do I follow the reasoning of the local authorities. This penalty clause is really aimed at writers. It is writers who will have to register with the Registrar and have their names and particulars and the titles of their books placed on the register, and it is they who will be caught for making any false statement, deliberately or recklessly, I ask your Lordships to note the words, "deliberately or recklessly." In other words, in the unlikely case of The noble Viscount, Lord Eccles, claiming the authorship of all my books, or in the much more likely case of my claiming the authorship of The noble Viscount's books and therefore wanting to draw his public lending right, we should both be guilty of an offence under this Bill; and this is where the Bill would catch people.
So far as the librarians are concerned, the matter is always open to computer error, which can happen in any firm, but no magistrate in the land will convict anybody for what appears to be a genuine mistake. One must have penalties of some kind, and these penalties seem to me to be very eminently fair and reasonable. What is the alternative? Whether one is a librarian or an author, if one deliberately and recklessly makes a false statement to the Registrar and that can be proved, then, if there are not these penalty clauses, one will be liable under 1731 the criminal law. With these penalty clauses in the Bill, you will come up before a magistrate and the matter will be dealt with reasonably and quickly. Without these penalty clauses you will be liable—it is doubtful—under the criminal law and will have to come up in the High Court, where the consequences would be all the more expensive, time-wasting and serious. Therefore, it seems to me that what The noble Viscount, Lord Eccles, is asking for will rebound to the detriment of local authorities and librarians, and they are the ones who really ought to think again.
§ Viscount ECCLES
May I just ask The noble Lord whether he is aware that it is not he who will put his name on the register? It is not The noble Lord, Lord Willis, who will tell the Registrar how many times his books have been borrowed; it is the librarian. It is the librarian who has to take the chance of being found to be wrong, not himself. He does not know how many times his books will be borrowed.
§ LORD WILLIS
It does not work quite like that. Of course, as an author I should have to supply certain information to the Registrar, and if I gave false information I should be liable under this clause.
The librarian is in a slightly different position, because he is required to supply the results of borrowing from his library—and only 70 are to be chosen—to the central sample and the Registrar. We shall have to allow for the possibility of computer error. The noble Viscount, Lord Eccles, cannot possibly tell me that, if there were an accidental error and that could be proved, anybody would be charged or would suffer because of it. If, on the other hand, a librarian were deliberately to falsify the returns in order to benefit some author, or not to benefit some author, then there would of course be an offence, and I hope that nobody in this House is saying that a librarian should not be punished for that. What I am saying is that if you take out this clause, in the unlikely event that one discovers such a dishonest librarian he will be liable under the criminal law to worse penalties.
§ 4.30 p.m.
§ Lord DONALDSON of KINGS-BRIDGE
My Lords, may I begin by 1732 saying that The noble Viscount said that these subsections were not in the Bill when it came to the House on the previous occasion. For what it is worth, may I inform him that they were included in the Bill. The important point has, I think, been made by my noble friend Lord Willis. It is, of course, absolutely essential that one should have the goodwill of the people who are going to work this scheme; namely, the librarians. It has been an extremely unhappy period of argument for me, but my legal advice—which is that these clauses are necessary to make the Bill effective and to bring it into line with the other Bills, some of which The noble Viscount has quoted, but I have others in mind as well—leads me to the conclusion that I must insist upon this against their wishes. I have had to do so because the objection is meaningless.
These subsections are included, first and foremost, to protect the interests of those who stand to gain lawfully from the public lending right scheme against those who might attempt to cheat by giving false information to the Registrar. Let me stress that these subsections are aimed at deliberate cheats. It is common knowledge that the Library Association are not happy about this; I had a long discussion with their committee and I thought that I had convinced them, but it appears that in the end I have not. However, I have done the best that I can.
This is not a subject on which one can say a great deal. My noble friend has pointed out that under the common law the procedure for catching a cheat would be much more elaborate and long drawn out and would, in fact, carry heavier penalties. So if you are going to legislate against cheating, it seems to me to be wholly desirable to legislate by having clauses which affect cheating under the new rights created by this Bill. It seems to me that the only case where a librarian could be involved would be one where a librarian would be acting in a way which would be indefensible, and I do not think that any librarian would wish to defend it. I say this advisedly. This is my belief about what the Bill means.
The noble Viscount quoted the question of a mistake being made by a computer, but no judge or magistrate is going to accuse a librarian of being reckless if he copies down something which a computer 1733 has got wrong. I honestly believe, with all my heart, that this is a misconception. If it were not a misconception, I should do everything that I could to get it out, but I believe this to be the most efficient way of protecting the public purse and authors from fraud. I cannot see any reason why one should worry about the technical people who are involved. They are not, generally speaking, making claims at all. The librarian is passing something on. If a librarian said that 100 instead of 10 books had been borrowed and kept the difference, everybody would regard this as fraud which ought to be punished. The clauses in the Bill will deal with that point. I believe it to be no more than that.
I sincerely hope that in the light of what I have said The noble Viscount will feel able to withdraw his Amendment. He has asked me to look at it again, and of course I shall do so. However, I have looked at it so very hard already, with a strong desire to satisfy the librarians, that I cannot anticipate being able to withdraw it. However, I shall certainly have a look at it again.
§ Lord HALE
I had not intended to intervene. Certainly I do not want to say a word to hold up the Bill, nor do I want to register a protest; but for 50 consecutive years I have been protesting about the disposition, particularly on the part of the party to which I belong, to think that there must be a punishment somewhere and to contemplate enforcing their will by some vague form of judicial discipline in order to prepare for almost nothing in detail, except the possibility of a contravention of their will. It is very much the doctrine of the bereaved mother in Albert and the Lion:Mother had got proper blazingWhen she thought where her Albert had gone, And said: 'Someone's got to be summonsed', So that was decided upon".So we go on saying that somebody has got to be summonsed. Even if we make the fine big enough—in this case £1,000—for someone to be put in prison for non-payment, we have been told that for something like 250 years now nobody ever has been put into prison for non-payment but for some vague form of contempt of court. Our prisons, however, still report increased occupancy; we have a large prison population.
1734 I really cannot see why we want to have manacles or any punitive procedure of any kind, sort or description. If somebody pinches books from a library, as often happens, until now nobody has ever heard of anyone being sent to prison or, indeed, being brought before a tribunal for a minor offence connected with the public supply of books. If one formed a village cricket club, it would be quite easy to make provision for all the petty crimes which might be committed by the members and to say, "How are we ever going to keep discipline on a cricket pitch without making provision for it?" Now we have a situation in which, so far as I know, nobody really knows how the scheme is going to be administered—therefore, nobody really knows in detail how it could be infringed—but there is a passionate desire to have some method of punishment.
In an area in which the sums concerned cannot be large in any event, my own disposition is not to put people in prison, not to bring them up for punishment, not to have too many prosecuting lawyers, not to have a public prosecutor, whose office at the moment is one of the largest, the most expanding and the most various in its applications.
Although this is a very small matter, I have intervened with distaste and reluctance because observations are being made that are very, very far away from any rule of law. We are now discussing, in a House which normally can contain up to five ex-Lord Chancellors, many Law Lords and a vast amount of knowledge on the subject, the petty criminal law at large when the petty criminal law does not seem to be demanded. Therefore I venture to hope that my noble friend will look at the matter again very carefully, put the point to his advisers and realise that he has at his disposal the advice of experts of the greatest possible eminence, both from the Bar and from the Bench.
§ Baroness YOUNG
I do not wish to follow The noble Lord, Lord Hale, in his argument. There is, however, one question which I should like to put, because I think that the point that was made by my noble friend Lord Eccles is valid; namely, is there any kind of appeals procedure for somebody who has been accused and possibly convicted to appeal against the matter, and is it normal to include some kind of procedure to accompany these clauses?
§ 4.40 p.m.
Lord PAGET of NORTHAMPTON
I should like to follow my noble and very old friend Lord Hale with most cordial agreement. I feel that the tendency to create crimes is one in which Government indulge far too often. The noble Baroness inquired whether there would be an appeal procedure here. I presume that there would be the normal appeal which exists in the case of a criminal offence, but why should we make a new criminal offence when we have a perfectly good old one? The noble Lord said that if somebody deliberately makes a fraudulent statement in order to get money we would all think that it was wrong. I cordially agree with him; so does the criminal law. It is already a criminal offence fraudulently to make a statement for the purpose of obtaining or stealing money. It is contrary to the Larceny Act, and if the object is as stated by the Minister then it is already covered by the criminal law—a criminal law which has been thought out, interpreted and tested in the courts. The offence which he wants to aim at is well covered, so why create another and new offence? The noble Viscount, Lord Eccles, said that he did not intend to divide the Committee on this clause. In view of the extraordinarily unsatisfactory answer which he has received I am inclined to hope that he will change his mind.
§ Lord DONALDSON of KINGS-BRIDGE
May I say two things: first, under the Bill, if it becomes an Act, offences of this kind would go to the magistrates' court and of course there is appeal against sentence in the normal way; so that the answer to the question put by The noble Baroness, Lady Young. is that there would be appeal. In regard to my noble friend's point about reinforcing with a simpler measure the more complicated measure which of course exists, I have already said that it exists. I have said that I am advised that it would be a very much more efficient system if we were to bring this in and nobody would be worse off for it; but I must point out that the argument used by my noble friend is a general legal one, whereas the argument which the librarians have been using and which The noble Viscount was putting forward, was that in some way it would be unfair to them. I think the second part is clearly not the case. I do not think a librarian would be any worse in this 1736 connection than any other member of the public who cheated, and I think both would be dealt with in a more efficient way under the clauses as they stand than if we left them out. I do not think I can say more on that.
§ Viscount ECCLES
What matters is that the librarians should work this Bill, when it becomes an Act, with goodwill, and therefore as I tabled this Amendment on behalf of the local authorities, clearly it would be wrong to divide the Committee until I have heard whether they are swayed by the Minister's argument. They may be—and a good thing too if they are; but I think I must now consult them again. I thought the Minister produced some very strong and interesting arguments. I still think that the Association of Local Authorities know their law pretty well and they know their members pretty well, and if they really are worried then I think it is our duty to find out why they are worried. Having said that, I ask leave to withdraw the Amendment but will possibly come back to it at the next stage of the Bill.
§ Amendment, by leave, withdrawn.
§ Clause 4 agreed to.
§ Remaining clause agreed to.
§ Schedule [The Registrar of Public Lending Right]:
§ On Question, Whether this shall be the Schedule to the Bill?
§ Lord DAVIES of LEEK
There are a couple of small questions which I should like to ask in connection with the Schedule. By reading the Schedule carefully one notices that the Registrar can pay out money from the money provided by the Secretary of State, and he can also pay that out to subsidiary persons, because in sub-paragraph (2) the Registrar may direct, in case of persons appointed under this paragraph that money be paid—and I am paraphrasing—to them for pensions, allowances, gratuities et cetera to the number that he thinks are required.
My first point is this: Is the sum of £2 million to be treated similarly to the way in which grants are sometimes made under the National Health Act? Pre- 1737 suming that £2 million is not spent by the libraries in amounts to the authors in a one year period, plus the salaries and gratuities to the Registrar and his subsidiary helpers, will the amount of money go on to another £2 million the following year? What will be the position? Are the Treasury going to reclaim, say, £500,000 if that sum has not been spent? Will The noble Lord be good enough to clarify that point?
§ Lord DONALDSON of KINGS-BRIDGE
I can only tell the Committee that if the Registrar fails to spend this extremely small sum of money in relation to the obligations, I think we should change the Registrar. The fact remains that the Treasury usually reserve the right to call back money that is not spent, but also in my experience they can be very reasonable over not very large sums which are not spent for a good reason. If The noble Lord would like me to, I will write to him with a more definite reply, but that is the best I can do at the moment.
§ On Question, Schedule agreed to.
§ House resumed: Bill reported without amendment: Report received.