§ House in Committee (according to order).
§ (The Earl of ONSLOW in the Chair.)
§ Clause 1.
§ *LORD JAMES OF HEREFORD
moved to add the following sub-sections in Clause 1:—(4) In any prosecution under this Act evidence shall not be admissible to show that any such gift or consideration as is mentioned in this section is customary in any trade or calling; (5) For the purposes of this Act where it is shown that any such gift or consideration as in this section mentioned has been taken, given, or offered without the assent of the principal, the burden of proving that such gift or consideration was not taken, given, or offered corruptly shall lie on the accused.
He explained that this Amendment was not really his own. When the Bill was under consideration in 1904 a question was raised as to the meaning of the word "corruptly" at the commencement of the clause, and which governed the whole clause. It was suggested that there would be a difficulty in construing the word, and on that being pointed out to the Lord Chancellor the noble and learned Lord met the objection by proposing that the word "corruptly" should be defined more strictly by the two sub-sections he (Lord James) now brought forward. The subsections provided that in any prosecution under this Act evidence should not be admissible to show that any such gift or consideration as was mentioned in the section was customary in any trade or 588 calling; and also that for the purposes of the Act, where it was shown that any such gift or consideration as in this section mentioned had been taken, given, or offered without the assent of the principal, the burden of proving that such gift or consideration was not taken, given, or offered corruptly should lie on the accused. Those sub-sections which his noble and learned friend the Lord Chancellor offered, and which were accepted, controlled the word "corruptly," and he (Lord James) had only copied his noble and learned friend's words in his Amendment. He hoped that in the circumstances the Amendment would be accepted.
In Clause 1, page 2, line 11, after the word 'Act' to insert the paragraphs—
'(4) In any prosecution under this Act evidence shall not be admissible to show that any such gift or consideration as is mentioned in this section is customary in any trade or calling.
'(5) For the purposes of this Act where it is shown that any such gift or consideration as in this section mentioned has been taken, given, or offered without the assent of the principal, the burden of proving that such gift or consideration was not taken, given, or offered corruptly shall lie on the accused.'"—(Lord James of Hereford.)
§ THE LORD CHANCELLOR (The Earl of HALSBURY)
My Lords, I am afraid I must object to the introduction of the sub-sections contained in the Amendment, because I believe it is equal to moving that the Bill be read this day six months. I do not disavow that the object with which these words were designed was a good one, and I should have been glad to give effect to the Amendment, but it cannot be doubted that the sub-sections have created, and are still likely to create, opposition elsewhere. In the interests of the passing of the measure I adopted, with one exception, all the Amendments that the Grand Committee made in the Bill in the House of Commons. I cannot help feeling that if your Lordships were now to re introduce sub-sections which the Grand Committee struck out, the fate of the Bill would be tolerably certain. I am extremely anxious that the Bill, which has now been brought before Parliament for the third time, should pass, 589 even at the sacrifice of what may be regarded as a more perfect form of words. If it is found in practice hereafter that there is any difficulty owing to the lack of the words suggested by my noble and learned friend it will be possible to try to amend the measure. I do think, in view of the consensus of opinion that some legislation is absolutely necessary on the subject, it being clear that the amount of corruption is increasing day by day, a special effort should be made to pass this measure, even though we cannot adopt what would be regarded as the most perfect form of words. I am not alone in that opinion. I have here two letters which, with your Lordships' permission, I will read. The first is from the Law Society in London, and is as follows—My Lord,—The Council of the Law Society observe that Lord James of Hereford has moved Amendments to the Prevention of Corruption Bill, the effect of which appears to be (1) To exclude evidence of custom to rebut a charge of corruption and to relieve the prosecution from the burden of proof of corruption in certain cases; (2) To make unnecessary the Attorney-General's consent to prosecutions.The Council hope that your Lordship will see your way to oppose these Amendments. There appears to be no special reason why prosecutions under the Act should not be conducted in accordance with the existing law as to evidence. It is impossible to say now that there may not be a case in which evidence of custom would be material, and if such a case should arise it would be unjust that evidence of custom should be excluded. Nothing would tend more to discredit the Act than a conviction obtained owing to the statutory exclusion of material evidence.The Attorney-General's consent to prosecutions under this Act has been almost universally approved of, and without such protection the interests of the public cannot be protected against malicious and blackmailing proceedings.That letter is signed by the president. The second letter I have received is from the Incorporated Law Society of Liverpool, and is as follows—My Lord,—The Prevention of Corruption Bill has been under consideration by the Committee of the Liverpool Law Society, and as introduced by your Lordship into the House of Lords it has their entire approval.The attention of the Committee has, however, been called to certain Amendments which it is understood will be moved by Lord James of Hereford, and the effect of which, if adopted, would be—(1) to render evidence of custom in any trade or calling inadmissible in the case of a prosecution under the Act; (2) to throw 590 upon the accused the onus of proving that any gift taken, given, or offered without the assent of the principal was not taken, given, or offered corruptly; and (3) to strike out the clause providing for the Attorney or Solicitor-General's fiat being obtained.The Committee feel very strongly that these Amendments are open to the gravest objection for the following reasons. The effect of the Bill is to create a statutory crime, and as the word "corruptly" governs the offence aimed at by the Bill, evidence of a custom known generally to both principal and agent may often have a vital bearing upon the question of corrupt motive. It would be most unfair to the accused to deprive the Court in which the charge is to be heard from giving such weight as it may think fit to evidence of this character. The payment or receipt of a commission such as was expressly authorised by Section 10 (1) of the National Debt (Conversion) Act, 1888, where it would often be impossible to obtain or produce evidence of the formal assent of the principal, might involve the conviction, followed by fine or imprisonment, of a person perfectly innocent in intent.The proposed Amendment throwing upon the accused the onus of proving his innocence would, in the opinion of the Committee, destroy the effect of the word "corruptly" in Clause 1(1). It is of the essence of the Bill that a gift should in the first instance be proved to be corrupt. This is in accordance with the spirit of English law, and grave injustice might result from throwing the onus upon the accused of proving his innocence possibly years after the event, when evidence may be difficult or impossible to obtain. Perhaps the strongest objection to this proposal is that it would give most dangerous facilities to blackmailing charges.The Committee are strongly of opinion that the provision requiring the fiat of the Attorney General or Solicitor-General to the prosecution should be retained. This would be an obviously inadequate provision if the onus were thrown upon the accused of proving his innocence. Even under the Bill as introduced it would only partially safeguard innocent persons against charges which unscrupulous persons would find so easy to make, and which would often be so difficult for an innocent person to rebut.It must not be forgotten that the mere formulating of a charge is calculated to very seriously injure an innocent person, especially in the case of a professional man, and anything which in any way facilitates blackmailing is strongly to be deprecated.The Bill as introduced must command the sympathy and approval of all who are desirous of seeing the great evil of secret commissions effectually grappled with. The introduction of such provisions as are indicated in the proposed Amendments are, however, so manifestly unfair that they would not only house strenuous opposition to the Bill but would, if the Bill becomes law, go far to destroy the moral effect of the Act. Such an Act, to be effective, must accord with a general sense of justice. If it goes beyond this it is foredoomed to failure.591The Committee therefore trust that the Bill may be allowed to become law without amendment.That letter is also signed by the president of the society. The views of two such bodies as the Law Society of London and the Law Society of Liverpool must command wide attention, and I believe that if the Amendments standing in the name of the noble and learned Lord, particularly the one with which we are at present concerned, are passed, the Bill will never become law. For these reasons I must resist the Amendment.
§ LORD AVEBURY
said that if he understood the Lord Chancellor correctly he was most distinctly in favour of the Amendment moved by Lord James, but opposed it on the ground that it would probably prevent the Bill from passing into law. He, for one, and, he believed, the commercial community generally, would rather get half a loaf than none at all; but, at the same time, they felt very great doubt as to what the word "corruptly "meant. Suppose an agent, acting for his principal, took a commission, or suppose a housekeeper took a commission from a shopkeeper, in both cases without the knowledge of the principal, would that secret commission be punishable under the clause? If the word "corruptly" would prevent its being punished, so far as they in the City of London were concerned the Bill would have nothing like the good effect which they had hoped it would have. It might be true that two or three years ago the Grand Committee in another place threw out these particular words, but he believed there had been a great advance of opinion among the commercial community since that time, and he could not help feeling that if the words were inserted and the Bill went again before the Grand Committee, there was every prospect that the Grand Committee would allow them to stand. But if the Grand Committee did throw the sections out the House of Lords would have done its best in the matter by inserting them, and the Grand Committee of the other House would have to take the responsibility of their omission. Therefore, so far as he was concerned, he would have been glad it the noble and learned Lord could have seen his way to accept the Amendment.
§ *LORD JAMES OF HEREFORD
wished to explain that the Law Societies should have turned their wrath, not on himself, but on the Lord Chancellor, for the subsections in the Amendment were not his They were drawn up by the Lord Chancellor in order to get rid of the difficulties which everyone foresaw would arise, and were accepted last year as a solution of a very great difficulty. But the Bill of 1903 did not contain these sub-sections; it went to the Standing Committee without them. Last year the Bill went down to the other House with the sub-sections in it, but never went before the Standing Committee. He thought the noble and learned Lord would find, on investigation, that the sub-sections had never been struck out by the Committee of the other House at all. He differed from the Lord Chancellor in thinking that the insertion of these sub-sections would prevent the Bill passing through the other House. His own view was that they would facilitate the passage of the Bill; but, in the circumstances, he would not press his Amendment.
§ THE EARL OF HALSBURY
I am much obliged to my noble and learned friend for what he has said. I only rise to put myself right with your Lordships. I have not had the opportunity of verifying what I said a year ago, but I think it is hardly likely I should have made the mistake he suggests. I find that a year ago I said—Your Lordships are familiar with the provisions of this Bill. I have taken means to ascertain the reception which the Bill met with in the House of Commons, and I have accepted, with one exception, the Amendments which were made in Grand Committee.I have not verified that statement since, but I can hardly believe I was mistaken in making it.
§ *LORD JAMES OF HEREFORD
said the would hand a copy of the Bill in question to his noble and learned friend, who would see that it did not contain the sub-sections the insertion of which he now moved as an Amendment.
§ Amendment, by leave of the Committee withdrawn.
§ Clause 1 agreed to.593
§ Clause 2:
§ *LORD JAMES OF HEREFORD
moved to omit Sub-section 1 of Clause 2, which provided that a prosecution for an offence under this Act shall not be instituted without the consent of the Attorney-general or Solicitor-General. He hoped the House would realise what that provision meant. However slight the offence, a person wishing to proceed under the Bill and prosecute, say, his domestic servant or agent where a small commission had been received, would be unable to proceed without the fiat of the Attorney-General. First of all affidavits would have to be obtained; those affidavits would have to be drawn up by a solicitor; the solicitor would then have to instruct his London agent, who, in turn, would proceed to the Attorney-General's chambers and submit them to the Attorney-General. He thought it extremely unfair to all parties that this obstacle to instituting proceedings should be inserted. The charge would be made on ex parte affidavits. There was no appearance of the accused before the Attorney-General. This provision would act as a great deterrent to any prosecution unless the amount involved was a large and serious one. Every subject in this country had a right to make an application to a magistrate, and having done so to prefer a bill of indictment to a Grand Jury. Why should this right be taken way under this Bill?
His noble and learned friend the Lord Chancellor had said that blackmailing was likely to take place if they did not have such a provision. They had had recent legislation on many matters in connection with which blackmailing undoubtedly went on, but the fiat of the Attorney-General had not been introduced. He ventured to think that this provision would lead to an increase of blackmailing, for a prosecutor could go to the Attorney-General, and, on an ex parte statement, get a fiat. He would then be able to shake it in the face of the person accused and say: "I have got the Attorney-General's fiat and have you in my power. If I tell the magistrates I have got the Attorney-General's fiat they will think that it is a charge of great importance" He would be able to say that the matter rested in his hands, because he 594 could stop the case if it was made worth his while. The Attorney-General's fiat would be one of the greatest instruments in the hands of the blackmailer. The Lord Chancellor had said that the subsections contained in the Amendment he (Lord James of Hereford) had moved to Clause I had been rejected in the House of Commons, and that if they were inserted now the Bill would be thrown out; but he would point out that this clause providing for the fiat of the Attorney-General went down to the House of Commons in 1903, and was submitted to the Standing Committee on Law, and, though supported by the full power of the Government and the Attorney-General, was rejected on the Motion of a Unionist Member, the Motion being supported by nine members of the Bar, including such men as Mr. Alfred Lyttelton, Sir Robert Reid, Mr. Lawson Walton, and others. The clause was struck out in the Standing Committee. Last year the Bill went down again with the clause in it, and the intimation was given to those who introduced the Bill that if they persisted in that clause the Bill could not proceed, and he was informed that it was in consequence of the Attorney-General's fiat being retained that the Bill was never proceeded with. He assured the noble and learned Lord on the Woolsack that he would never secure the passage of the Bill through the House of Commons if he persisted in this clause. He did not think anything had happened since 1903 to make the Attorney-General's fiat more popular with the House of Commons. Last year, when this matter was discussed in the Standing Committee of their Lordships' House, the Lord Chancellor referred personally to Lord Avebury and asked him what the commercial world thought of it. Lord Avebury informed the Lord Chancellor that the commercial world were all against this clause, and the Lord Chancellor said he would try and find some equivalent. He (Lord James) regretted that this year an equivalent had not been found.
To leave out sub-section (1) of Clause 2."—(Lord James of Hereford.)
§ LORD AVEBURY
said they were so much indebted to the Lord Chancellor 595 for again introducing the Bill this year that he would be very sorry to do anything to impede its passage into law; but he could not help feeling that if the noble and learned Lord had seen his way to accept the Amendment moved by Lord James of Hereford the Bill would be much more useful. This was not so much a question of law as one of practice. The bankers were at first disposed to think that the introduction of the Attorney-General's fiat might prevent some cases of blackmail, but on further consideration they came to the conclusion that the fears of blackmailing had been very much exaggerated, and that it would probably be found there was very little need for apprehension on that score. On the other hand, considering the great number of small cases, it did seem that the introduction of the Attorney-General's fiat would prevent the Bill coming into operation in ninety-nine cases out of every hundred. When they came to great cases, such as that of Whitaker Wright, no doubt the intervention of the Attorney-General was quite right and proper; but what they had hoped was that this Bill would lead to an immense number of small frauds being dealt with, but that could hardly be accomplished if the machinery was made so complex, difficult, and expensive as it would be under the clause as it stood. They could not help thinking that the Bill would be much more useful if the provision was omitted. Take, for instance, the case of the acceptance of secret commissions by servants. Was it really to be suggested that the Attorney-General would look into cases of that kind? If he did not look into them, but gave his fiat for a trial without investigation, then, indeed, a great scope for blackmailing was opened up. Then there was the question of custom. He was afraid that secret commissions had, in some trades, almost become a custom, and it was because they wished to strike a blow at, and eradicate that custom, that they wished to see this Bill come into operation. Therefore, he hoped the noble and learned Lord would see his way to accept the Amendment; but, if he did not, they would rather take the Bill as it stood than not get it at all.
§ THE LORD CHANCELLOR
I am extremely sorry I am unable to accept 596 the Amendment. After serious consideration, extending over a number of years, I cannot consent to give up the protection which I feel to be absolutely necessary for the public against blackmailing. My noble and learned friend talked of the right of the public to present a bill of indictment. Neither Scotland nor Ireland knows anything about private prosecutions. There they must be conducted by officers of the law, and so great was the scandal arising in England from the power of presenting indictments to Grand Juries that an Act of Parliament was passed, when I was young at the Bar, prohibiting people presenting an indictment before a Grand Jury without a preliminary inquiry before a magistrate. My noble and learned friend has been Attorney-General himself, and has had a very distinguished career as Attorney-General, and I cannot understand why he should distrust the Attorney-General so much. I do not suppose any Attorney-General would give his fiat for a prosecution without seeing the parties. He would not give leave to prosecute without any inquiry into the matter. Therefore, I think that part of my noble friend's observations may be dismissed. When I was Solicitor-General I was frequently called upon to give a fiat in certain cases, but I never considered that my duty was done until I had fully inquired into each case. I think the last place a person, who wanted to get a prosecution simply in order to solicit blackmail, would go to, would be the Attorney-General's chambers. The danger of blackmail is a real one, and one which ought to be provided against. I did say I would try and find some substitute for this provision. I have given a great deal of thought to the matter, and can find no substitute for the Attorney-General's fiat Therefore, I am afraid, I must adhere to the clause.
§ LORD DAVEY
was sorry to hear the decision at which the Lord Chancellor had arrived. Though not an absolute novelty, the provision in question was not to be found in the case of other offences which equally lent themselves to blackmail. Blackmail might exist wherever a person had it in his power to charge another with any criminal offence, but 597 they had not found it necessary to provide that no prosecution should be commenced in such cases without the fiat of the Attorney-General. He did not know of any case, except that of the Corrupt Practices Act, Where such a fiat was required in order to commence a prosecution. The Lord Chancellor had said that the subsections which Lord James of Hereford wished to introduce in Clause 1 had been struck out by the Grand Committee of the House of Commons, and that was used as a strong argument for not insisting on the insertion of the sub-sections in the present Bill. But it had been pointed out by his noble and learned friend, in moving the present Amendment, that this clause requiring the consent of the Attorney-General had also been before the House of Commons in two successive sessions, had been carefully considered in the Standing Committee on Law, and had been struck out. The majority of the lawyers in the House of Commons were opposed to the clause. He did not think any necessity had been shown for introducing it into the Bill, and he anticipated that if the Bill went down to the House of Commons with this clause in it, it would be again struck out.
§ LORD JAMES OF HEREFORD
pointed out that there was no precedent for setting up the fiat of the Attorney-General in regard to cases before magistrates sitting in petty sessions, who could only impose sentences of summary conviction. That was a perfect innovation in law, and would constitute a great obstacle to the working of this Bill.
§ Amendment, by leave of the Committee, withdrawn.
§ Clause 2 agreed to.
§ Clause 3 agreed to.
§ Clause 4:
said that when this Bill was before their Lordships last year he drew the attention of the Lord Chancellor to the fact that the instructions of many shipowners to their captains were not that they were not to take 598 commissions, but that any commissions they received were to be handed over to the managing owners, and a few days afterwards the noble and learned Lord brought in an Amendment to meet that evil. Another point had since arisen which he could best put before their Lordships by quoting a case which had occurred recently. A captain in the service of Messrs. Leylands, of Liverpool, came to grief with his spars in bad weather and had to put into Los Angeles. The junior owner, Mr. Winter, found fault with the captain for too much expenditure in the repairs, and told him he was to go, he having signed an agreement that his employment should be terminable with seven days' notice. When he asked for the money that was due to him the captain was told that he must go back to Liverpool for it. He was stranded and had to borrow money to return to Liverpool. When he reached that port he went to the office and asked for his money. He was told that he could not have it, and must wait till they communicated with the captain who had replaced him. The result was that a writ was issued, and Messrs. Leylands applied before a Judge in Chambers to have the case adjourned until they could communicate with the captain who was then on the ship. The Judge refused, stating that everything was perfectly clear. He treated the case as a hearing in Court and gave a verdict for the plaintiff with costs. What he wished to draw their Lordships' attention to was this, that it was a habit among shipowners when captains were dismissed to refuse to settle and keep them hanging on until finally the captain, coming near starvation point, had to accept a moiety of what was due to him. He did not think the money saved in that way went into the pockets of the shareholders, but into the pocket of the managing owner. He stated this case in the hope that some Member of their Lordships' House would, on the Third Reading of the Bill, bring forward an Amendment which would meet it.
§ Clause 4 agreed to.
§ Bill reported without Amendment, and re-committed to the Standing Committee.