The first Amendment on the Paper to leave out Clause 1 is out of order, as as are all the Amendments to the Schedule. The effect of them would be to omit the Schedule altogether, and without it the Bill would not make sense. The first Amendment I propose to call is that in page 1, line 5, "to leave out 'For,' and to insert 'In.'" I think that, if I am right, that Amendment and the two which follow in lines 8 and 10 can be discussed together.
May I deal with it in this way? All these Amendments raise one fundamental question of importance and deal with the general question of the principle of the burden of proof. The Amendments that would become relevant on the Third Reading, although they cannot be called on the Third Reading, deal with the Schedule separately.
There are obviously two ways of approaching a Bill of this kind. In the first place, the general principle of the shifting of the burden of proof raises a fundamental issue which covers everything; or, alternatively, one has to look at the separate provisions of each of the Acts of Parliament that are amended in order to decide whether, in the circumstances of the particular Act, the Amendments suggested in this Bill should apply. These are quite obviously two entirely separate approaches. My original approach to this Bill when we dealt with it on the—
I am treating the Amendment, which I am waiting for the hon. and learned Gentleman to move, namely, in page 1, line 5, to leave out "For," and to insert "In," as an introductory Amendment to cover the next two Amendments as well, so that one common discussion can cover the three points.
I beg to move, in page 1, line 5, to leave out "For," and to insert "In."
I agree that the other two Amendments should be taken with this one. I was indicating that the three taken together do not raise any matter which relates to any particular Act. They deal with a matter of principle which applies to all Acts, and I was indicating that there were two approaches possible to a Bill of this kind. One is the approach of a general principle which is embodied in these Amendments and is applicable to all Acts on grounds of principle; and secondly, the approach that each Act should be looked at in the light of the provisions in that Act, and that one should come to a decision on each Act separately.
I was indicating that when we dealt with this in Committee I regarded it, primarily at any rate, as a question of general principle which was applicable to all the Acts. But I found that the approach of the hon. Members sponsoring this Bill was a different one. Their approach was that each Act must be regarded and examined carefully in the light of the circumstances of that Act and the decision made by the House upon it. It is a fact that the Measures which are included in the Schedule are all of them Measures which were introduced by the Labour Government. There are Measures which include a similar provision to the provision which this Bill seeks to eliminate from these Statutes included in other Statutes.
Obviously the sponsors of this Bill, when they come before the House, are met with a difficulty. If it is a matter of principle, why should one differentiate between the Acts of the Labour Government introduced between 1946 and 1949 and other Acts passed by other Governments at different times, although they include identical provisions? We were met with the answer that each Act had been carefully considered in relation to the onus of proof. The Solicitor-General repeated that time and again in the course of his observations. If that is so, of course each one of these Acts must be considered by the House on its merits in relation to the case put up.
I was waiting for the hon. and learned Member to come to the point. He speaks of two methods of approach to the Bill, but he will remember that one method may be appropriate for Committee and a different one for Report stage, on which we are now. I have ruled in regard to the Report stage that I cannot accept the Amendments to the Schedule, which would destroy the Schedule in fact, and the hon. and learned Member must confine himself to the Amendment, which is in order and which I have selected.
May I ask for elucidation of the Ruling you have given, because I should like to understand it quite clearly—not because I make the slightest criticism of it, which of course would be out of order and most objectionable. Looking at the Amendments to the Schedule as a whole, quite obviously if they are all ruled out of order certain results would ensue. One result must surely be that it would be impossible for any question to be raised on this side of the House today on a particular Amendment which might be entirely different from other Amendments contained in the Schedule.
I ask for your guidance in connection with your Ruling as to whether there would be any opportunity today for selecting a particular part of the Schedule and objecting to that. The great difficulty is, of course, that the words which have been used by the sponsors of the Bill are identical in each case. The appearance is given that precisely the same point arises in respect of each of the Acts referred to in the Schedule. My submission is that if there is not an opportunity today, because of the difficulties arising out of your Ruling, there should be some further opportunity at some time of differentiating between one Act and another mentioned in this Schedule. I should be grateful if you could assist us in that in order that we may put our case.
May I most respectfully direct your attention to two matters? First of all, as always in these cases there are hon. Members like myself who have not the advantage of having been on the Committee and therefore have had no opportunity to raise the particular question of the application of this form of words to each of these Acts. In that connection, may I respectfully point out that we have the authority of the Solicitor-General himself for saying that the merits and suitability of the amendments which this Bill proposes must be judged in the light of each Act. They will vary in different cases.
Secondly, although I was not in the Committee I cannot help observing that—owing no doubt to some good reason—the Schedule went through without any discussion at all of the very point which the Solicitor-General had already indicated was of such importance. In those circumstances, hon. Members like my hon. Friend the Member for Wigan (Mr. R. Williams) and myself are now in considerable difficulty, because we shall be unable to raise what the Solicitor-General considered to be the most important point in the Bill.
I cannot, of course, speak as to what transpired in Committee. I must accept the Bill as amended by the Standing Committee and deal with it at this stage in the House. It does appear to me that, whatever might have been done in Committee, to single out and particularise as between the various Acts mentioned in the Schedule cannot be done here if in fact the effect of all the Amendments taken together would be to remove the Schedule from the Bill. It is clear that without the Schedule and Clause 1, the Bill would not make sense. Even if the Amendment on which we now are is carried, the Schedule will have to remain. The only remedy I can suggest is that on Third Reading hon. Members could draw the attention of the sponsors to any particular Act in the Schedule which they think should not be there. That would be perfectly in order.
I most respectfully appreciate that that would be the effect if all the Amendments were carried, but of course that does not necessarily follow. Would we be in order if those of us who have put our names to the Amendments moved, not all of them, but one or two of them, in order to call attention to cases where we think the proposed amendment in the Bill is particularly inappropriate?
The hon. and learned Member should have thought of that before. If he had singled out one or two, that would have put a different complexion on the matter. I do not say I would have selected them, but it would have been a different proposition altogether. I can assure him that I have looked into the matter and there is a precedent for this.
That does mean, does it, that in no circumstances during the Report stage can we discuss the Schedule, or anything in it? That puts us in a very awkward position. It is true that we can discuss it, possibly at some length, when we reach Third Reading. But our desire is not to obstruct our desire is to improve. What we wanted to do, if we could, was to have a debate on at least one or two of the items in the Schedule. They are not all of the same calibre and some of the enactments referred to are different from others.
It would have been our desire to deal with one or two of them in particular. I would ask whether, even at this eleventh hour, it is not possible for us in some way, with your permission, Sir, to move at least one of the Amendments to the Schedule in order—this being Private Members' day—to discuss in all amity the enactments which are there sought to be amended.
I can only say that that process should really have been done in Committee. This is the Report stage of the Bill, and the purpose of the Report stage is quite different from that of the Committee stage. I have to deal with the matter as it is now before me, and while I have considered what has been said, I am bound to say that I think my Ruling is right.
May I most respectfully ask what the consequences would be if the Amendment which you, Mr. Speaker, have selected were accepted by the sponsors of the Bill or carried on a Division, because then, in my submission, certain consequential Amendments to the Schedule would be necessary; and without those the Schedule would be quite unintelligible and the Bill would, on the face of it, be an absurdity. In those circumstances, I should be grateful for your guidance.
It is not my responsibility to put down consequential Amendments. Hon. and right hon. Members who have put down the Amendments which we are now discussing, or should be discussing—I hope we shall do so soon—should have put down their own consequential Amendments to carry out their purpose. If their consequential purpose involves the deletion of the Schedule, their own Amendments do not make sense because they refer to the Schedule in other terms. I hope that the House will proceed on that assumption and will proceed with the Amendments which we are considering.
Of course, I immediately bow to your Ruling. Mr. Speaker, hut perhaps I might just be allowed to say that as long as that precedent obtains we are placed in the difficulty that we do not know what Amendments you, in your wisdom, will select or reject. This is a matter of general application. If in putting down Amendments to the Schedule, we tabled only one or two we might choose Amendments which would not commend themselves to you, and the only course seemed to us to be to put down those that we have done and for you to decide which you would choose. With great respect, I should have thought that the course to be followed would have been to consider them separately and not to regard them as a whole and what their effect as a whole would be if they went carried.
The hon. and learned Gentleman should have thought of that before. It seems to me that the Amendment which I have called him to move, which is introductory to the two following Amendments, raises a point which is really independent of this discussion on the Schedule. It does modify the burden of proof in a way different from that contained in the Bill. I hope that the hon. and learned Member will proceed with that point; it is quite a substantial point.
I respectfully agree, Mr. Speaker. I was merely indicating the difficulty of anybody who puts down a series of Amendments, whereas if he had put down particular Amendments he might have chosen ones which might not have commended themselves to you.
In this Amendment—[An HON. MEMBER: "Hear, hear."] I am glad to have the support of an hon. Member opposite for that opening part of my observations. We are here faced with a difficulty of Principle which is of general application; it applies to all the statutes. I should like first to bring out perfectly clearly what is the effect and purpose of this Amendment, and how it would operate.
The various provisions which it is proposed to amend, and which are referred to in the Schedule to the Bill, are all in the same form. I will read the one which appears in the Borrowing (Control and Guarantees) Act, which is as follows:
Where an offence under this Act has been committed by a body corporate (other than a local authority), every person who at the time of the commission of the offence was a director, general manager, secretary or other similar officer of the body corporate, or was purporting to act in any such capacity, shall be deemed to be guilty of that offence, unless he proves that the offence was committed without his consent or connivance and that he exercised all such diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions in that capacity and to all the circumstances.
That provision puts the burden of proof on a director if two requirements are satisfied: first, if the company is guilty of the offence, and second, if the director was a director of the company at the time when the offence was committed. So we have those two requirements clearly laid down. In other words, we are not dealing here with the case of a man who is presumed to be guilty unless
he is proved innocent. I hope that we disposed of that point in Committee; I think that in the Committee we were all agreed on that.
We are merely concerned with the question of the moving of the burden of proof. The burden of proof of course moves in the course of any case—in the course of a civil case or a criminal case. All that we are here concerned with is that shifting of the burden of proof in the course of the hearing of the case. All this enactment does is to provide by Statute instead of by common law or by the movement of the evidence in the course of the case, that when those two requirements are fulfilled, namely, that the company is guilty and that the director was a director of the company at the time the offence was committed, then the burden of proof is on the director to establish his innocence.
It does not mean that he is presumed guilty until he has proved his innocence. The Crown first has to establish the guilt of the company and that the director was a director of the company when the offence was committed. Then there is put on him the burden of having to show that the offence was committed without his consent or connivance; that is the first point. Consent and connivance, of course, involve an active participation of one kind or another. Secondly, it has to establish that he
exercised all such diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions in that capacity and to all the circumstances.
This Amendment proposes that, whereas those two former requirements should remain within the enactment, then, when the burden of proof is shifted, he must prove that the offence was committed without his consent, or connivance; but it provides that he need not prove that he exercised
all such diligence to prevent the commission of the offence as he ought to have exercised.…
In other words, it leaves on him the burden of proving that there was no active participation on his part but relieves him of the burden which is now placed upon him by the enactment to show that he
exercised all such diligence to prevent the commission of the offence…
There seems to me to be a difference of principle there—a clear distinction between consent and connivance on the one hand and the exercising of "all such diligence" on the other. Hon. Members may well come to the conclusion that whereas the burden of proof should remain on him to show that he had no active participation, it should not lie on him to show that he exercised diligence, and so on. That is the issue which is raised by this Amendment. In addition, it provides for the elimination from the Bill of the provision in Clause 1, from lines 10 to 22.
I have indicated what difference the Amendment makes to the enactments as they now stand. I now come to the difference which the Amendment would make to Clause 1 of this particular Bill. The Amendments provides that in each of the scheduled provisions there shall be omitted the words which I have indicated with regard to diligence in the enactments as they now stand; but it also provides that there shall be eliminated from the Clause the words:
and it is proved that the offence was committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, general manager, secretary or other similar officer of the body corporate or any person purporting to act in any such capacity, he as well as the body corporate shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
The Clause in the Bill provides that the burden of proof shall lie on the prosecution to show that the offence was committed with the director's consent or connivance, or is attributable to any neglect on the part of any director, general manager, and so on. We propose that the provision which puts the burden of proof upon the officer of the body corporate in those three cases—consent, connivance and neglect—should be taken out of the Clause.
I should like to mention one point of detail—which is not unimportant—in relation to Clause 1 as it now stands, and in regard to the words that we propose should be left out. The Clause refers to the offence being committed "with the consent or connivance of." I can understand the word "consent" and also the word "connivance." They have perfectly clear meanings, about which
nobody could have any doubt. The Clause goes on to say:
…or is attributable to any neglect on the part of, any director, general manager, secretary or other similar officer.
I must say at once—and I hope that this point will be dealt with—that I do not understand what precisely is meant by the word "neglect." I am sure that the hon. Gentlemen who are sponsoring this Bill have had similar difficulty, because in their Bill as originally drafted—which, as I indicated before, I prefer to the more professional form of drafting which we have at the moment because I think it is much clearer for the layman to understand, though I appreciate the legal difficulties in which it would land us and which the Solicitor-General indicated on the last occasion—the word "negligence" appeared instead of "neglect."
Negligence is a term of art. It has a legal meaning. One knows where one is with that word. The hon. Member for Buckinghamshire, South (Mr. R. Bell), in a very valuable speech in Committee—although it was not a speech which commended itself to me as far as its conclusions were concerned—indicated that "neglect" was a wider term than "negligence," In other words, he suggested that it placed a greater obligation upon the director than the word "negligence." But what does "neglect mean, if it means more than negligence? Negligence is a term of art which has a legal signification which has been interpreted and is known by the courts. What does "neglect" mean if it is intended to mean more than negligence?
If I may read the relevant words of the Clause once more, they are:
or is attributable to any neglect on the part of any director, general manager, secretary or other similar officer.
Neglect of what duty? Negligence imports a duty. One can understand that there is a duty to the company. Criminal negligence is another matter. It is a breach of the duty which is owed to the public at large—to the country and to the State—but what is this?
Let us take a case which may arise under the Borrowing (Control and Guarantees) Act, where more than £10,000 is borrowed without proper authority, in contravention of the Regula- tions passed in accordance with that Act. Supposing that is done and that the director is not present at the board meeting at which the decision to borrow is made. Is that neglect on his part? If so, neglect of what? Is it neglect of his duty to the company? If so, what is his duty to the company? Is it his duty to attend every board meeting? Is it his duty to attend a particular board meeting at which an important matter is to be raised? Is it neglect if he gets a specific notice that this particular matter of borrowing more than £10,000 is to be discussed at the board meeting, but he does not turn up? Is it neglect if he does not turn up although he has not had notice from the company but nevertheless knows about it?
Where are we here? We are launching on to a criminal obligation and liability in the vaguest terms, without indicating precisely what is that criminal liability. If the hon. Gentlemen who are sponsoring this Bill say that it is not the neglect of the duty to the company, and that we have to read these words together and say that the offence is attributable to any neglect on the part of a director, let us again consider the circumstances. What is the neglect to which an offence can be attributed? Does it mean that it is because of the director's neglect that the offence has arisen? If so, it raises the question—the director's neglect of what? We come back to the original difficulty of his duty to the company, which I have just mentioned.
Let me refer again to my last illustration which, I suggest, shows how ludicrous is this word. Supposing that a company decides at a board meeting to borrow more than £10,000 under the Borrowing (Control and Guarantees) Act, with the result that the company commits an offence under the Act. It is carried by one vote. A couple of directors do not attend the meeting. If they had been there, there would have been a majority against this being done. They neglect—or is "neglect" the wrong word?—to turn up at the meeting, and because they neglect to do so, the offence is committed. In those circumstances, is that offence attributable to the neglect of the directors, or is it not? I do not know.
We are using here, in a criminal Bill, a term which is quite obviously open to a great deal of discussion and debate, which is not a term of art, which is a loose term and which, in my view, will lead to very considerable difficulties. I am not cavilling at the attitude of the hon. Member for Altrincham and Sale (Mr. Erroll), who is mainly responsible for the Bill, because I recognise that in the original drafting he had the word "negligence" and not the word "neglect" and I also appreciate his motive for introducing "neglect," as explained by the hon. Member for Buckinghamshire, South in place of "negligence," because he thought there should be a heavier onus on the director than is included in the word "negligence."
We had a little difficulty over the word in Committee, and I hope we shall have a little clarification, as no doubt we shall, of what the word means. At the moment I am in considerable difficulty about it. On the other hand, I feel that there must be some explantaion of why the hon. Gentleman introduced the word into the Bill, for he would not have done so without some good reason, but I should like to know exactly what is meant by the words "attributable to any neglect" and how they will work in practice, for instance, in the cases which I have already cited.
That is the objection to the Clause as it stands. I return to my proposal to eliminate part of Clause 1 and to eliminate the wording in the original Statute which I indicated,
…all such diligence to prevent the commission of the offence…
In the original statute, obviously a considerable amount of care was taken to deal with words which correspond with the word "neglect" in the Clause. The words in the statute corresponding to "neglect" in the Clause are the words I now propose to leave out.
…all such diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions in that capacity and all the circumstances.
I realise that this Amendment is open to serious criticism, and certainly to serious criticism from hon. Members on my own side of the House, because when these provisions were inserted in the Statute we felt that it should not be possible for a director to say, "I escape liability, I am not liable, although I am undertaking such duties that, if I had performed them properly, the offence
would not have been committed." Obviously this Amendment is open to attack on those lines.
In other words, it can be said that where we have a "guinea pig" director, he should not be permitted to escape liability simply because he draws the money and does not perform the functions. I know there is a great deal of feeling amongst some hon. Members opposite that that should not obtain, but nevertheless there is a distinction when we come to deal with a criminal offence. We are dealing here with a criminal offence, and it may well be said that in the case of a "guinea pig" director his neglect of his duty is a neglect of his duty to the company, and that that is the company's look out.
Although his position is not one with which, I hope, any hon. Member would have sympathy, nevertheless it may well be said that what he is neglecting is his duty to the company, and that that is a different matter from imposing upon him a penalty because of his neglect of his duty—and again I am coming back to the word "neglect"—where it means neglect of his duty to the country or criminal neglect. At any rate, there is a difference where his fault, if I may use a neutral word, is not of actively conniving or consenting to an offence being committed but is one of failure to prevent the commission of the offence.
It is difficult to draw the distinction between the neglect with which we are now dealing—criminal negligence—and neglect which does not mean criminal negligence but is neglect of duty to the company; between criminal neglect of one kind or another and neglect of his duties to the company. A good deal depends upon the meaning of the word "neglect," but I should have thought there was a distinction here, almost I must confess at once that I can see the difficulty.
The argument about the "guinea pig" director, that because of his neglect of his duty to the company he should therefore be made criminally liable, which is an entirely different category of liability, is a difficult argument. I do not know what the sponsors of the Bill feel about this or how far they would be prepared to accept the Amendment which we have put down.
We suggest that, in the cafe of consent or connivance, the burden of proof should remain on the director—and here I am leaving "negligence" and coming to "consent or connivance." In the case of "consent or connivance" the burden should remain on the director as proposed by these enactments which it is proposed to repeal. We are dealing with the burden of proof; we are not dealing with presuming guilt or presuming innocence, and what we have in each of these cases is a company involved, a body corporate of one kind or another, with a director or an officer of the company; and it is said that where the company is guilty and the officer was an officer of the company, and the director was a director at the time the offence was committed, the burden of proof shall lie on him.
Let us consider that. The company is a legal entity and cannot operate or act except by directors coming to conclusions. Although it is at law a person, it cannot itself act at all, except through human beings operating. What we have here is a company which is guilty—a person if hon. Members prefer that—but whose guilt cannot be brought about by itself at all, because a company without human operation is nothing but a mere legal fiction.
The guilt is brought about by the person who controls the company, the person who runs the company—the officer, the director, of the company; and all that is proposed here is, not that that director himself be liable if the company is liable, but that the director who runs the company, whose job it is to run the company—and that company cannot be run without a director—should in those circumstances have the onus placed upon him of showing that he did not consent or connive.
In other words, I can put it in a very simple proposition. A cannot act without B operating. If B operates, the burden should lie on B to say that in a particular case he did not, in fact, operate. One would have thought that in circumstances of that kind, where a company is guilty and where the director was the director when the offence was committed, it would be a most reasonable provision in this case that the director should go into the box and say he did not himself consent or connive at it.
I fail to understand at the moment what the strength of the feeling about this is. All we are providing here is that the burden of proof should be made quite clear by Statute, that in the case I have given the burden of proof should not in fact shift to—if I may use a legal term "the man on the top of the Clapham omnibus." Where the burden of proof shifts in this case, it is up to the director, in those circumstances, to say he did not consent or connive.
The hon. Member for Buckinghamshire, South, in his speech in Committee, referred to the receiving of stolen goods. It was a very valuable and, I thought, illuminating illustration, and he recognised, of course, as we all recognise, that the burden of proof does shift even in criminal law, in other courts than the Chancery courts, and that in the case of stolen goods it is up to the receiver of the stolen goods, when he is charged with receiving the goods, when it is established that the goods have been stolen and that they are in the possession or were in the possession of the person charged, to say that he was not aware that the goods were stolen when he received them.
We all agree that in that case it is reasonable that the burden of proof should be on the person charged with receiving the stolen goods. And why? Because he is the person who can very simply, without any injustice at all to himself, go into the box and establish that he did not in fact know that the goods were stolen at the time. My hon. and learned Friend the Member for Brigg (Mr. E. L. Mallalieu) emphasised this point in Committee, and said, that of course it was a matter which was locked up in the mind of the director, as it was locked up in the mind of the receiver of stolen goods. The Solicitor-General took exception to the phrase about "locking up in the mind." I was not quite sure whether he was referring to the mind of my hon. and learned Friend the Member for Brigg or to the mind of the director; but, of course, it is reasonable that the burden of proof should shift in that case.
What is the correct analogy here? The correct analogy is that the director himself knows whether he consented or connived. He is the person whose job it is to carry on, to do the business, to be the person who runs the company. He knows perfectly well whether in a particular instance he consented or connived. If it is his job to do that particular thing, then surely there is no difficulty at all and there is no injustice at all in saying that he should go into the box in those circumstances and say, "No, I did not consent or connive."
It would be exceedingly difficult to know, or it might be a very difficult thing to prove, that he consented or connived in a particular case; and when his company has committed an offence, and he is the director whose job it is to see the company does not commit an offence, why, in that case, should he not go into the box and say, "At any rate, in this particular case, although it is my job to see the company does not commit an offence, nevertheless in this particular case I did not consent and I did not connive"? I should think that would be the simplest thing in the world, and I should have thought that the burden in that case should properly have lain upon him.
Therefore, in this Amendment we propose these two things as contrasted with the Clause as it now stands: first, that the burden of proof in the case of consent or connivance should lie upon the director once the two preliminary points are proved of the company's guilt and that he was the director of the company at the time; but that, on the other hand, in contrast with the statutes as they now exist, the burden should not lie on him to show that he acted with due diligence. I hope that in these circumstances it will be possible for the sponsors of the Bill to accept this Amendment.
I beg to second the Amendment.
I think that when one has to consider this matter it is exceedingly important to look at the history of the legislation. The Clause which by this Bill it is now proposed to put into a number of Acts passed since the war was, broadly speaking—and I emphasise the word "broadly"—quite a common Clause before the war.
So far as I have been able to trace the matter, what happened was this, that at some period shortly before the beginning of the last war a Clause more or less in the form of the post-war Clause—if I may use that expression— began to be introduced. I do not think that even "begin" is quite accurate because it had occurred occasionally before then; but it did become quite common, and when this post-war Clause, as I have called it for convenience, came before the House for discussion my right hon. and learned Friend the Member for St. Helens (Sir H. Shawcross), who was then the Attorney-General, said that he had found 10 instances in which the Clause had been used before, often under Tory Governments. That is the Clause to which objection is taken by this Bill.
If one looks at Volume 422 of the OFFICIAL REPORT and the discussion of this Clause on the Report stage of the Coal Industry Nationalisation Bill, one finds that at first, I think I am right in saying, it had had no discussion at all; and in the case of the one Bill that came before the Coal Industry Nationalisation Bill, the Borrowing (Control and Guarantees) Bill, 1946, apparently in Committee, so far as my researches go, there had again been no discussion and no point raised about it; and I went carefully through the Committee proceedings. Of course, the Coal Industry Nationalisation Bill did provoke a many-sided controversy at the time, much of which, I think, is now generally thought to have been rather pointless, but this particular Clause does not seem to have aroused anybody's feelings at all, not even those of any of the hon. Members who are concerned with altering it.
But when matters came to the Report stage the hon. Gentleman the Member for Altrincham and Sale (Mr. Erroll), whose Bill this is, did indeed get moving, and he moved an Amendment to the general effect of what he proposes to do now. That Amendment at the time was rejected. I want to quote a word or two of what the then Attorney-General said. He said:
We have consulted those who have had a great deal of experience of prosecutions in these matters during the war and for long years before it. This experience has shown that, while under the existing law there is the greatest difficulty in securing convictions of Directors and Officers whom there is every reason to believe have committed offences when those Directors are compelled to disclose the facts within their knowledge no doubt is left of their guilt. We have to consider whether it is right to incur the certainty that a large number of Directors and Officers of companies will escape liability for offences committed by their companies with their full knowledge and
consent and concurrence. We have decided that it would not be right to accept that situation."—[OFFICIAL REPORT, 15th May, 1946; Vol. 422, c. 2013.]
The first point that occurs to me is this. Those who hold the office of a Law Officer of the Crown have always been regarded as our advisers in this House on matters of law, and to have a peculiar and impartial responsibility. It appears that at that time the advice given to the right hon. and learned Gentleman who then held the office of Attorney-General was that there had been great difficulty in securing convictions, and it is quite clear that that was what he had in mind when supporting the post-war Clause which we are now trying to repeal.
This Bill has had very scant consideration. It was not discussed on Second Reading at all, and it had, if I may say so, a somewhat cursory discussion in Committee. But the Committee did have at any rate the invaluable aid of the hon. and learned Solicitor-General. His office, of course, and that of his hon. and learned Friend the Attorney-General, is the same office, with the same experience, as it was when the Attorney-General of the day gave this advice and these statements to the House, to which I have just referred, and I should very much like to know what consultation there has been in this matter, and with what result.
I feel certain that the hon. and learned Gentleman will have consulted those who have had a great deal of experience of prosecutions in these matters during the war, and for long years before it; and we have had the further advantage of being able to add a few years after it. What I should like to know is: Did they say to him the same as they or their predecessors in office said to the Attorney-General of the day when this matter was being considered in connection with the Coal Industry (Nationalisation) Act?
This seems to me to be a matter of the very greatest importance. The general conclusion of the Attorney-General at that time was:
The unhappy fact is that sometimes people will use companies as a cloak, or shield, behind which they commit offences with impunity."— [OFFICIAL REPORT, 15th May, 1946; Vol. 422, c. 2013.]
All these are matters of fact, of practice and of law upon which the Attorney-General and his office have a quite unrivalled experience and a grave responsibility to state the facts correctly when we are considering matters of this sort. I feel certain that my right hon. and learned Friend who was then Attorney-General did state correctly what advice and information he had been given.
That is the practical position, as I see it, as it was in 1946. Since then perhaps there has been some change in the matter, and I just wonder what the change can have been. As I have already pointed out, the Motion then came from the same source, the hon. Member for Altrincham and Sale, it was in the same terms, and now it is brought forward again. One does not want to introduce party politics into this kind of question, but what happened when it was introduced on that occasion was that, after the speech of the Attorney-General of the day, Mr. Quintin Hogg, as he then was, who was then the Member for Oxford, seems to have more or less accepted what was said; and your predecessor, Mr. Speaker, said he thought that we might now come to a decision.
There had not been a very long argument and there was no Division on the matter, so one presumes that everybody at that time had, I do not say been convinced, but at least accepted the position that the evils of which the Attorney-General spoke and the precedents in previous legislation to which he referred were a good reason for not pressing with regard to that Act exactly what is now proposed on this Bill. I speak subject to correction, but I believe that that short discussion represented the general attitude taken by the House on this matter, not only on that Act but on a number of others.
I turn from that to the post-war history of the matter. We are called upon to alter a similar provision in no fewer than 11 statutes, if my arithmetic is right; something that has gone through the House again and again. In those circumstances, I think we are entitled to say to those responsible for this: "What is the mischief? What has happened? In 1946 you accepted, without pressing the matter to a Division, what was then proposed. but you now bring forward—no doubt for some good reason, although I do not know what it is—what you then proposed and then abandoned."
Well, there has been a change of Government, but I feel certain that a little thing like that would not cause the hon. Member for Altrincham and Sale to put the criminal liability of the directors of companies in an entirely different position. He would be the last person to say that it depends on which party is in power where the burden of proof in a matter of this sort shall rest. That, I feel sure, he will agree is something which should be considered on the merits, and having regard to the legislation in question and to what has happened under existing legislation.
I do not want to provoke him or any other hon. Member opposite at this early stage. This, after all, is one of those nice peaceful Fridays when we can discuss these matters in calm and quiet. But I should like to know what it is that has so suddenly convinced hon. Members opposite to reproduce that which they abandoned in 1946; that that which—and I think I am not putting it too high —they practically accepted in one Act after another should now suddenly be remedied? What abuse is there has made this particular point of such sudden, immediate and vital importance?
Imagine numbers of directors shut up in rooms, sobbing from a sense of injustice year after year since 1946, waiting for the hon. Member for Altrincham and Sale to come, like some fairy liberator, to free them from this cruel injustice. It may all have happened somewhere or other in the recesses of some Government corporation or other place, but it has never got out into the open, and I feel that only the hon. Member for Altrincham and Sale can tell us about these hidden miseries.
The Clause itself—and I must refer to it because, after all, as my right hon. and learned Friend has pointed out, the effect of this Amendment is double: it both omits the words that begin line 10 and substitute others—as I said just now, appears, according to the researches of the Attorney-General of the day, in at least 10 Acts, many of them attributable to Tory Governments, and I feel certain that the learned Solicitor-General will confirm what I am about to say, that not all these Acts were matters of urgent war-time legislation.
Looking about just to see where Governments, not Labour Governments but Tory Governments, introduced this kind of thing, I found one particular instance. This was in the Building Societies Act of August, 1939, and without going into detail, which would hardly be appropriate at the moment, I can say this to the House: that the subject-matter was the—
I am reminded by my right hon. Friend that it is Chapter 55, Section 15 (1) and (2), but I do not want to go into them in detail. This is merely a question of the valuation of securities of a building society. No doubt, it is a matter which is just as important in peace as in war, but it can hardly be said to be one of the more immediate objects of war-time legislation. I do not think that the war had started at that time. Here we find that,
…the society and also every officer thereof bound by the rules of the society to fulfil the duty in relation to which the default has occurred, and,"—
this is pretty stiff—
if there is no such officer, then every director or member of the committee of management of the society, unless it appears that he was ignorant of or attempted to prevent the default, shall be guilty of an offence…
The ruthless legislators of those days did not stop there. They went on to deal with the unincorporated societies. Section 15 (2) states,
if there is no such officer, every director or member of the committee of management of the society …
How is he going to get off? He gets off if at least it appears he was ignorant or was attempting to prevent a default. I suggest that goes as far and, indeed, somewhat further than in the Acts of 1946 and subsequently.
I would like to take that passage in the Building Societies Act, 1939, as a good illustration of what my hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas) said just now—that, after all, there is the highest judicial authority for the remarkable dictum that a limited company has no body to be kicked and no soul to be damned. I would not have ventured to use that language if Lord James of Hereford had not used it first; so it must be all right.
We start with this proposition that this bodiless and soulless object has committed an offence. It is perfectly obvious that someone or another must be responsible for it having committed an offence, and it does not require a very deep investigation into the way in which a limited company is run to come to the ordinary conclusion—I am not talking about the law—that the man in the street would draw if a company has done something wrong, that the directors are responsible. Broadly speaking, I submit that is the way the law works.
I have been myself a director for very many years of one company and another, and it shocks me profundly if it is suggested that I should not be prima facie responsible for what the company has done. What happens if we alter the position in which a company has committed an offence and yet no one is personally liable? It depends on what the offence is. As to that, I bow respectfully to your Ruling, Mr. Speaker, and I am, unfortunately, unable to look at that particular point, as I think it ought to be looked at, with regard to the particular cases which it is sought to amend. We must just take it generally.
I realise that there may occasionally be offences of so technical a character that the law is driven to the absurdity of convicting for an offence something which is incapable of having a body or soul—incapable of being kicked or damned. The law since the day of Charles Dickens has been from time to time an ass, but it is our business to prevent it from being an ass more often than it must; and it is an ass if a corporation commits an offence and no person can be held responsible for it. That, I suggest, is the whole proposition.
Until the learned Solicitor-General contradicts me, I am going to assume that the state of affairs which the Attorney-General found in 1946 is still to be found by inquiry in his office. That is to say that, broadly speaking, there have been quite a number of cases where it was felt that the existing provisions unduly protected those who ought to be convicted. I am also going to assume there has been no particular or outstanding case in which it is felt that the 1946 provisions resulted in hardship or unfairness to directors. I feel certain that the Solicitor-General would have called the attention of the Committee and would now call the attention of the House, to any case of that sort.
In those circumstances, what exactly are we doing? It may be said that in a highly technical sense we are shifting the burden of proof. So we are, partially and in a technical sense, but, as has been pointed out already, the burden of proof is not something which sits there from the beginning of the case to the end. It is shifted from time to time in the course of proceedings. The idea that it always rests on one party or another is completely false; it moves according to the evidence given. I am suggesting that it is good sense and that it ought to be good law to regard it as prima facie evidence against directors and other similar people that the company itself has committed an offence. That is really what was done by such sections as those to which I have referred in the 1939 and 1946 Acts.
There is one very significant addition, and I want some explanation of it from those who are responsible for the Bill. Among the words which it is sought to put into the Acts and which it is sought to omit by the Amendment there is a very curious addition. The Clause from line 10 to line 17 is in a form which was very common indeed but only, as I said before, broadly speaking in that form. If one looks at the broadly similar Clause which the hon. Member for Altrincham and Sale moved in the Coal Industry Nationalisation Act one finds that:
Where an offence"—
and so on:
… is proved to have been committed with the consent or connivance"—
One sees how closely this follows the present drafting—
of any director or officer of the body corporate"—
This is the case of the Coal Act referred to in the proviso—
or any person who was purporting to act in any such capacity …
That was moved then and is moved now, but I do not find it in all the Acts in which a similar Section occurs. I want to know what it means. I quite understand that it refers in the case of other Acts not merely to "director or officer"—there is some considerable difficulty there with which I will deal in a minute—but also to a director, general manager, secretary, or other similar officer of the body corporate or any person purporting to act in any such capacity.
I quite realise that as regards the director there may be questions as to whether he has been validly appointed and whether he possesses the necessary qualification and so on, and "a person purporting to act as a director" is, I think, understandable. I feel sure that the Solicitor-General will inform us whether it is really necessary. The reason why I have some doubt as to whether it is necessary is this. It seems to me that a man who purports to act as a director is, in most cases at any rate, a de facto director and might be covered without the addition of any such words. However, I feel certain that at some stage or other of the proceedings the Solicitor-General will enlighten us on that point.
Then there is the general manager. Who is a person who purports to act as a general manager but is not a general manager? I do not quite know what is intended here. There is also the secretary and the "other similar officer." Who on earth is a person who purports to act as an officer of a body corporate similar to a director, general manager, or secretary? I feel certain that upon this matter we shall have both the guidance of the Solicitor-General and a clear indication from those responsible for the Bill as to exactly what they mean. I am sure they will bear in mind that this is, after all, a question of criminal liability and that it is exceedingly necessary to be perfectly clear with whom one is dealing in these provisions, and my own feeling would be that, on that account alone, apart from the more substantial question, I should have been very reluctant to accept the Clause.
I turn now from that to the Clause which it is proposed to substitute. One cannot, of course, at this stage when we are merely on one Amendment go fully into the objections to the Clause in the original Bill so far as they depend on certain Acts, but I think that for my present purposes what I have said is probably a sufficient summary of my views on that aspect of the matter, although not on the matter as a whole.
One has to consider what is suggested, and what is suggested is a compromise. I thought it was very well described by my right hon. and learned Friend when he drew a distinction between the passive and active precautions. I take Section 121 (3) of the Transport Act just to illustrate what is happening. It says:
…a director, general manager, secretary or other similar officer of the body corporate"—
I very much regret to see the presence of these words—
or was purporting to act in any such capacity"—
I feel it would have been very much better to have left them out for the reasons which I have just given—
shall be deemed to be guilty … unless he proves that the offence was committed without his consent or connivance"—
And then follow the words which it is proposed in page 1, line 10, should be taken out of the original Act.
Surely it is not putting very much on a director in practice. All he has to prove is that he neither consented nor connived. There is no question of his diligence, idleness or efficiency; it is purely a question of consent or connivance. Speaking for myself, I do not like the "similar capacity" part of the provision and would have been content with the existing legislation on the matter, but since it is sought to make a very sweeping change I suggest to those responsible for the Bill that they really have gone too far in what they are suggesting should be done and that they might accept the Amendment as a reasonable compromise. After all, there is no real evidence of mischief. I have said that already, and I do not want to say it again. I can see some sort of theoretical objection that this Clause may go too far. I do not share it, but I understand it.
On the other hand, I cannot see, having regard to the character and the composition of a limited company and its directors and officers, how the compromise could possibly go far or inflict any hardship. There being no evidence of hardship inflicted under the more stringent provision that we are willing by this Amendment to modify to some extent, I suggest to those who are responsible for the Bill that they ought to have regard to the history of the matter and to the feeling of the House on previous occasions, and that they ought to accept it as a reasonable provision and leave it at that.
We have had a somewhat prolonged but most interesting discussion on this Bill, and before dealing specifically with the Amendment as described and proposed by the hon. and learned Gentleman the Member for Leicester, North-East (Sir L. Ungoed-Thomas), I should like to deal with one point which the hon. and learned Gentleman the Member for Kettering (Mr. Mitchison) raised, since it may help hon. Members opposite to appreciate that there is no question of a change of Government leading to a change of burden of proof as was suggested. It was a change of heart rather than a change of Government, because the principal changes were made by the Labour Government during 1950. The particular Clause, which had appeared in earlier Acts and which this Bill now seeks to amend, was deleted in 1950 during the Committee stage of those Bills and a Clause similar to the one I am now proposing introduced.
If only for the record, would the hon. Member let the House know what Acts he is now referring to and would he deal in greater detail with the reasons why the change was made?
That was referred to during the Committee stage. One was the White Fish Industry Act, another was the Rivers (Prevention of Pollution) Act and the third was the Rag Flock and Oher Filling Materials Bill, all of which were 1950 Measures. I should like to put it this way to hon. Members opposite. All I am seeking to do with this Billis to continue the evolutionary outlook developed in later stages of the life of the Labour Government.
I gather that originally the hon. Member was saying that he was merely doing here what had been done in those three Bills. Now I gather he is taking it a stage further. Would he let the House know what the form was in the particular Bills which he has cited as a parallel to this one so that we can see precisely what is the difference?
Surely the House is entitled to this information. After all, the hon. Member and his friends are producing this Bill, and before we know whether we are for or against it we want the fullest details on it. The hon. Member says that he does not want to waste time. We have got to 4 o'clock and there is no hurry whatever.
I understand that my hon. and learned Friend the Solicitor-General will refer to that particular point. I am dealing largely with the principle.
I agree that there may be certain differences in detail dealing with the principle of the shifting of the burden of proof, but the fact that there has been a certain evolution in the outlook on the matter is something we must remember. In 1946, 1947 and, indeed, before the war certain views were held, and gradually and in the light of experience these views changed. In 1950 the principle was altered by general agreement in this House without a Division occurring at any stage, and also in another place.
All this Bill does is to extend the operation of that principle, subject to one or two minor variations to certain earlier Acts where the burden of proof ought to be altered to come into line more with what is the current view and current thought on the matter.
I want now to turn to the Amendment which is the subject of this discussion. I am sorry it could not have been tabled a few days earlier as it is a most interesting and worthwhile Amendment to consider, but, of course, one cannot give it the time and merit it deserves in the few minutes before 11 o'clock when one sees it for the first time. As I see it and understand it from what was said by the hon. and learned Gentleman the Member for Leicester. North-East, who proposed it, and the hon. and learned Gentleman the Member for Kettering, who seconded it, what they are really saying is that consent and connivance must stay but diligence may go: that we must maintain the burden of proof as it already is.
I must say that I regard that as a helpful contribution to the discussion of the matter, and had there been more time it might have been possible for me to go into the exact pros and cons with greater care. As I only got this Amendment at the last moment, I do not feel that it would be practicable for me to accept it as it alters the concept of the Bill, even though it goes roughly one-third of the way towards meeting my point.
The hon. Gentleman has informed us that he was rather taken by surprise by these Amendments, and that had he had longer time to consider them possibly he might have accepted them. That is a very interesting statement, and I was wondering, Mr. Speaker, whether there is any machinery by which we can adjourn this debate in order that the hon. Gentleman may consider these Amendments and come back to this point at a later stage or even at a later date.
I could not at this stage accept any Motion for the Adjournment of the debate. It is a point that frequently turns up when short notice is given of an Amendment. It is difficult to marshal the arguments as concisely as can be done when longer notice is given.
And, of course, I need hardly remind the right hon. Gentleman the Member for Colne Valley (Mr. Glenvil Hall) that it might be possible to secure an Amendment in another place. If hon. Members were prepared to facilitate the passage of this Bill today, then we would both have the Bill through this House and be automatically providing time for a fuller consideration elsewhere of this interesting Amendment and its implications. Perhaps we could have a change made in another place if it were ultimately considered desirable.
I do not think I need answer that. The right hon. Member knows full well what the answer is. If hon. Gentlemen opposite are prepared to facilitate the passage of the Bill, I will consider the Amendment carefully and will see whether some change is acceptable. I could not give any guarantee, of course. Some of the most interesting points about this Clause have originated in another place, which has followed the evolution of this matter very carefully.
I want to turn particularly to the point referred to by the proposer of the Amendment, namely the use of the word "neglect" as distinct from that of the word "negligence." I understand that the word "negligence" applies to the neglect of a legal duty whereas the word "neglect" refers to a neglect or falling away from a standard of conduct, although not necessarily legally defined. Therefore, the use of the word "neglect" in this particular phrase implies and requires a higher standard, a more exacting standard, than the word "negligence" would require.
Let me take the two examples to which the proposer referred. First, is the failure to attend a board meeting. That question has to be decided on its merits. It depends upon the standard of conduct of the particular board and of the standards of the industry of which the company is a member.
Does the hon. Member really mean that if the standards of the board are low the particular director escapes liability under his proposal, whereas if the standards of the board are high the director becomes liable because, in the latter case, he is negligent and in the former case he is not?
I am referring to standards of attendance. Some board meetings are frequent, and attendance is 100 per cent. Other boards hold a weekly meeting, and perhaps a high standard of attendance is not required or could be fully expected. Failure to attend a board meeting must be judged according to the standards of attendance accepted in the particular company, and indeed in the particular industry. The habit in some industries is to have more frequent board meetings than in other industries.
The other point was the case of the important decision taken in the absence of a director, and whether "neglect" is a better word in that case than "negligence." It all depends upon the system of the company and upon what is the usual way in which important decisions are taken. It is always difficult to reply in detail to a hypothetical example, but in the case suggested of the loan, that item should appear on the agenda. A director unable to attend when such an important matter is to be discussed should indicate in advance to the chairman or secretary either his agreement with it or, alternatively, that he hoped that no final decision would be reached without his being informed of the views of his fellow-directors.
If the matter came up at a meeting and there was no time to inform the absent director it is obvious that the chairman or secretary should say: "This is a matter of such importance that the absent director should be notified in order to have an opportunity of giving his vote or registering his opinion." If that were not done, the neglect might not be on the part of the absent director but on the part of the chairman, secretary or some other member of the company who was present. That is why I suggest that the word "neglect" is better in this context than the word "negligence."
I am most interested in the observations of the hon. Member. During the Committee stage he went a little further than he is going now. It may be that I have got up a little too soon and that he might have intended to deal in a subsequent part of his observations with the point I am raising. I understand he is suggesting the word "neglect" instead of "negligence," not because it is a better word but because it is more precise in its effect. Would he address himself to that point and indicate in which particular type of case he considers that the word "neglect" is more precise than the word "negligence"?
I have in mind that "neglect" is a more embracing word which would not make it possible for a person to slip out of a charge so easily as if the word "negligence" were used.
The hon. Member is now implying an entirely different argument from the one which he introduced in Committee. I was not a Member of the Committee, but the hon. Member has invited us to read the records of the Committee meetings. I understood the hon. Member to say in Committee that it was a matter of re-drafting to get greater precision. I would be greatly influenced by an argument which showed that greater precision was achieved in a criminal matter of this sort. Would he indicate what greater precision he has in mind and what are the cases upon which he relies?
The word "neglect" has an aura of precision which is fully understood by those concerned.
I have only two further remarks, and they deal with the hypothetical gentleman on the top of the Clapham bus. If he had those two points put to him I think he would agree with what I am saying. The first point is that, with the burden of proof as it is at present, the more innocent a man is the more difficult it is for him to prove his innocence. Because he does not know what is going on he is not able to say very much about it. Another peculiar difficulty is that some of the offences for which a company may be guilty are not offences of commission but offences of omission. It is particularly difficult to be diligent about seeing that nothing is omitted from being done which ought to be done, such as making a return. It becomes even more difficult to prove innocence of a sin of omission. For that further reason, I hope that the House will see its way to accept the Amendment and to allow us to proceed with the Bill.
May I ask one question? Let us take this innocent, ignorant director—just the type whom I imagined languishing in a cold, dark dungeon. Would it not be some evidence if he came forward and said, "I know nothing, I say nothing, I am no doubt wholly incompetent and ignorant, but I have never been guilty"?
It might perhaps be convenient to the House if I make a few observations now upon this Measure which is a Private Member's Bill. When one examines the history in relation to Clauses of this kind, I do not think there can be said to be any consistency of conduct by either party in relation to the Clause. One can find instances of both types of Clause being incorporated in Acts before and since the war. I hope the House will not consider this Bill on a purely party basis but will do so free from any prejudice, from the point of view of trying to facilitate the administration of justice.
Examining the history of Measures containing Clauses of this kind, it appears that in 1946 the late Socialist Government adopted in the National Insurance Act a provision similar to that set out in subsection (1) of this Clause. Then, for a time, one regularly found a Clause in the form putting the onus on directors. Then again, in the time of the late Socialist Government there was apparently a change of view. The insertion of a Clause putting the onus on directors ceased to be automatic and one finds to the end of the period of that Administration instances where the onus of proof was put in the first place on the prosecution.
I mention that because there has been no consistent practice on these Measures adopted by the Socialist Party when in power or, indeed, by the Conservative Party when in power. I think it is right that we should try to secure as much uniformity as possible but, at the same time, we must recognise that there may be cases where it is right and proper to put the onus in the first place on the defence.
It has been said that it really is not very much to put the onus in the first place on the defence. I take the view that it is important to maintain, as far as we can, in the principle of the administration of English justice that normally when a prosecution begins the onus of establishing a prima facie case should rest on the prosecution.
If the hon. and learned Gentleman, who spoke for a considerable time without interruption, will let me advance what can be described as a non-party argument, I should be greatly obliged. I was saying that it should be the normal and main principle, and I hope I carry the House with me. [HON. MEMBERS: "Hear, hear."] I am glad to hear that I do. Then I would say that whenever one wants to depart from that principle, a strong case should be made out for departure. There again, I hope I carry the House with me.
There may be cases where it is right to depart and there may be cases where it is wrong. The Government have carefully considered each one of the Acts mentioned in the Schedule, and, as far as the Government are concerned, I would express the view that in the case of prosecutions under those Acts the Government do not feel that the alteration proposed by my hon. Friend would be followed by any adverse consequences.
In moving this Amendment the hon. and learned Gentleman said that there are two conditions precedent which have to be satisfied before the defence is called upon, before the director has to establish his innocence. It has to be established that the company has been guilty of an offence. It has to be established that at that time the director was a director of the company. Under those Acts, these are the only two conditions precedent, but neither of them shows any prima facie case against the director.
Let me give a practical illustration. Under the Yorkshire Electricity Board case, it would have been possible to have called upon the individual there concerned to come forward to establish his innocence without any evidence being given by the prosecution directly showing his guilt. That was not done in that case. It is the experience of many people that juries do not like people having to come forward in the first place to establish their innocence.
The second practical argument I wish to put before the House is this. If the prosecution have material which indicates the guilt of the accused director, surely it is right that they should bring that evidence out in the first place and let it be cross-examined. That is what happened in the Yorkshire Electricity Board case.
Let us proceed a stage further. Supposing the prosecution have evidence of that character in their possession and reliance is placed in the actual trial on the statutory provision putting the onus originally on the accused. What would happen then? The accused would go into the witness box and would deny all knowledge. He would say that he had exercised all due diligence and then he would be cross-examined on the material in the possession of the prosecution. He might or might not make admissions. If he did not, the prosecution would have to call rebutting evidence. That would be an extraordinarily inconvenient procedure in a criminal trial.
I know the hon. and learned Gentleman has a great deal more knowledge of criminal courts than I have and I know his view on this. However, there is this difficulty. In the case which he has put, the procedure would not vary backwards and forwards in a ding-dong way in accordance with the variation in the burden of proof under this provision any more than under any other provision. Obviously in those cases there would be no difficulty if the prosecution wanted to rely upon their material for cross-examination as evidence. The correct thing to do would be to produce their evidence when they opened their case.
I am glad to have carried the hon. and learned Gentleman with me to that extent, because assuming that the onus is on the defence, we have to examine both cases from the practical point of view: the case where the prosecution have materials on which they can cross-examine and evidence which they can call, and the case where the prosecution have not got such evidence or such materials.
I am not giving way. I am trying to put forward a somewhat involved argument, and I am only a quarter of the way through it. The light may dawn on the right hon. Gentleman by the time I come to the end of my argument.
We have got to consider both those possibilities, and I am glad that the hon. and learned Gentleman agrees with me.
I entirely agree. In those circumstances, we really do not require the onus to be put in the first place upon the defence. Let us take the other possibility, where the prosecution have no such materials. The accused gets up into the witness box, and declares his innocence.
I am trying to do so, but with great difficulty. I find it easier, however, to argue with the hon. and learned Gentleman than with the sotto voce interruptions of his right hon. Friend the Member for Colne Valley, but I will try to deal with both in turn.
The right hon. Gentleman began today by saying that his desire was not to obstruct, but to improve. I am hoping that he will convince me that that is the course he is following. I am trying to address myself to the serious point—it is one of substance—which has been put forward.
To summarise, we have to consider the two alternatives from a practical point of view. The first is where the prosecution have evidence. In that case, we have agreed that wherever the statute puts the onus, that evidence ought to be advanced in the first place. Therefore, where there is evidence available, we do not really want the statutory position putting the onus on the defence.
The second point is that where the onus is on the defence and the prosecution have no material on which to cross-examine or to indicate the guilt of the accused, all that happens, and all that can happen, is that the accused director gets into the witness box and declares his innocence; the jury would have to be directed that there is no evidence to rebut his evidence, and he walks out. From the practical point of view, therefore, the importance of casting the onus on an accused director, once it is proved that he is a director and the company is guilty, is very slight indeed, if not entirely negligible, from the practical point of view of the administration of justice. Experience at trials has, I think, illustrated this.
I come to the next point which the hon. and learned Gentleman made. He devoted a considerable part of his speech to an attack upon the word "neglect" in Clause 1. I listened to that with the very greatest interest, because I know how careful was the hon. and learned Gentleman, as my predecessor, in examining Bills and Acts containing provisions of this kind. When the Rivers (Prevention of Pollution) Bill—the Act of 1951—was going through the House of Commons, the hon. and learned Gentleman was then Solicitor-General. If he refreshes his memory, he will find that Section 2 (8) reads as follows:
Where an offence punishable under this section which has been committed by a body corporate is proved to have been committed with the consent or connivance of or to be attributable"—
mark these words—
to any neglect on the part of any director, manager, secretary or other similar officer of the body corporate…
Those words are precisely the same as the words that my hon. Friend has inserted in lines 10 to 17 of page 1 of the Bill.
I feel sure that the hon. and learned Gentleman satisfied himself at that time that the word "neglect," and not "negligence," was correctly inserted in that Socialist Measure. Perhaps I may remind the hon. and learned Gentleman of the arguments which, no doubt, convinced him at that time, even though if I put them forward they may not convince him now.
He referred to the word "negligence" as a word having a particular meaning to lawyers and being rather technical in character. It is just because of that rather technical meaning which we lawyers attach to the word "negligence" that the word "neglect" was inserted in 1951, and appears in the Bill, to try to avoid that technical connotation which runs with the use of the word "negligence."
So far as I understand this wording in the 1951 Act and in the Bill, it would be a question of fact for the court to determine in each case whether it is proved that the offence was committed
with the consent or connivance of, or is attributable to any neglect on the part of, any director…
I quite agree that the word "neglect" is wide, but these arguments must have commended themselves to the hon. and learned Gentleman at one time. The technical interpretation of the words "any neglect" is very wide, and so far as I am advised it is thought that they will avoid that technical connotation and will leave it to the courts to determine whether or not in the particular circumstances of a given case there has or has not been any neglect.
I have endeavoured to put the position as we see it in relation to the Bill affecting these particular Acts. I should like to make it absolutely clear that we recognise, as, I think, every party recognises, that there can be cases where it is right to put the onus on the defence —that must be an exception to the general rule. Examining these particular instances, it appears to us that, so far as the administration of justice is concerned —and that, after all, is the main thing—no harmful consequences would be likely to follow by putting the onus back to where it normally rests in relation to prosecutions for criminal offences.
Therefore, I hope that with that explanation, which does not involve any party dispute, the discussion on the Amendment, interesting though it is, may be brought to a conclusion. I mention that for this reason. There is, as the House is aware, another Private Member's Bill for discussion after this one, and a Bill which has met with a great deal of support from both sides of the House: that is, the Intestates' Estates Bill. It would be a great pity if, through prolonged discussion on this point, which is really comparatively narrow, the Intestates' Estates Bill were prevented from reaching the Statute Book. The right hon. Member for Colne Valley said that it was his desire not to obstruct, but to improve, the Bill. If so, then surely, as the issue is so clear, we might come to a decision fairly soon upon it.
There is one point which I do not think I have covered. The Amendment is, in fact, a compromise. It means leaving out some of the things that a director would be required to prove when the onus rests upon him. I should like to express my first reaction to that. I think that one consequence of the acceptance of that Amendment would be that in the case where the onus is put on the defence there would be onuses of varying degrees. In some Acts the director would have to prove that he had exercised all due diligence and in others that would not be required. This is a rather important objection to accepting the Amendment.
I think that wherever the onus is put one should try to see that in all cases it is similar in character. I am inclined to agree that we ought to decide in relation to these particular Acts—which may have been passed at a time when it was temporarily the regular practice to insert this provision in all Acts of this character coming before the House, and only at that time—whether it is right, on reflection, particularly having regard to the change of attitude of the late Government towards the end of their tenure of office, to retain the onus of proof on all directors in these Measures.
I wonder whether the Solicitor-General will deal with the two points I raised? The first is on the question whether there is a practical reason for this. I quoted what the Attorney-General said in 1946:
There is the greatest difficulty in securing conviction of directors and officers whom there is every reason to believe have committed offences."—[OFFICIAL REPORT, 15th May 1946; Vol. 422, c. 2013.]
And so on. That was made after inquiry in the office which the hon. and learned Gentleman now adorns. The second point is whether he can give any indication of the meaning of the phrase relating to a person who purports to act in the capacity of an officer of a body corporate?
I should not like to hazard a reply to the second question without notice. As to the first question, which is material, of course it is true that in certain cases it is required to put the onus on the defence for the reason that the then Attorney-General advanced. Of course, it is true in certain cases, but not in every case. In some cases, as I indicated, it does not help at all, because, if there is any evidence to show the guilt of any particular director, wherever the Statute may put the onus, the prosecution ought to advance that evidence, if they have got it, in the first place. Juries do not like the onus being put on the defence and if the prosecution have such evidence I am sure that a properly conducted prosecution will always advance it.
This practice, which is almost becoming customary on a Friday and which I regret on a Private Member's Bill, has interrupted my reply to the hon. and learned Member for Kettering (Mr. Mitchison). So far as concerns the practice of securing conviction in relation to offences under these enactments, I can assure the hon. and learned Gentleman that we have considered it most carefully, free, I hope—as we ought to be in considering matters of this sort—from any political bias. It is our view that these changes could be made in these Acts without any harmful results in regard to the administration of justice and the bringing to book of those who commit offences.
Before dealing with one or two points on this Amendment, I wish to submit that I think I am entitled to comment upon the observations made by the Solicitor-General when he suggested that we might bring this discussion to an early termination. I hoped it had escaped his notice when he made that observation that, apart from the proposer and seconder who spoke from this side of the House, there had been no back bench speech and the only speech from the other side of the House came from the hon. Member for Altrincham and Sale (Mr. Erroll).
I should have thought that on a Bill of such importance as this the House should have at least a fair period of discussion before coming to its conclusions. I think I am reinforced in that view by the fact that the hon. Member for Altrincham and Sale said in relation to the Amendment to which I am now speaking that he felt it was a compromise. He felt it was a matter to which he could give consideration at a later stage. Indeed, so clearly did he put his point at that stage, that my right hon. Friend the Member for Colne Valley (Mr. Glenvil Hall) asked if there might be an adjournment for that purpose. Although that could not be done at this stage, it indicates quite clearly that the hon. Member for Altrincham and Sale did not regard this Amendment as frivolous or unworthy of his attention. That being so, I think that for the Solicitor-General to suggest that there is anything in the nature of obstruction in extending these proceedings unduly, before anyone except the proposer and seconder has spoken from these benches, is bordering on discourtesy. I very much regret the fact that he made that observation.
It is true that there were a number of my colleagues interested in this Bill who are not present, but I have sat through the debate and followed the argument as closely as I could, and I think the Solicitor-General might have waited a little longer before intervening. The proceedings then might have terminated a little earlier.
The hon. Member for Altrincham and Sale, having commenced his observations so attractively by paying a tribute to the Amendment which we are now considering, ended his speech on what was to me a particularly jarring and contradictory note. Having said he would at a later stage consider the matter submitted by this Amendment, he submitted in the clearest and most direct terms that the Amendment should be rejected.
The hon. Member cannot have it both ways. I do not think that in the course of his observations he really convinced himself, starting from the point that the Amendment was a good Amendment and worthy of consideration—although not worthy of immediate acceptance because he had not had it in his hands long enough—and in the end suggesting that it was bad and should be rejected. I hope that on reflection he will—and I am quite willing to give way if he will—say that the substance of this Amendment is of sufficient seriousness and importance: for him to give serious consideration to it.
Even so, there is obviously, as the hon. Member must see, a contradiction between asking us to withdraw the Amendment on a promise that he will subsequently consider it and saying that for purely procedural reasons we should withdraw it on an undertaking by him that he will give further consideration to it at a later stage. He cannot complain if, in the course of a speech which was not notable for its length, he leaves us in some doubt as to what his intentions are. After all, the hon. Member is the promoter of the Bill, and we are entitled to know if he is inclined to give an undertaking in respect of this proposal. It might very well shorten the proceedings today if that undertaking were given in precise terms.
If the hon. Member feels that all he can say is "You have not been so bad as I thought you would be and your Amendment might have been very much worse, but quite seriously I do not intend to consider it," we must submit our arguments, and if necessary consider what steps we should take to establish the Amendment which we support.
I can certainly give the assurance that if the Amendment were withdrawn and the Bill proceeded with with despatch, I would certainly consider the Amendment and the arguments advanced on both sides of the House in connection with it with the greatest possible care, and would be most willing to discuss the matter privately afterwards. But that can only be contingent upon the later stages of the Bill proceeding with despatch. We should have to get the Bill today.
The hon. Member will understand that I am grateful to him for going so far in the direction of giving an undertaking, and my right hon. Friend, who will no doubt be seeking to catch your eye later, Mr. Deputy-Speaker, will take that matter fully into account. I ought to tell the hon. Member, since he has been so forthcoming, that while I regard the matters to which I desire to draw the attention of the House as being of the greatest importance for the protection of the public, and while I think that Members would be failing in their duty if they did not carefully consider the details of those arguments, I would dispose of them with as reasonable despatch as possible.
I am in some difficulty, and the Solicitor-General has really put us all in some difficulty, by rather confusing the issue in the observations which he made to the House. I really must say to him that because a matter appears to him to be quite clear it does not follow that it is entirely clear. The observation which he made in relation to the position of a director who was being obliged to discharge the burden of proof resting upon him was, if I may say so, entirely irrelevant because it left out of consideration the fact that proceedings would presumably have already been taken against the company itself.
I cannot understand how the Solicitor-General could expect us to accept his point as being valid when he omitted all reference to the fact that a crime had been proved. A crime must first be proved against the company or corporation, and, that having been proved, certain facts emerge in the course of proving the case which enable it to be said that the onus should shift when the court considers the question of guilt so far as directors' responsibilities are concerned.
Whatever else this Bill does, unless it is amended it will give less protection to the public than it did before, although I am sure it is no part of the intentions of the hon. Member for Altrincham and Sale that that should be so. It will give less protection because under the Bill as it is now presented, and as the hon. Member wants it, it is possible for serious criminal offences to be committed by bodies corporate and for the perpetrators of those offences to go scot free.
The hon. Member was very careful to say that there were difficulties in the way of an innocent man proving his innocence. I should be the first to concede that, but the danger to the public in this Bill—and there is a serious danger—is that the guilty swindling director will be able to shelter himself behind a rule of procedure. He can commit a crime, some fine can be imposed upon the company, and he himself can get off scot-free, and he can do that any number of times so long as he has covered up his tracks.
If the onus of proof shifted the director who was a swindler and a scoundrel would be in a very different position. It is our duty to see that the public are protected from such people and that such swindlers should not be encouraged or permitted in any way. I am reasonably certain that the hon. Member is with me in that argument though he probably would not agree that his Bill has that weakness in it.
I am sure that the hon. Member has no desire to give any encouragement or protection to those people, but I ask him whether he is not bound to admit, on reflection, that in the form in which this Bill now appears the company can commit and be convicted of an offence, having all the presumptions in law in their favour, and the prosecution, being under the onus of the burden of proof, having fully discharged it. The company may be brought to book and the swindling director go scot-free. That can happen under this Bill because of the defect that we see in it. That is by far the strongest point which I have to make against this very well intentioned, but extremely dangerous Measure.
The hon. Member has invited us to withdraw the Amendment. I invite him to withdraw the Bill, because it really will expose the public of this country to a danger to which it is not exposed under existing provisions. Apart from the provisions of the Bill so far as they relate to the commission of an offence by a body corporate, the words which are proposed beginning at line 10 are to my mind objectionable because they are imprecise. If, as the hon. Member says, he wishes to be sure that an innocent man would have the presumptions in his favour, it is vitally important that the hon. Member should address himself to an expression in the most precise terms since the liberty of the innocent person might very well be in hazard.
When we look at the words themselves we come very quickly to the word "neglect." Nothing that the Solicitor-General has said today has convinced me that this word is free from objection. I think that the hon. Member for Altrincham and Sale should have addressed himself not to the popular meaning of the word "neglect" and asked us to say that that was a better word than the more technical word "negligence," but to satisfying himself whether the word "neglect" has been judicially noticed.
If he had done so he would have found himself in very deep waters, because some learned judges have made observations about the word "neglect" which would be referred to in any cases which arose under this Act. The position is not as simple as the hon. Member would have us believe. I am wondering whether he has had an opportunity of considering the observations of Mr. Justice Lawrence in the case of Pontin v. Price. That is a very interesting case, although I shall not go into its details at length because I wish to compress my argument into a small compass; but in the course of his judgment the learned judge made these observations:
As I understand Mr. Lynes' argument, 'failing' to make a vehicle proceed in accordance with police instructions is not the same thing as 'neglecting' to do so. He says that neglecting imports negligence.
I hope that the hon. Member will have an opportunity of turning that over in his mind because, if neglect imports negligence, he is not out of the wood. He does not get away from negligence merely by using the word "neglect." The judgment goes on:
… and therefore that the justices might have applied their minds to the question of failure only and not to the question whether the failure was accompanied by negligence; but the words of the information are 'did unlawfully fail' and that, to my mind, includes failure through negligence.
So the learned judge, when thinking of these words was not making anything like the same distinction between "neglect" and "negligence" as that which the hon. Member is making in bringing forward this Bill.
There are several cases dealing with the meaning of the word "neglect," but I do not wish to take up too much of the time of the House. It will be sufficient for the purpose of making my point if I refer only to one other case. In the case of re Hughes, Rea v. Black, Mr. Justice Simonds said:
'neglect' when used alone prima facie covers only omissions that are negligent, but when used in certain contexts it may mean no more than 'fail'.
In those circumstances is the hon. Member really satisfied that by including this word in a Bill which, on his own argument, is going to involve peril to innocent directors, he is really getting all that he wants?
The reason why I intervened at an earlier stage in the debate to ask the hon. Member whether he had addressed himself to the point which he quite rightly introduced in Committee—to the effect that he thought the word gave greater precision—was that if it were to give greater precision that would be an argument which would very seriously influence me in my attitude towards this particular Clause. I think he will agree that the observations in the parts of the judgments which I have read to the House do at least show that the matter is by no means certain and precise, and that very long and complicated arguments would develop in the courts as to the meaning of the word "neglect."
In the circumstances, whatever might have been said in 1951, I would ask the hon. Member whether, on the merits of the argument, he is satisfied that in this vitally important matter he has not gone rather further than he should have done. If he were to accept our Amendment no difficulty would arise on the interpretation of the word "neglect." The whole point would then be that the word would be restricted to cases of consent and connivance and we should be giving way, in effect, on the point to which I know the hon. Gentleman attaches importance—the question of diligence. That would be a very strong argument to show that in relation to the duties owed by these directors to the public there should be a very exceptional degree of diligence imposed upon them and they should have not merely the attitude towards their affairs that we have in every-day matters but something in the nature of the vigilance imposed upon a trustee and, if they did not, and the public suffered, they could not get out of their responsibilities.
A very strong argument could be deployed along those lines, but my right hon. and hon. Friends have decided, despite the strength of those arguments, that there is sufficient safeguard, provided the hon. Member gives way on the point of where the onus of proof should lie, and this very important matter could be settled quite quickly. But if he says that we are pressing him too far it is very important that we should insist upon this Amendment in these terms. I hope that the hon. Gentleman, upon reflection, will say that he agrees that there are dangers to the public in this Bill—dangers from which they could only be protected by the Amendment which we have put forward.
I am sure that the House will be grateful to my hon. Friend the Member for Wigan (Mr. R. Williams) for his disquisition upon the meaning of the word "neglect." I am rather sorry that the Solicitor-General was not present to benefit from the learning which my hon. Friend has just been exposing. If he had been, I think he would have felt inclined, in fairness, to withdraw a great deal of what he said on the subject when he spoke just now.
The whole burden of the remarks of the hon. Member for Altrincham and Sale (Mr. Erroll) was that the Labour Government had made some great change in the rules as to the burden of proof when they introduced the Statutes which are known broadly as the nationalisation Statutes. That is very far from being the truth. It has always been understood in law that if a man is found to be in singularly suspicious circumstances and he alone has the means—or most easily had the means—of showing that those circumstances which appear to be so suspicious are in fact quite easily explained, then it is for him to go into the witness box and explain them.
We have instances where that is the case. It applies where a person is found to be in possession of recently stolen goods, and it is an offence merely to be found in possession of housebreaking implements by night. In all these cases, such are the suspicious circumstances that we consider it fair that the man should be put upon his oath to say that there is a reasonable explanation.
As has been said by my hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas), this is not a question of asking an innocent man to prove his innocence. We are all, on both sides of the House, very proud of the tradition of our law, which is perfectly plain, that the prosecution must prove beyond all reasonable doubt that a man is guilty before, in fact, he is found guilty. Nobody wants to change that situation, as far as I know, and nobody is trying to do so in opposing what the hon. Member for Altrincham and Sale seeks to do in the Bill. It is merely a question of the onus of proof.
The hon. Member said that the more innocent a man was, the more difficult it would be for him to prove his innocence. With great respect to him, surely that is nonsense. The less a man knows about the subject, the easier it is for him to go into the box and say, "I do not know anything about this. In fact, I was out of the country on this or that business." All of the facts which he knows, he can readily put to the jury and ask the jury to believe. If he is innocent, nothing is more simple than to show that innocence when he goes into the box.
I am glad to see the hon. Member for Buckinghamshire, South (Mr. R. Bell) in his place, because he was good enough to bring to me privately an authority which he had upon the nature of the doubt which an accused director must put into the minds of the jury. He brought forward the case in which something is held to be accepted until the contrary is proved and in which it was said from the bench that the burden of proof on the accused may be discharged by evidence satisfying the jury of the probability of that which the accused is seeking to establish—evidence of the balance of probabilities; and I know it has been thought, as a result of that decision, that there is some greater burden put upon the accused man than there would be if he had merely to raise a reasonable doubt.
In my submission, this is a complete fallacy. He may discharge his duty, said the learned judge on that occasion, by showing that the balance of probabilities is on his side. With respect, I say of course he would discharge his duty if he did that, but he need not go as far as that. If he could implant in the minds of the jury a reasonable doubt as to whether he is innocent or guilty, he would go away scot-free, and in my submission it would be necessary for a judge in summing up the case to the jury to put that point to the jury and to say that that is what the accused man has to do.
By our Amendment, we want the director of companies against which offences have been proved—and therefore there is great suspicion about him because directors should know what is going on in their companies—to be in the position to have to show that he did not consent to those things being done or did not connive at them. We do not want directors to be in a privileged position, and in my submission that is what the hon. Member for Altrincham and Sale is trying to do by the Bill—to put directors of such companies, against whom such evidence has been proved, into a position of greater privilege than other people who, under our law, find themselves in the dock charged with offences, when the prosecution has only had to show, in the first instance, that there were these circumstances of grave suspicion surrounding them and when the accused had the peculiar means of showing that, in fact, those circumstances were nothing like as black as they appeared to be and, in fact, that there was a reasonable doubt whether or not they cast suspicion upon the director in question.
The Solicitor-General is not in his place, but I am sure it will be proper for me to make this remark. He seems to regard me as a man of controversy, especially where party matters are concerned. That is very far from being the truth, as I am a man of peace, I would say especially where party matters are concerned; but I would say this to the hon. Member for Altrincham and Sale and to the Solicitor-General, that unless they can show far greater reasons than they have today as to why directors should be put in a special position and given a protection which no other person in our law would have when found in similar circumstances, then they will run a very grave risk of laying themselves open to the charge that they are introducing a partisan Measure in favour of their own friends.
Let them produce those reasons, and then my hon. and learned Friend will doubtless be only too glad to withdraw the Amendments to which he has spoken today; but in the absence of those reasons—and I must say we have had none given to us today—I personally think that the Amendments should be pressed to a Division.
We are discussing a series of three Amendments. We do not attach the same importance to all three. Although, for procedural reasons, we are moving the first, which is to leave out "for" and to insert "in," the one to which we attach the most importance is, of course, the Amendment in page 1, line 10, to leave out from the beginning, to the end of line 22, and to insert
and that he exercised all such diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions in that capacity and all the circumstances.
No one on this side of the House so far has thought it worth while to refer to the Amendment upon which this discussion hinges, and it may not therefore come amiss if I make a brief reference to it. I want to say, first of all, that we have not put the Amendment down as a dilatory Amendment. We are always anxious, in every quarter of the House, to avoid slovenliness in Bills whenever we can, although it might be argued that the argument over the use of the word "in" instead of "for" has very little substance. It is rather like the argument about whether we should say "on" or "at" or "in" a certain page. Nevertheless, as "in" seems the correct word to use, we hope the promoters of the Bill will accept it.
In some Bills and in fact in many Acts, we have a phrase which has only one merit—that it has been hallowed by long acceptance and tradition. I remember some years ago pointing out to a Minister who was introducing a very important Measure that in more than one place in the Bill he had a reference to the "two last preceding sections"; and I pointed out to him that both of them could not be the last, and that one of them must be. He suggested that we should speak to the civil servant who had drafted the Measure, and when I pointed out to him that both could not be last, there was for a moment a shocked pause, and then he said, "I do not agree." From that time on, I have noticed that, although sometimes we get the drafting corrected, we still find many occasions when reference is made to the "two last preceding sections."
As I said earlier, although we should like to improve the drafting, and although we feel that the promoters should accept our suggestion to insert "in" instead of "for," our real objection to the Bill is based on much more weighty grounds.
The Solicitor-General, before he left the Chamber, was good enough to indicate to me that he was sorry he could not stay to listen to the subsequent debate. Like my hon. and learned Friend the Member for Brigg (Mr. E. L. Mallalieu) I am sorry he was not here to listen to what my hon. Friend the Member for Wigan (Mr. R. Williams) had to say, because, in my view, what both he and my hon. and learned Friend the Member for Brigg said blew most of the arguments used by the Solicitor-General sky-high.
The Solicitor-General seemed to think that because in one case—and he quoted the Yorkshire case—the prosecution had direct evidence, that somehow did away with the necessity for the provisions which have been put into those Acts which the Bill seeks to amend. It is, of course, in my view and, I think, the view of my hon. Friends on this side of the House, absurd to argue that, because there is direct evidence, the provisions inserted—and inserted for good reasons—in the Measures to which attention is being directed in the Schedule ought not to be there. There is no reason why we should not have two legs in the way of evidence for very often, as has been pointed out, there is no evidence—direct evidence—such as there was in the case to which the Solicitor-General referred.
I thought that the Solicitor-General tried to prove too much. His contention, and the contention of the hon. Gentleman the Member for Altrincham and Sale (Mr. Erroll), who introduced this Measure, is that this is a non-Party Bill. I do not know whether they believe that themselves. If they do they must be far simpler than I credited them with being, because the astonishing thing is that this Bill has the marks of party feeling all over it.
I have a very lively recollection of the passage of many of the Acts which are referred to in the Schedule, and during the passage of those Measures upstairs, and even afterwards on Report stage, on more than one occasion we had long and at times acrimonious debates on whether this provision should or should not go into the particular Bill then under discussion.
If this is not a party Measure, why is it that, although the Statute Book is literally littered with provisions of this kind going back 30 years, the only Measures chosen for insertion in the Schedule, and in which this change is desired, are Measures introduced by the Labour Government from 1945 to 1950?
Oh, no. That I could not accept for one moment, because the facts are very much against the hon. Gentleman. The Acts dealt with in this Bill are all of them Public Acts, and—
I accept your Ruling, of course, Mr. Deputy-Speaker, but I was trying to show—perhaps, not as well as I ought—that the argument adduced by the other side to the effect that this is a non-party Measure is inaccurate. This argument from the other side was reiterated thy the Solicitor-General and the promoter of the Bill. I think you were not in the Chair at the time, Sir.
They both stated this morning—certainly it was stated in Committee, though, perhaps, that is not evidence here—that this was a non-party Measure, and for that reason we should not object to it; in fact, we should agree to it. I was attempting—and I hope you will allow me to finish this part of my speech, Mr. Deputy-Speaker—to point out to them that the evidence is dead against them in that, if it is not a party Measure, why is it that only Measures passed by a Labour Government have been included in the Schedule?
We have discussed this matter many times in the years between 1945 and now. One vivid recollection I have of our discussions of this matter is when the Gas Bill was going through Committee, when, I think, we came to this provision at about 5.30 in the morning. We sat there almost continuously for 72 hours. We started on Monday at 10.30 in the morning and went on with very short breaks—at one time with no break at all, during Tuesday—right through to noon on Thursday. Therefore, this matter has been very fully discussed. Nor is it right or fair, in my view, to say that the Labour Government came to a different conclusion in 1950 because in certain Measures during that period a different provision was inserted.
As a matter of fact, that, I think, proves our contention. We do not lay down any hard-and-fast rule. We are not against directors as such. Why should we be? Many hon. Gentlemen on this side of the House, I believe, are directors either of their own family companies or of other public undertakings; and directors, perhaps, are as necessary as politicians and lawyers; and we do not object to directors. Not at all. What we do say—and we hope that hon. Gentlemen on the other side of the House will be fair enough to agree with us—is that directors should not be put in a privileged position whereas that, in fact, is what is being done by this Bill. We object, and, I think, we have every right to object.
When the Solicitor-General talks, as he did, about our inconsistency, actually that helps to prove the contention that we are trying to get the House to agree to. During the passage of the Acts referred to in the Schedule, we did discuss this matter very fully, and the provision was inserted in those Acts only where it was felt absolutely essential that it should go in. Therefore, when the Solicitor-General, as he does, seems to think it conclusive that, because in 1950 certain Acts did not include this provision, it should go out of earlier Acts, we do not accept that at all.
We did very fully, on each of those Measures to which reference is being made in the Schedule, consider the matter, and it was our view, and the view of the House, and, so far as we represented the country and the electors—as, undoubtedly, we did—it was the view of the electors, that directors should not be put in this privileged position, but that they should have to prove, positively, once the company had been shown to be guilty of a criminal act, that, so far as they were concerned, they were innocent.
I should like to underline what my hon. and learned Friend the Member for Brigg said when he pointed out that the hon. Gentleman the Member for Altrincham and Sale had said more than most of us here can accept when he laid down the principle that the more innocent a man is the more difficult it is to prove his innocence. As I listened to the hon. Gentleman make that astonishing observation it occurred to me that most of us in this House are in grave and great jeopardy, because no one could look more innocent than most Members of Parliament, and I suppose few people are more innocent than they are; and, therefore, I suppose that at any time, according to him, any one of us may be taken up for an offence—murder, thievery, burglary, or anything—because the more innocent we look the more difficult it will be for us, if we fall into the hands of the law, to prove our innocence. The answer is that that kind of argument is quite absurd, and no one would accept it for a moment.
It is not true, whether it is omission or commission, and I am sure that on reflection the hon. Gentleman will realise that he has said a little too much. If a person is innocent he is obviously much more able and likely to prove his innocence than if the contrary be the case, otherwise it says very little for British justice, about which most of us can get very eloquent.
This Bill is not a non-party Measure. That has been shown beyond doubt. It is vindictive; it is an attempt to undo legislation passed by the Labour Government and to achieve now what formerly was rejected. We on this side feel that directors should not be put into this privileged position and we must vote against the Bill. The hon. Gentleman and his hon. Friends have no mandate for this. They know as well as we do that if the electors were consulted they would overwhelmingly be of the view that the director should take his chance like others in this respect. It is perfectly easy for a director to prove himself innocent if necessary, and the legislation which has been passed imposes no hardship on them.
Having said that, may I add that if, even now, the hon. Gentleman were to accept the last of our Amendments we should be very willing to consider whether it is possible to meet him—and by that I mean this afternoon. As I understand it, our Amendment is in order. There no need for him or any of his hon. Friends to say that they will consider it, and that if the consideration is favourable something will be inserted when the Bill reaches another place. I must say on behalf of my hon. and right hon. Friends that that is not good enough.
If hon. Gentlemen opposite genuinely feel—although we do not know why—that directors are under a burden which they should not as ordinary individuals bear, they can lessen that burden by accepting our Amendment. Short of that, I must ask my hon. and right hon. Friends to resist to the utmost this attempt to put this Bill on the Statute Book, because we believe it to be a retrograde step, unfair to ordinary individuals, which gives directors a privilege they should not have.
I want to reinforce the plea made by my right hon. Friend. We have dealt with this Bill, both in Committee and here in the House, in a very objective way, although there are in it elements which might well prompt one to perhaps rather extreme views and observations. The hon. Member for Altrincham and Sale (Mr. Erroll) has said that he is not bringing this forward in any party spirit, but I agree with my right hon. Friend that it is a little odd that it is merely the enactments of the Labour Government which are included in the Schedule, although there are precisely similar enactments in other Acts which are not included in the Schedule.
Coming to it at first blush, the only difference which stands out is that one set was passed by a Labour Government and the other set was not. We have at no stage, neither in this House nor in Committee, developed the line of differentiation between why those Acts which were passed by the Labour Government are included and why those Acts which were not passed by the Labour Government are excluded.
Despite all that, we have dealt with this Bill objectively. After this Bill there are on the Order Paper today two other Bills which I am sure hon. Members are very anxious should be considered by the House, and we on this side will do everything we possibly can to facilitate their consideration. We have brought forward this Amendment in the hope that the sponsors of the Bill would accept it so that we can dispose of this Bill this afternoon. If they approach the matter in an objective spirit and not in a party spirit, with a view to facilitating the passage of this Bill and at the same time producing a Measure which will have the acquiescence of all parts of the House, every one of us perhaps conceding a little here and there in order to produce an agreed Measure, then it is within the power of the sponsors of the Measure to accept our proposal this afternoon. If they do not take that line, it puts hon. Members on this side of the House in a very great difficulty.
The hon. Member for Altrincham and Sale said that he would consider the matter, and that it would go to another place. If this Amendment were not introduced in another place this House would be finished with it, there would be no opportunity for us to reconsider the position. Whereas, if the hon. Gentleman would accept this Amendment, it would go to another place, and if for some reason or other it were there felt that the Amendment could not be accepted nobody in this House could pre- vent their so objecting. But then the matter would come back to this House and we should have another opportunity of considering it.
If the hon. Gentleman accepts our Amendment it does not mean that there will be no opportunity of considering and revising it afterwards, but if the Amendment is rejected this afternoon and the Bill goes through this afternoon, the Opposition will have no further opportunity of considering it at all. Rejection of the Amendment would mean that the Government would have an opportunity of considering it, but the Opposition would not have such an opportunity.
In the interests of the passage of the Bill and getting an agreed Measure, and in order to allow an opportunity for further consideration, I urge the hon. Gentleman to accept our Amendment. We are not pursuing a vendetta against this Bill to the utmost. I hope I have made that perfectly clear. We have brought forward a proposal which I suggest is quite reasonable, which involves an Amendment of our own Acts of Parliament, which goes a considerable way to meet such objections as the hon. Gentleman has to our Acts of Parliament, which would result in a compromise Measure requiring a little give and take on both sides of the House, but which would mean that it could be carried through with the general consent of the House as a whole. I therefore urge him to accept this Amendment.
The Solicitor-General, if I may say so with respect, made a very illuminating speech, and we on this side were glad to have the advantage of his observations. I must say, however, that I could not entirely agree with the conclusions to which he arrived.
First of all, he suggested that the onus of proof in these various Acts should be similar in character, and therefore he suggested that it might be undesirable for that reason to have the onus of proof involving consensus and consent in one case, and in another case the onus of proof involving not only consensus and consent but also the exercising of a proper diligence. The discrepancy is already there. There is already a discrepancy between the Acts which have the onus of proof placed on the defendant and the Acts which do not have the onus of proof shifted on to the defendant after proving that the company is guilty of the offence and that the director of the company was the director of the company at the appropriate time.
We also have the difference in the Acts of Parliament between the use of the word "neglect" and "negligence." It is a little entertaining to hear from the benches opposite a plea in favour of a neat centralised provision of general application when in this Bill they themselves are making an alteration which distinguishes Labour Acts of Parliament from Acts of Parliament passed by other Administrations.
Then he went on to deal with the evidence and made the point, with which I am in complete agreement, that the prosecution if they have evidence of consent or of connivance or absence of due diligence should provide that evidence when they open their case; they should open on it. I entirely agree. My own personal view would be that it would be quite improper for them not to open on that evidence and to disclose it before cross-examining the defence.
All that this provision does, and all that these Acts do, is to shift the onus of proof from the prosecution on to the defence after establishing the two primary conditions, the conditions being that the company was guilty and the director of the company was director of the company when the offence was committed. The prosecution have to open the case. Let us have no doubt about that. It is not a case where the defendant opens because there is a prima facie case against him before the case starts at all.
The prosecution open the case, and the prosecution must establish these two things: The guilt of the company and that the director was a member of the company when the offence was committed, and, therefore, if they are going to give any evidence at all about the consent or connivance of the director they must themselves give that evidence when they open the prosecution. They cannot shuttlecock back and forth, with the prosecution calling evidence in the first place, then saying that the onus has shifted on to the defendant, the defendant then dealing with that onus, and the prosecution then having another go at it to establish evidence of rebuttal.
If they had any evidence which they wanted to establish themselves, the course would be open on it. Therefore, I agree with the right hon. and learned Gentleman that the proper course for the prosecution would be to produce its evidence in the first place, but I disagree that it follows that there is no need for the onus of proof to shift. They are two entirely different things.
The production of evidence in the first place is the right and proper course to take, but it does not follow that because the prosecution produce their evidence in the first place there is no need for the onus of proof to shift. The onus of proof shifts at the stage when the guilt of the company and of the director being a director of the company on the relevant date are accepted. If those two things are established, what the onus of proof establishes is that the man is then guilty unless he proves he is innocent. That is an entirely different thing from saying that the prosecution should not be under an obligation to produce in the first place such evidence as they have dealing with the man's consent. Therefore, while I agree with the right hon. and learned Gentleman's premise, I disagree with his conclusion.
The hon. and learned Gentleman also referred to the Rivers (Prevention of Pollution) Act, and the use of the word "neglect." He had a little quiet entertainment at the expense of the Law Officer at the time the Bill was passed. He knows what happens on these occasions. I should be the last person to charge him personally of having a precise knowledge of every single Act of Parliament and every single Regulation and Order that goes through this House, and to pile upon him the responsibility for the phraseology which is used in every single Act.
We are dealing at the moment with the word "neglect" as in this Bill, and I find the observations of the hon. Member for Altrincham and Sale quite confusing on this point. "Neglect," he said—and I accept it because it is wider than the term "negligence"—was falling away from the standard of conduct, although there is no legal definition of what the standard of conduct is falling away from. I completely fail to follow how any legal effect or decision could be given to this. Then he went on to talk about the frequency of attendance at board meetings, the standard of attendance at board meetings, that it might depend on whether a meeting is called once a year or once a week, and precisely how the company's business was conducted.
Before I was interrupted I was dealing with the word "neglect" and the interpretation given to it. The hon. Gentleman said it depended upon the standard of conduct, though it was not legally defined. At any rate, if it is not legally defined, it must be legally applied. It ought to be possible to give some precision to the word "neglect." I fail to see, particularly in view of the hon. Gentleman's explanation, how the Clause as it now stands should operate. He says that it depends whether decisions are taken and that if it were on the agenda of the directors' meeting that the subject was to be dealt with and the director failed to attend, he would be guilty of not conforming with the standard of conduct to which the hon. Member refers and would be guilty of neglect and would therefore be liable under the provisions of the Bill.
That just will not do. We must have some arrangement by which the person who may be charged with this can know whether or not he would be guilty of an offence. If a director reads the speech which the hon. Gentleman delivered this morning he will find it utterly impossible to form any conclusion as to whether the action which the hon. Gentleman suggests he would take or would fail to take would be covered by the Bill. There is a complete lack of precision. The hon. Member is proposing to pass a Measure under which it would be most difficult to say whether or not any action is an action which would or would not be an offence within the Bill. We propose that that should be eliminated and that the matter should be dealt with with greater precision.
The hon. Gentleman also said that the more innocent the person was the more difficult it was to prove his innocence because he would be ignorant. Again, I completely fail to follow the hon. Gentleman's contention in favour of the Measure on that ground. If the man is not guilty because he is ignorant, all he has to do is to go into the box and say so and be subject to the inquiry by cross-examination which our law provides. There is not the slightest difficulty in dealing with that.
Then the hon. Member for Altrincham and Sale distinguished between faults of omission and faults of commission. I am with him in that. The hon. Member said that a distinction ought to be drawn between them, and that is precisely what our Amendment provides, that the man should be guilty where there is commission—namely, connivance or consent, which is active participation—and that he should not have the burden of proof put upon him where there is omission, whether one calls it neglect or negligence. In that part of his speech the hon. Member was favouring us and I was hoping that he would find it possible to accept the Amendment.
In addition to that, when dealing with omission and commission, one has in any case in the Schedule, bundled together as offences, acts of commission and omission, and no distinction between the two categories is made by the Bill itself. [Interruption.] If the hon. Member for Altrincham and Sale wishes to speak I will certainly give way to him. It is a pity that he should confine his observations to a giggle and a mumble.
I have offered the hon. Gentleman a way out so that he could get a move on and enable the Bills subsequent to this one to come before the House. I am sorry that the Solicitor-General was not in the House at the time—there is no censure in that remark for the hon. and learned Gentleman was out for a short time to get some necessary refreshment—I was urging the hon. Member for Altrincham and Sale to accept the Amendment.
I will give way at once if the hon. Member will get up and say that he accepts the Amendment. I give him that opportunity now. As he does not rise I gather that he is merely playing with the House by indicating that he might accept the Amendment when he has no intention of doing anything of the kind. I was hoping that the Solicitor-General would accept the Amendment, because that would enable the matter to be reconsidered.
Yes, I know that. I am sorry that the hon. and learned Gentleman was not here when I made my opening observations. We have been pressed that it is a Private Member's Bill and a non-party Measure. My right hon. Friend pointed out with some force that the only Acts included in the Schedule are Acts passed by the Labour Government. I have not the slightest doubt that if the Government and the Solicitor-General would give merely the slightest indication to the hon. Member for Altrincham and Sale that the Amendment was acceptable to the Government there would be no difficulty in getting the hon. Member to accept it.
I suggest that the compromise proposal which we are putting forward should be accepted by the Government. That would mean that the Bill could go through today as a consent Measure involving everybody in a certain amount of give and take. I am sorry that the Solicitor-General was not here when I made my observations, because I am sure he would give consideration to them. I hope it may still be possible for him to accept the Amendment which we put down in the hope that it would be accepted as a compromise proposal.
|Division No. 204.]||AYES||[2.30 p.m.|
|Aitken, W T.||Fisher, Nigel||Marlowe, A. A. H|
|Ashton, H. (Chelmsford)||Fletcher-Cooke, C.||Moore, Lt.-Col. Sir Thomas|
|Assheton, Rt. Hon. R. (Blackburn, W)||George, Rt. Hon. Maj G. Lloyd||Oakshott, H. D|
|Baldock, Lt.-Cmdr. J. M.||Gough, C. F. H.||Partridge, E.|
|Baxter, A. B.||Grimond, J,||Raikes, H. V|
|Bennett, Dr. Reginald (Gosport)||Hale, Leslie (Oldham, W.)||Remnant, Hon. P.|
|Bossom, A. C.||Heath, Edward||Robertson, Sir David|
|Bowen, E. R.||Holland-Martin, C. J.||Rodgers, John (Sevenoaks)|
|Boyle, Sir Edward||Holmes, Sir Stanley (Harwich)||Shepherd, William|
|Buchan-Hepburn, Rt. Hon. P. G T.||Holt, A. F.||Simon, J. E. S. (Middlesbrough, W.)|
|Cary, Sir Robert||Hurd, A. R.||Studholme, H. G|
|Crosthwaite-Eyre, Col. O. E.||Hylton-Foster, H B. H.||Thompson, Lt.-Cdr. R. (Croydon, W.)|
|Davidson, Viscountess||Kaberry, D.||Weitzman, D.|
|Dodds-Parker, A. D.||Linstead, H. N.||Williams, Sir Herbert (Croydon, E.)|
|Doughty, C. J. A.||Macpherson, Maj. Niall (Dumfries)|
|Drewe, C.||Manningham-Buller, Sir R. E.||TELLERS FOR THE AYES:|
|Duthie, W. S.||Markham, Major S. F.||Mr. Erroll and Mr. Ronald Bell.|
|Albu, A. H.||Hobson, C. R.||Morris, Percy (Swansea, W)|
|Allen, Arthur (Bosworth)||Holman, P.||Moyle, A.|
|Beswick, F.||Hudson, James (Ealing, N.)||Pargiter, G. A.|
|Bevan, Rt. Hon. A. (Ebbw Vale)||Hughes, Emrys (S. Ayrshire)||Robinson, Kenneth (St. Pancras, N.)|
|Brockway, A. F.||Hynd, H. (Accrington)||Ross, William|
|Castle, Mrs. B. A.||Janner, B.||Smith, Norman (Nottingham, S.)|
|Dalton, Rt. Hon. H.||Jay, Rt. Hon. D. P. T.||Snow, J. W.|
|Driberg, T. E. N.||Jeger, George (Goole)||Sorensen, R. W.|
|Dugdale, Rt. Hon. John (W. Bromwich)||Jenkins, R. H. (Stechford)||Stewart, Michael (Fulham, E.)|
|Ede, Rt. Hon. J. C.||Johnson, James (Rugby)||Ungoed-Thomas, Sir Lynn|
|Fienburgh, W.||King, Dr. H. M||Willey, Frederick (Sunderland, N.)|
|Fletcher, Eric (Islington, E.)||Lindgren, G. S.||Wyatt, W. L.|
|Freeman, John (Watford)||Lipton, Lt.-Col. M.|
|Griffiths, Rt. Hon. James (Llanelly)||Mallalieu, E. L. (Brigg)||TELLERS FOR THE NOES:|
|Hall, Rt. Hon. Glenvil (Colne Valley)||Mikardo, Ian||Mr. Ronald Williams and|
|Hastings, S.||Morley, R.||Mr. Mitchison.|
May I ask, Mr. Deputy-Speaker, whether it is possible for us to challenge a Division on the other two Amendments? It is true that by a Ruling of Mr. Speaker, and with the consent of the House, we discussed them together, but I am asking whether we have not the right to challenge a Division on them, because they are not all the same? The Amendment to line 10, in particular, raises very different matters from the one we have just voted on.
to line 10 are different from the second one, in line 5, upon which we have just voted. Even if the word "In" had been inserted, it would still, in my submission, have been necessary to vote on at least one of the others, which, it might be argued, are consequential on each other. If the Amendment in line 8 had been carried, that in line 10 would have fallen, but surely the fact that the second Amendment in line 5, has been lost that does not prevent our moving, with your permission, either of the two Amendments which follow it, although I agree perhaps not both.
I was under the impression that they were linked together, and that the one on which we have just divided was the paving Amendment, and if it were negatived, as it has been, the other two would fall. Had the Amendment been carried instead of negatived. I should have called the other two.
The point is this. I put to your predecessor in the Chair, Mr. Speaker, that we should be allowed to vote on either the third Amendment on the Paper, which is in line 8, or the fourth Amendment, which is in line 10. We agreed at the outset that we should discuss them as a whole, but we on this side of the House were under the impression that they might be voted on separately when we came to that stage of our proceedings.
Mr. Deputy-Speaker has been minded rule that because the second Amendment has been lost, therefore, the other two fall. It is our submission that the third Amendment and certainly the fourth Amendment do not hang on the second Amendment, which has now been negatived. They are, in fact, quite different and, therefore, we should be allowed to divide on them.
As I recollect the matter, nothing was said about voting on the separate issues at all. My understanding of the matter, when I put it to the House, was simply that we should have a general discussion on the three Amendments and that the result of the other two depended upon the fate of the first of those three, the first Amendment being a paving or introductory Amendment to the others. If, as I understand, the word "For" now stands part of the Bill as a result of the Division, I do not know how the other two Amendments, if they were voted on and carried, would make sense.
For the whole morning we have been discussing the point contained in the third Amendment in the group, together with the other Amendments. The three Amendments are so closely linked that, I submit, they stand or fall together. As I have understood the position, we were discussing them all with a view to arriving at a decision upon all three.
This is contrary to my whole understanding. I admit that when we came to that arrangement nothing was said about dividing, nothing definite. If the right hon. Gentleman genuinely feels misled by what took place on that occasion, I will permit him to have a Division on one of these Amendments. Which one?
Amendment proposed: In page 1, line 10, to leave out from the beginning, to the end of line 22, and to insert:
and that he exercised all such diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions in that capacity and all the circumstances."—[Mr. Glenvil Hall.]
|Division No. 205.]||AYES||[2.43 p.m.|
|Ashton, H. (Chelmsford)||Fisher, Nigel||Marlowe, A. A. H.|
|Assheton, Rt. Hon. R. (Blackburn, W.)||Fletcher-Cooke, C||Moore, Lt.-Col. Sir Thomas|
|Raldock, Lt.-Cmdr. J M.||George, Rt. Hon. Maj. G Lloyd||Oakshott, H. D.|
|Baxter, A. B||Gough, C. F. H.||Orr-Ewing, Ian L. (Weston-super-Mare)|
|Bennett, Dr. Reginald (Gosport)||Grimond, J.||Partridge, E.|
|Bossom, A. C.||Heath, Edward||Raikes, H. V.|
|Bowen, E. R.||Holland-Martin, C. J.||Remnant, Hon. P.|
|Robertson, Sir David|
|Boyle, Sir Edward||Holmes, Sir Stanley (Harwich)||Rodgers, John (Sevenoaks)|
|Braithwaite, Lt.-Cdr G. (Bristol, N.W.)||Holt, A. F.||Shepherd, William|
|Buchan-Hepburn, Rt. Hon. P. G. T.||Hutchinson, Sir Geoffrey (Word, N.)||Simon, J. E. S. (Middlesbrough, W.)|
|Cary, Sir Robert||Hylton-Foster, H B. H.||Studholme, H. G.|
|Crosthwaite-Eyre, Col. O. E.||Linstead, H. N.||Thompson, Lt.-Cdr. R. (Croydon, W.)|
|Davidson, Viscountess||Lucas, P. B. (Brentford)||Williams, Sir Herbert (Croydon, E.)|
|Dodds-Parker, A. D.||Macpherson, Maj. Niall (Dumfries)||TELLERS FOR THE AYES:|
|Doughty, C. J. A.||Manningham-Buller, Sir R. E.||Mr. Erroll and Mr. Ronald Bell.|
|Acland, Sir Richard||Hall, Rt. Hon. Glenvil (Colne Valley)||Mikardo, Ian|
|Albu, A. H||Hastings, S.||Morley, R.|
|Allen, Arthur (Bosworth)||Hobson, C. R.||Morris, Percy (Swansea, W)|
|Beswick, F.||Holman, P.||Moyle, A|
|Bevan, Rt. Hon. A (Ebbw Vale)||Hudson, James (Ealing, N.)||Pargiter, G. A.|
|Brockway, A. F.||Hughes, Emrys (S. Ayrshire)||Ross, William|
|Castle, Mrs B. A.||Hynd, H. (Accrington)||Smith, Norman (Nottingham, S)|
|Corbet, Mrs. Freda||Janner, B.||Snow, J. W.|
|Driberg, T. E. N.||Jay, Rt. Hon. D. P. T.||Sorensen, R. W|
|Dugdale, Rt. Hon John (W. Bromwich)||Jeger, George (Goole)||Stewart, Michael (Fulham, E.)|
|Ede, Rt. Hon J. C.||Jenkins, R. H. (Stechford)||Ungoed-Thomas, Sir Lynn|
|Fienburgh, W||Johnson, James (Rugby)||Willey, Frederick (Sunderland, N)|
|Fletcher, Eric (Islington, E.)||King, Dr. H. M.||Wyatt, W. L.|
|Follick, M.||Lindgren, G. S.||TELLERS FOR THE NOES:|
|Griffiths, Rt. Hon James (Llanelly)||Lipton, Lt.-Col. M.||Mr. Ronald Williams and|
|Hale, Leslie (Oldham, W.)||Mallalieu, E. L (Brigg)||Mr. Mitchison.|
On a point of order. May we invite your guidance, Mr. Speaker, as to the position in which the House now finds itself, before we proceed to the Third Reading? As I understand it, as a result of the three Divisions that have taken place, in each of which the result was arrived at by only a small majority, Clause 1—the material Clause—no longer makes sense, because the result of those Divisions was completely contradictory, and the Bill as now drafted reads as follows:
For each of the scheduled provisions"—
But there are no words to substitute, because the House decided to eliminate from the Bill the words that were printed and the House has also decided not to substitute any other words. The Bill, therefore, is now complete nonsense. It is meaningless. It is not merely ungrammatical, but it is senseless as it now stands.
I invite your guidance, Mr. Speaker, as to whether, in those circumstances, it is proper to invite the House to proceed with the Third Reading of a Bill which makes nonsense. Would it not be far better that the House should proceed to deal with the two other very important Bills which are on the Order Paper, and which, I am sure, most Members would be anxious to see proceeded with.
I do not think that the law that we have heard from the opposite side is very sensible. The thing reads very sensibly—
there shall be … the following words"—
I can understand what that means. The words are in the Bill, so why worry?
Further to that point of order. There was some doubt about the Government's attitude to the Bill. In view of what has happened, is it not now completely in line with Government policy, and could it not be taken over as a Government Bill?
The hon. Member for Islington, East (Mr. E. Fletcher) has drawn my attention to the fact that as a result of the last two Divisions, the Bill, as he says, does not make sense. I would point out that that is due to no action of mine but to the action of the House itself.
I think the proper course to pursue is to proceed to the Third Reading of the Bill in the hope that the promoters and those who are interested in the Bill on both sides may prevail upon another place to make good with acceptable words the hiatus which is left. Certainly, the Order for Third Reading stands, and we should proceed with that.
It will be within your recollection, Mr. Speaker, that the fault for the muddle does not lie on this side of the House. We on this side tried very hard to get hon. and right hon. Gentlemen opposite to accept a reasoned and, as we thought, a very proper Amendment. They refused to do so, and even when the opportunity came to them to put in the proposed words instead of those which the House in its wisdom had deleted, the other side still voted against them. Therefore, the wrecking of the Bill and the fact that it is now nothing more than a piece of nonsense, is due entirely to Members on that side of the House. That being so, would it not be unfair if the House now invited another place to make good what has happened and to reverse the decision of the House today?
I cannot say what action another place will take, and I am not concerned with how this contrary decision was arrived at by the House. I have been asked to advise what I think is the best course, and I think that the best course is to proceed with the Third Reading. Of course, anything that is put in the Bill in another place would have to come back here for the agreement of the House, and the House would then have an opportunity of discussing the words again.
If it be your Ruling, Mr. Speaker, that we proceed to the Third Reading, it would have to be the Third Reading of the Bill, as amended. The point on which I should like your guidance is this: How would it be possible for any Member, on either side of the House, to address you on the Third Reading, since the speeches must be confined to the Bill as it then is; and since the Bill is in such a nonsensical form now that it cannot possibly be spoken on, surely the House is in an impossible position in attempting a Third Reading, since no Third Reading is possible?
I should like to reply to the hon. Member for Wigan (Mr. R. Williams) who asked the question. It seems to me that if there is very little now left which can be usefully discussed on Third Reading, that is perhaps an argument which may appeal to the House for doing it either formally or very quickly, so that other business may be proceeded with.
On that point of order. If we proceed to the Third Reading, the House will be dealing with a Bill without any sensible part in it—the operative part would have been taken out. You said on the Report stage, for instance, that if the Amendments to the Schedule were all carried, quite obviously that would defeat the Bill and that would be that. By analogy, exactly the same has happened. The House has made a decision on Report stage. It is not just a case of having a Bill without a decision; the House has made a decision. The decision is that the words in the Bill from line 10 to line 22 shall be taken out. Therefore, the House has formed its opinion and registered its opinion on the words that were in lines 10 to 22, and they have been deleted.
The House has also refused to adopt the compromise proposal which we on this side put forward. Therefore, what it has done is to reject the compromise proposal and to reject the alteration to the Bill. The result is that what the House has done on Report stage is exactly the same as it would have been if it had rejected all the items in the Schedule separately, and that is to reject the Bill altogether. Therefore, to allow it to go forward further now, the House having registered its view to the effect that the Bill should not go forward, would be contrary to the purposes of the House and would defeat the views registered by the House.
Further to that point of order. Is not the argument which the hon. and learned Member is now advancing not an argument on a point of order but related to giving the Bill its Third Reading and ought we not to proceed to debate whether to give the Bill its Third Reading?
I wish to say to the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) that the two matters to which he referred are not in pari materia at all. The decision to rule out of order the list of Amendments referred to the point of whether the Amendments were in order or not. Once the House has taken charge of the Bill—and the present position of the Bill is due to the House and to no decision of mine—different considerations apply. I think the best course now is to proceed with the Third Reading.
May I put a point to you for the guidance of the House? It is a well-established rule that in the course of a Third Reading debate there shall be no reference to what is not in the Bill. Would you, as a very special concession, in order to enable a debate to continue on something like sensible lines, allow a limited reference to what is not in the Bill, so that we could have a rational discussion?
I beg to move, "That the Bill be now read the Third time."
In moving the Third Reading of the Bill in its rather unexpected and rather vacant form, I think it should be said that there is no doubt that when the House was proceeding to the first Division on Report stage everyone was under the impression that he was voting on all three Amendments together. [HON. MEMBERS: "No."] I do not think anyone imagined that we were only voting on whether "In" should be substituted for "For." I suggest that if the Bill goes forward to another place those who may feel like introducing an Amendment will take note of what was the undoubted intention of this House on the occasion of the first of the three Divisions.
I think the House showed quite clearly in that Division its view that the Bill ought to contain the words as written in the Bill and not the Amendment suggested by the Opposition. During the Report stage I suggested that the Amendment suggested by the Opposition should be considered. By sending the Bill forward in its present form special point is given to the question of full consideration of the compromise proposals because a vacant place is there ready for the insertion of the compromise proposals if after consideration they are found to be desirable and better than what was in the Bill.
As I said at the time, I was not able to do more than say that I would consider the alternative put forward because it was only tabled on the Order Paper this morning. That does not prevent me from saying that it will certainly have full consideration, and the position is now materially helped because the Bill goes forward in an entirely non-controversial form, able to receive whatever Amendment mature consideration may ultimately dictate.
Hon. Gentlemen opposite have on several occasions this afternoon referred to the helpful nature of their proposals, and they have in some respects been helpful though perhaps rather lengthy. I should like to point out however that all the Amendments they tabled would, if carried, have completely wrecked the Bill. Although only one was selected, one cannot forget the very comprehensive nature of the Amendments which they originally proposed, one of which was to delete—
Further to that point of order. As the contents of the Bill as it now is have been ruled by you, Sir, to be nonsense, will any kind of nonsense be in order, or must it be specific nonsense?
I have not said that the Bill is nonsense; I merely said that one hon. Member said it was, and I was quick to disclaim any responsibility for the result of the action of the House.
Further to the point of order. We are now coming to terms about the Bill. Having lost a Division the promoter of the Bill is seeing reason. May I ask for your Ruling, Sir, on this: the Bill as it stands provides in the heading that it is a Bill to
Modify certain enactments relating to the burden of proof in criminal proceedings…
and it sets out items which show that we are entitled to deal with the proposals for modification affecting matters in the Schedule.
Hon. Members must themselves try to keep within the rules of order in this peculiar state of affairs, and though it is not for me to suggest what they should or should not say, it is for me to say that they should keep in order, and to keep in order they should confine themselves to what is in the Bill.
I was not digressing so far as you might have imagined, Mr. Speaker, when I was referring to Amendments which had not been called because I was anxious to lead up to one very important element which still remains in the Bill —the Schedule. Hon. Members opposite sought by a series of Amendments to eliminate the whole Schedule. At least we still have the Schedule, which remains unimpaired. I should like to make some reference to the suggestions which have been made from time to time.
On a point of order. I am really almost distressed to interrupt the hon. Member, but he says that at least the Schedule is there and that he has got that much, but when one reads the Schedule one sees the words: "Session and Chapter," "Title" and then a term which now has no meaning—"Relevant provisions," without any indication of what they are relevant to, and under that heading there are the words:
Subparagraph (4) of paragraph 3 of the Schedule from 'every person' onwards,
without any observation at all. I submit that the hon. Member is out of order in addressing the House on a Schedule which is now meaningless.
To make the matter clear beyond doubt, perhaps I might refer only to the first and second columns of the Schedule, about which there can be no doubt whatsoever. It is in regard to the titles of the Bills which are contained in the Schedule that I wish to speak now. It has been suggested that the only Acts which have been included in this Schedule are those of the 1945–50 Labour Government, and the inference drawn from that fact is that this is therefore a party Bill. I am glad of this opportunity to inform the House that that never was my motive. As I have always tried to make plain, every Act containing presumption of guilt clauses has been separately examined and a decision has been reached on its merits.
Those decisions were made without regard to the date of the introduction of the Bill or its passing into an Act. I was distressed when I found that the final list proved to contain Acts which were all passed within the period 1945 to 1950. My distress was such that I went over the whole list again, as I felt that it would be advisable to put in one or two earlier Acts in order to avoid that very impression. Then I thought that that would be a foolish thing to do, because we were concerned with doing what we thought to be right and I felt sure—as I still do—that I could convince hon. Members on both sides of the House of the sincerity of my intentions in this matter.
By way of an example I should like to mention two pre-war Acts which I could have included but which it would have been obviously wrong to include. The first is the Official Secrets Act.
On a point of order. While your attention has been engaged on other matters, Mr. Speaker, the hon. Gentleman has again spoken of Acts which are not referred to in the Schedule. I submit that he is out of order in doing so and also that he is not keeping to the undertaking which he gave to you, that he wished to move the Third Reading in a short speech.
When I last heard the hon. Member, he was in order and was talking about the Acts which are scheduled here. That is perfectly in order. If I may give a word of advice to the House in this situation, I think little is to be gained by a lengthy discussion at this stage. I can only counsel the House. I would advise hon. Members to get through these formal stages as quickly as they can.
We are only too anxious to accept your advice, Mr. Speaker, which is obviously one way in which the House can proceed. Our difficulty is this. It is obvious that, by a majority, the House has rejected the real intent of this Bill, and nothing but a skeleton is left.
If we permit the Bill to go to another place without a Division, or without some other attempt to prevent it from reaching the Statute Book, we may not be doing the right thing, in view of the decision reached by the House. On the other hand, if we allow it to go to another place, because there are other Bills to follow this afternoon in which we are interested, we might find that another place made such Amendments to it that the decision of this House would be frustrated; because, once the Bill leaves the House, we have no further control over it whatever.
Surely one is entitled to draw this inference—and I do not want to make any party point—that the House first of all voted on the first Amendment and there was a majority to leave the word "for" in the Bill. I refer to that only as part of history. Then there were two Divisions, one with a majority for leaving words out and the next with a majority against the proposed words being inserted. I certainly make no comment on the present form of the Bill, but if it goes to another place in this form, surely it will be open to Members of another place to try to find a form of words acceptable to the whole of this House or to a majority of it. But whatever they do, the right hon. Member for Colne Valley (Mr. Glenvil Hall) would not be right in his contention, for whatever they propose to put into the Bill, the Bill will come back to this House.
But it would come back to a very differently constituted Chamber from this. We have to take the fact—and it is a fact—that the House has deliberately rejected the operative part of the Bill. I realise that a vote was taken on the first Amendment, but if we had then realised that we should not have an opportunity of voting on any of the others, we should have put it to you, Mr. Speaker, that we should vote on something much more substantial than that of inserting the word "in" instead of the word "for." But that happened to be the first Amendment on the Order Paper and we voted on it, firmly under the impression that we should be permitted subsequently to vote on something really substantial, dealing with the real purpose of the Bill. We are grateful to you, Mr. Speaker, for allowing us to register our view on something which was substantial.
The right hon. Member for Colne Valley (Mr. Glenvil Hall) is in error when he says we should lose control of the Bill. It is true that we have no control over it while it is in another place, but any Amendment made by another place must come back to this House. I can see nothing upon which I can rule in the fact that when the Amend- ment comes back there may be different hon. Members in attendance in this Chamber. It is still the House of Commons.
For those reasons I adhere to what I suggested. If the House gives a Third Reading to this Bill, it may be that in the intervening period some form of words may be found suitable to both sides of the House. That I cannot say, but at least the House will not be parting with control of the matter.
If I may be allowed to continue, I would remind hon. Gentlemen that I was trying to show the eligibility of the Acts included in column 2 of the Schedule by demonstrating that there were one or two somewhat similar Acts—similar in that they contained much the same provisions—which I did not include for reasons which will be evident to the House, and thereby show why the particular Acts have been included. One such example is the Washington Treaty Act, which would make it an offence—
With great respect, Mr. Speaker, may I submit this to you, because I think it is important that the House may know what we can consider in this Third Reading debate? There are two possible views. First of all, I have always understood that in a Third Reading debate one could refer only to what is in the Bill. There is nothing in this Bill at all because there is a complete blank, and the Bill makes nonsense, and so I submit that it would be perfectly proper to rule that one can raise nothing, and there can be no debate. That is one view.
The other possible view is surely—and this is the view on which the debate has proceeded so far—that as there is nothing in the Bill, and the Bill makes nonsense, and the promoters want to send it to another place so that another place can put something in it, therefore it must be relevant in this debate to refer to things that are not in the Bill, and on that view of the position I would suggest that the hon. Member for Altrincham and Sale (Mr. Erroll) has quite rightly referred to the Official Secrets Act, the Washington Treaty and various other things.
I would submit that all hon. Members must logically be able to refer to any single subject they like, because unless this debate is completely at large and every Member has the right to suggest what should go into the Bill, there is nothing that anybody can say either in support of or against the Third Reading of the Bill.
Further to that point of order. It really cannot be quite like that, can it, Mr. Speaker? After all, this is a Bill dealing with criminal proceedings, and, as I understand it, it expressly provides that
Nothing in this Act shall affect any proceedings begun before the passing of this Act.
We cannot debate anything that is not in the Bill, but as it contains nothing, that must be a proper subject for debate.
Mr. Hilaire Belloc wrote a delightful essay on nothing. I presume that the hon. and learned Gentleman the Member for York (Mr. Hylton-Foster) is suggesting that it would be in order to read that to the House. I shall forbear, because that might be in striking contrast to some of the discussion we have had. Now—
I wish to finish my Third Reading speech by saying that we have an admirable opportunity in the very vacancy of this Bill to go ahead with the further consideration of the disputed matters which I offered to undertake. If we could now have the Third Reading of this Bill, it would enable us to proceed a little more quickly, and allow a little more time for the next Measure, in which many hon. Members are interested.
I think it would be very inadvisable for this House to give this Bill its Third Reading. There are certain Members of another place who from time to time take delight in commenting upon the work that we send up to them from this House, and I can imagine no better example for them to found such remarks on than this Bill if it goes to them in its present form.
This is a Measure which we have now been discussing for the whole day, and by the various Divisions it has taken the House has shown that it has found great difficulty in making up its mind as to what it really desires in the Bill. We are now left with a Bill which certainly cannot at this stage of its existence be held up as an example of what over 100 years ago our ancestors called the collective wisdom of the country as represented by the decisions of the House of Commons.
I think that this is an example that we ought to have in front of us because, as one who is very jealous for the reputation of this House, I have been distressed on recent Fridays at the way in which we have gradually drifted into the position that we have finally reached this afternoon. A fortnight ago we had a Division of 38 to 28 on a matter of great import on the Defamation (Amendment) Bill which landed us in difficulties, which fortunately were solved by you, Mr. Speaker. This afternoon we have reached certain decisions on a series of Divisions which are quite unworthy of the House of Commons. I will leave that with this remark. If Private Members' time is to be preserved for the House of Commons, more serious attention to the issues before the House will have to be given by Private Members than has been given on recent Fridays.
This is a very important Bill. It deals with a very important part of the liberty of certain citizens of the country, drawn from a comparatively small class, but none the less liable to very heavy penalties under various Acts of Parliament if they offend against the provisions of the existing law. This Bill is an effort by the hon. Member for Altrincham and Sale (Mr. Erroll) to relieve them to some extent of the duties that the House expected them to perform under the various Acts which are listed in the Schedule.
These provisions were inserted in these various Acts appearing in the Schedule as a result of careful consideration by the last Government. Most of them were debated by the House at some length, and with some heat and passion, during the period between 1945 and 1950. The hon. Gentleman always took the line that was embodied in this Bill as originally drafted, and I think contested almost all the Sections which now appear in the Schedule of this Bill. He held that view tenaciously, and he advanced it with considerable force on every occasion upon which he spoke. On those occasions in that Parliament the House was generally against him on every issue now embodied in the various Acts. Now he comes along to ask for a certain modification which has not met with the approval of the majority of people voting.
I suggest that this House should not now, on a matter dealing so specifically with the liberty of the subject, albeit only a limited class of subjects, leave that to another place. This House is the appropriate place for matters of great import like this, where the liberty of the subject ought to be quite clearly defined, and we should face up to the responsibility of dealing with such matters appropriately and in fixed terms.
I am bound to say that one would almost wish to be in another place instead of dreading the possibility perhaps of finding oneself there. I remember a very distinguished Member of this House who, when we sat temporarily in another place, by their Lordships' indulgence, when this place was out of commission, saying that he never expected to place his seat on one of those red benches. He was one whom I thought would probably end up there.
We have to take the responsibility here of safeguarding the liberty of the subject, and this House today must not fail to discharge that duty in its consideration of this Bill. Therefore, I certainly hope that the House will not consent to send this Bill to another place. Perhaps next year the hon. Member for Altrincham and Sale, if not himself successful in the Ballot, may possibly persuade one of his hon. Friends who is successful to introduce a Bill which will have, as a result of the much longer consideration which that will give for thinking this matter over, the blank now in it more appropriately filled in.
You will realise, Mr. Speaker, that I have been the subject of a treating order made by my hon. Friend, who really should have known better. I suggest to the House that the appropriate thing to do now is for the hon. Member for Altrincham and Sale to withdraw this Bill or for the House to reject it, so that it shall not go to another place to call forth ribald comments which could quite justifiably be made if it was presented there.
I welcome some parts of the speech made by the right hon. Member for South Shields (Mr. Ede). I think hon. Members in all parts of the House must deplore the small attendance of hon. Members who are present at Private Members' business on Fridays, and the small proportion of the House which takes part in the decisions then recorded on matters which are often of considerable importance.
This Bill, although it relates to a small category of people, is nevertheless of importance to them inasmuch as it affects, or was originally intended to affect, the criminal law of the country. It is very regrettable we should have this thin attendance. On that point, and in relation to the Bill, I would say to the right hon. Gentleman that the reason we have such a thin attendance today is probably that until this morning no Amendments to the Bill appeared on the Order Paper. Does the right hon. Gentleman wish to intervene?
The right hon. Gentleman has been very helpful in that respect in the last few minutes. I am sure that was not the purpose of his intervention, nor is it the purpose of what I want to say. The first we knew about the Amendment which leaves a gap in the Bill was when we saw it on the Order Paper this morning. I am sure that no discourtesy was intended but the difficulty in which that put us will be appreciated, and the fact that so few hon. Members are present is presumably due of the fact that it was not realised that these matters would be raised. There was also a general impression today that the three Amendments were being debated together and that there would be one Division. [HON. MEMBERS: "No."] I am putting that forward not as the unanimous view of the House but as my own view. I believe that was why certain hon. Members who would otherwise have stayed had gone home.
I would point out to the hon. and learned Gentleman the Member for Kettering (Mr. Mitchison) that either there is a gap in the Bill, in which case it is in order to discuss the gap, or there is no gap and "the following words" then precede the gap and next words which follow, in which case a substantive Amendment to 12 Acts of Parliament is made, and I should not find it difficult to speak for a considerable time on that.
I was trying to address a serious argument to the House when the points of order were raised. We know what has happened, but it would be deplorable if, when the House has indicated its desire that a Measure of this nature should go forward, the Bill should not go to another place where no doubt the ingenuity of the Members of that place would insert words acceptable to this House.
I do not agree with the right hon. Gentleman the Member for South Shields, who said that it was not appropriate that the Bill should go forward on Third Reading because it affected the liberty of the subject and that that was peculiarly a matter for this House. It is a matter on which the House must always hold very clear and carefully considered views, but I should not describe it in the way one describes financial business, as something peculiarly within the purview of this House.
Indeed, throughout recent history another place has shown the very keenest interest in Bills of a legal character like this. It is in relation to Bills which might be described as legal Bills that another place has made some of its most valuable contributions to our legislation. I submit that this is peculiarly the sort of Bill in its present form which ought to go forward to another place which will have almost unfettered discretion as to what it will put into the Bill. We have indicated by the long Title of the Bill and by the framing of the Clauses that we consider that an Amendment of the law respecting the prosecution of directors is desirable. That is in the Bill, and we have—
I am following the hon. Gentleman's argument very closely and it is of very considerable weight. I am sure that the whole House appreciates that. The hon. Gentleman says that it is the intention of the Bill to do certain things in relation to the criminal law. I am sure that he would be the first to agree that if we do anything in relation to the criminal law we must express ourselves with precision. Would he indicate what the Bill, in its present form, does with precision in relation to the criminal law?
Yes. The Bill says with the greatest precision Chat it is desirable that for each of the scheduled provisions, which are set out with great particularity in the Schedule, there shall be substituted "the following words." It is for members of another place to say which "following words" should be substituted for each of those scheduled provisions. I do not know what greater particularity the hon. Member can ask for. The whole matter is straightforward. If their Lordships desire some guidance to help them, they have the very extensive debate which has taken place in this House today to assist them in their deliberations. I have no doubt that they will peruse with interest not only what hon. Members have said, but what hon. Members have done.
Surely the hon. Gentleman remembers, when he explains to the House that the Bill proposes the substitution of "the following words," that the following words are in subsection (2):
Nothing in this Act shall affect any proceedings begun before the passing of this Act.
We should like to know what effect those words will have.
I do not want to get out of order, but the hon. and learned Gentleman has already raised a point of order as to whether there is or is not a gap in the Bill. If there is no gap in the Bill, the purpose of the Bill is to substitute before "any person" the words to which the hon. and learned Gentleman has just called attention. Whether it will be found that this is illuminating, or of any assistance in dealing with these matters is not a point for me to comment upon. This is the answer to the hon. and learned Gentleman's intervention. If some of his hon. Friends voted in the third Division and brought about this interesting result, I presume that that is what they intended. I was saying, when I was interrupted—
Will the hon. Gentleman accept this proposition? If there had been sufficient of his hon. Friends present this afternoon there would have been no difficulty at all. Will he bear in mind also that I did my best to ensure that as many of his hon. Friends as possible should be in the Chamber for the debate? I took every possible step at my disposal to bring about that result.
Yes, and the hon. and gallant Member's assistance included stepping out of the Chamber as soon as he had called a count. It is a matter for regret that the only interest he took in this Bill until about 3 o'clock was to call a count on three occasions.
When I was interrupted by the various points of order, I was going to refer to some words that the hon. and learned Gentleman the Member for Leicester, North-East (Sir L. Ungoed-Thomas) said. He has advanced some interesting arguments, and if I may reply to them shortly, I think I can deal with the substance of them. The reason we feel that there should be some alteration in the words of the scheduled provisions is that it appears to us that there are three distinct periods in relation to these provisions.
There is the period up to 1946. It is perfectly true that certain provisions of a character similar to these were included in various Acts of Parliament, but to my mind those are exceptions. They were not the common form provisions put into every Act of that kind. They were put into certain Acts where it was felt that there was a particular reason why they were inserted, and the particular reason in those cases was that the accused was the person who had it in his power peculiarly easily to establish his innocence.
I should like at this point to refer to something which was said by the hon. and learned Gentleman the Member for Brigg (Mr. E. L. Mallalieu). He has accepted that point of view. In the early stages in Committee he said that a distinct feature of the pre-1946 legislation was that it referred to people in whose knowledge it peculiarily was that they were innocent, whereas today he substitutes for "knowledge" the word "power"—in whose power it peculiarly was to show they were innocent. That is the true distinction, and if it is peculiarly for the accused to show his innocence, it can be right to have a special provision to put the burden of proof upon him.
I have already instanced the class of case with which this deals, and perhaps the easiest is the case of licences. It is quite easy for an accused to produce his licence and say "Here is my defence" and that is the end of it. That is better than for the prosecution to have to look through the registers of the United Kingdom to see if that man has taken out a licence. As I say, that is the easiest of cases by way of illustration, but there are harder ones, particularly when one comes to border-line cases.
From 1946 on we made the provision that is in the Schedule to this Bill and distinguished between them and those that went before. From 1946 onwards it became a common form provision and was put in a great many Bills dealing with company directors. As the right hon. Gentleman the Member for Colne Valley (Mr. Glenvil Hall) has said, that was fiercely contested from the Conservative side of the House, and those debates seem to have borne some fruit, because after 1949 the form of words contained in Bills before that has not figured in any Act of Parliament.
It is not only an isolated case like the Rag Flock and Other Filling Materials Act, where it was inserted. There were
three Acts of Parliament relating to directors of public companies and criminal offences by them passed by the last Government during the Session 1950–51. They had obviously begun to adopt the new form of words with which I have no doubt the hon. and learned Member for Leicester, North-East is familiar. In case, however, he is not may I read it to him:
Where an offence punishable under this section which has been committed by a body corporate is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of any director…he…shall be deemed to be guilty of that offence…
I am reading from the Rivers (Prevention of Pollution) Act, 1951. It is not an Act with a Schedule. That is the point I am arguing. I was pointing out that the Schedule ends at 1949. Up to 1946 there was the practice of putting the Schedule provisions into Acts of Parliament. From 1949 there has been no practice of putting them in because the previous Government decided, probably from experience, that it was not the best form of words.
The intention of this Bill is to say: let us go back and deal with that intervening period 1946 to 1949 and make in the Acts passed in that period a change which will bring them into conformity with the formula which has now become the standard form. If I may stray an inch out of order for a moment, that is the reason why we did not feel happy about accepting the compromise proposal of the hon. and learned Gentleman which, I hasten to say, was in itself a valuable and attractive proposal. I do not hesitate to say that in some respects it was superior to the form of words which has become standard since 1949.
I think he will agree with me, however, that it is undesirable to have different criteria for proof or that we should keep on changing it. There is an old dictum in relation to the civil law that it is more desirable that it should be certain than that it should be just. While I should be the first to agree that this does not apply with anything like the same rigidity to the criminal law, nevertheless it has its application in that sphere also.
Therefore, in this Bill, to which I ask the House to give a Third Reading—although it is obvious that it will have to come back here for further consideration—I would say to hon. Members opposite, some of whom obviously feel rather strongly about the conditions, that there is a real point affecting the criminal law and the rights of people who may come within its purview. It does not confer any privilege on directors. It merely puts them back into the ordinary common law position, slightly modified. Assuming that in another place the words which we proposed originally were reinserted, they would be brought into exact conformity with the words which have become common law since 1949. Therefore, we should have only two classes of case—
If I had persuaded hon. Gentlemen opposite, I should be most anxious for that, but may I resume my argument? I want to make this point so that hon. Gentlemen may have a chance of thinking it over and of regarding it as a genuine Private Member's Bill which ought to be given their assent when the dust of warfare has settled down.
The hon. and learned Gentleman will appreciate that we pressed hard a very reasonable proposal before the decision of the House was taken. Our proposal was rejected, as also the proposal brought forward by the hon. and learned Member. That, of course, puts an entirely different complexion on the situation.
The hon. and learned Gentleman is making a point which superficially is valid, but he knows as well as I do what happened and I was trying to get at the substance of the matter in the brief time allowed me. If we did what was proposed, there would be two classes of case, the pre-1946 legislation and the special—