CLAUSE 4.—(Determination of disputes.) (Hansard, 19 November 1931)

§ Mr. ATTLEE
I beg to move, in page 3, line 26, after the word "department," to insert the words: or a Member of the Commons House of Parliament. I have little doubt that the Government will be able to accept this Amend- 1146 ment. It is quite familiar, has often been inserted in Acts of Parliament and it is clearly right that it should be inserted here. We have had no indication as to the category of persons to be appointed on this panel by the Lord Chancellor. I do not know whether these referees are to be persons of business experience or whether they are to be lawyers. I am aware of the large contingent of junior members of the Bar who are Members of the present House 1147 of Commons, and it would be a self-denying ordinance on the part of hon. Members of this House if they accepted this proposal. In a controversy on these trade matters no Member of this House should act as a referee. It is possible that the dispute may concern an industry which has been already debated, and as we have cut out Government Departments I think we should also cut out Members of Parliament from acting as referees. It is true that this taxation will arise from the decision of a Government Department and that that is the reason for their exclusion, but still as, theoretically, the constitution is not in abeyance, even under this National Government, and that the taxing authority is still this House, it is clear that no referee who is a Member of this House should be appointed as a referee by the Lord Chancellor.

Mr. HORE-BEUSHA
The exclusion which the hon. Member wishes to make is a little invidious, and I cannot understand why his suspicions should fall with such force upon Members of Parliament alone. The reason why Government Department officials are not to be referees is because a Government Department will be a party to the suit. If you are going to exclude certain categories of persons from acting as referees I do not see why you should confine the exclusion to Members of Parliament. You might exclude ministers of religion, or any other class of the community; and my hon. Friend will remember what happened on the Consumers' Council Bill, where it was sought to exclude profession after profession. I suggest that the Amendment is not necessary and that it does less than justice to the calling which we both follow.

§ Mr. RHYS DAVIES
I beg to move, in page 3, line 34, at the end, to add the words: Provided that the proceedings on any question referred to the referee shall be held in public. I feel that the case for this Amendment is very much stronger after listening to the last remarks of the Parliamentary Secretary. It appears now that the President of the Board of Trade may have in mind that a Member of Parlia- 1148 ment shall actually act as a referee. At any rate, a Member of Parliament is not excluded by the Bill. Let me draw the attention of the Committee to two or three points in favour of making the dispute which is to be brought before a referee, a matter of public interest. I feel sure that it is in the interests of the merchants themselves that the proceedings before a referee should be held in public.
So far, the right hon. Gentleman has not accepted a single suggestion from these benches, and I do not know whether I shall succeed in inducing him to relax a little from his rigid attitude. It is obvious the right hon. Gentleman expects some disputes in the administration of this Bill, because the marginal note to this clause is marked "determination of disputes." I can well imagine that there will be a number of disputes arising from the decisions of the Board of Trade in connection with this matter. Let me draw the attention of hon. Members to the point I want to make. Clause 4 reads: If any dispute arises whether any articles imported into the United Kingdom are articles specified in an order made under this Act. My Amendment provides that the proceedings on any question of such dispute referred to the referee shall be held in public. I have taken the trouble to find out the duties of a referee under other Acts of Parliament, and I have it on good authority that he is to be regarded as an arbitrator. In cases under this Bill he is an arbitrator between the merchant and the Board of Trade in a dispute which may arise on a decision of the Board of Trade. What is the definition of arbitration? Arbitration is an arrangement for taking and abiding by the judgment of a selected person in some disputed matter instead of having the case brought before the established courts of justice. It is germane to my case that both parties must agree to the submission of a case to arbitration. Under this Bill as drafted the only party to decide whether a case shall be submitted to the referee is the Board of Trade. I see my hon. Friend opposite shaking his head. Do I understand that, if the Board of Trade decides that the duty shall be 70 per cent. or 80 per cent. on certain commodities, that the merchant will be able to say, "I dispute 1149 the 70 per cent." and the case forthwith goes to the referee? If the hon. Member agrees, then I can conceive of no duty being imposed on any article whatsoever without the merchant disputing the amount of the duty, and therefore every case will be subject to submission to the referee.
The Committee should not allow this Clause to pass without the right hon. Gentleman telling us what type of person is to be appointed as referee. Is he to be a Free Trader or a tariffist? Is he to be a Liberal or a Conservative? What will be his remuneration? Will he be a person, for instance, who is biased in favour or against the co-operative movement J Co-operators are, of course, very large importers. Where will the referee sit? Will he sit at the Board of Trade to hear cases, or will be attend at a place under the auspices of the Commissioners of Customs and Excise?
In all industrial dispute arbitrations both employers and employed must, in the first place, agree to arbitration; otherwise the matters in dispute cannot go to arbitration. I have had the privilege of sitting in several cases of arbitration when there has been a dispute between employers and employed, and I have never yet come across a case where the employer alone could decide that the case must be submitted to a referee. Both sides must agree; otherwise, as I have stated, the case cannot be submitted to arbitration at all. I have here a list of Acts of Parliament under which that procedure, now suggested, is adopted already. The Acquisition of Land (Assessment of Compensation) Act, 1919, contains a definite provision whereby the whole of the witnesses' evidence shall be brought into the public eye. There is nothing that will create more suspicion in the minds of the trading community than the appointment by the Lord Chancellor of a gentleman to conduct proceedings and to give decisions on tariffs behind closed doors. There is no reason at all why the referee should not hear evidence from the Board of Trade, from the Commissioners of Customs and Excise, and from the merchant himself, but let it be done in public, so that the public may know exactly why the Board of Trade or the Commissioners of Customs have decided on a given duty.
1150 There is another consideration to be borne in mind. In this Clause the right hon. Gentleman is practically abrogating Clauses 30 and 31 of the Customs Laws Consolidation Act of 1876. I think I am right in saying that he is repeating in this Bill Section 11 of the Safeguarding of Industries Act of 1921. He does that, however, without remembering one significant fact. Under the Safeguarding of Industries Act of 1921 there must be a public inquiry before the duties are imposed. That ensures publicity before the duty is imposed. Now, however, the right hon. Gentleman, having repeated Section 11 of the Act of 1921 in this Bill, forgets that he imposes a duty first. Then the merchant may challenge him, and finally the referee holds an inquiry behind closed doors and decides on his own account which side in the dispute is right. I think therefore that we are entitled to ask him to concede this point to us.
We are informed that the Bill is only to last for six months. I think I am right in saying this, whether hon. Members believe in tariffs, duties, safeguarding, prohibition, or in Free Trade, one thing must be evident to all that this Measure will shortly prove whether tariffs will achieve the object which the propagandists of Protection have in view, or not. I, for one, will await with interest the working of this Measure to find out whether the contention of the tariffists is right or wrong. But I repeat that there is nothing better for the purpose of proving to the public whether this Measure can achieve the object in view, than to have all the proceedings in connection with it carried on in public. After all, what is wrong about holding a public inquiry to find out whether or not the Board of Trade has insisted upon too high a duty in the case of certain goods?
I think I have said enough to prove to the right hon. Gentleman that there is substance in this Amendment. I trust that he will not be as rigid with me as he has been with my colleagues. He has not, as I have already stated, conceded a single inch during the whole of this Debate. Now is his opportunity, as a good Liberal and a better Radical, to yield the point raised in the Amendment and to give to the public, if necessary, the evidence if given on oath in these 1151 inquiries, and to show the public, by reports in the Press and in official documents, exactly what is being done under the provisions of this doubtful Measure.

§ Mr. HORE-BELISHA
I have listened with sympathy to this great appeal for publicity but my hon. Friend seems to forget that the matters which he is asking to have decided in public are private and confidential. Customs officials would welcome this Amendment because it would discourage aggrieved persons from appealing, but we wish to do justice to aggrieved persons. Any person who disputes the justice of a claim made upon him goes to appeal and produces documents which are confidential to himself. If the parties to the dispute wish to have their arguments and their documents made public there will be no objection whatever to that being done. The hon. Gentleman's next point was that everybody subject to a tax would appeal. It may interest him to know that the number of appeals since the ad valorem duties were first introduced has not yet reached double figures. These matters work very smoothly; the Customs officials perform their duties with great consideration, and there has never been the slightest friction. I suggest to my hon. Friend that, if he wishes to allow private matters to remain private, he ought not to persist in this Amendment.

§ Mr. COCKS
I do not quite understand, even after the remarks of the Parliamentary Secretary, why there should be any opposition to this Amendment. It has to do with disputes of a commercial character and also of a legal character. All legal questions, with certain exceptions, as we all know, are heard in public, because it is a necessary safeguard of justice that legal questions should be heard in public. Questions of divorce are not now dealt with in that way, yet although certain people may have been recently divorced from their principles, I do not think the President of the Board of Trade will use that as an argument in this case. You have, in legal matters, the position safeguarded in every possible way. There are the high traditions of the Bar, there are the Judges, with very great traditions behind them, and there are legal prin- 1152 ciples which have been laid down by Statute and are generally well known, and yet it is considered necessary that in the interests of justice itself those proceedings should be heard in public.
Here you have a case which is quasi-commercial and quasi-legal, and it is to be heard, not by a Judge and jury, but by a referee, and from the decision of the referee there is no appeal. He is an absolute dictator, and what he says goes. There is no appeal from him to the Lord Chancellor or to the President of the Board of Trade either. Surely then, in a case like this, where you have no traditional laws or customs to go upon, where you have a man from whose decisions you cannot appeal, it is very necessary that, however able he may be, the public shall be safeguarded against an injustice being done. The referee is able to make decisions which may not only be very important but may cause certain traders, honest traders, great losses. They may bankrupt them in certain cases, and yet they have no safeguard whatsoever under the Bill as drafted.
10.30 p.m.
A man sitting in a secret room can make decisions which might ruin a trading firm, and the general public have no knowledge of the grounds on which that decision was based. I see no reason why the trading community of this country should not be safeguarded by the fact that these decisions are made in public, and I seriously ask the President of the Board of Trade, who after all has great Liberal traditions behind him—I hope they are not too far behind him— to consider why he should not accept this Amendment. I can say quite sincerely that I see no reason, from the point of view of those who support the Bill, why he should not accept the Amendment. If I were in favour of the Bill, I should support the Amendment as well. It has not been moved with the idea of weakening the Bill in any way, but when transactions of great commercial importance are in question involving, it may be, large sums of money and involving also legal points as to what a particular regulation means, why cannot we have the safeguard of publicity? You can have a very small court and not many members of the public will be there, but there will be representatives of the Press, particularly 1153 of the commercial Press, and certain things will be laid down by the referee which may be very interesting and valuable. I put forward this plea seriously and not from a party point of view. The people who are concerned and will probably lose money will have no redress against the referee's findings, and there will be no appeal to the sense of justice of the President of the Board of Trade, The Lord Chancellor appoints the referee, and if he makes a mistake there is no appeal. The referee is not only the magistrate, but the judge and the House of Lords as well. You are setting up this unknown man as a sort of Mussolini, and the only way in which a decision can be changed is by Act of Parliament. I appeal to the Minister to reconsider this matter.