Orders of the Day — Clause 1. — (Transfer of Burden of Proof in Certain Cases.)

Part of the debate – in the House of Commons at 12:00 am on 11th July 1952.

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Photo of Mr Gilbert Mitchison Mr Gilbert Mitchison , Kettering 12:00 am, 11th July 1952

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.] 12 noon.

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—