HC Deb 23 June 1939 vol 348 cc2628-39

11.45 a.m.

Mr. Alexander

I beg to move, in page 7, line 37, after "person," to insert "concerned."

This matter was well debated in Committee, when the Minister made the suggestion that words which had been put forward from the opposite side might meet our position, but they did not fully meet it. I am, however, convinced that this is the best that I can get out of the Minister, and as he has been kind enough to say he will accept the insertion of this word, I think it might help to tie up the position properly.

Mr. Burgin

I accept this Amendment. Amendment agreed to.

Mr. Speaker

In calling the next Amendment, I might mention that the Minister has set a good example, which I think other hon. Members had better follow to-day.

11.46 a.m.

Sir Arnold Gridley

I beg to move, in page 8, line 39, to leave out "by the Minister."

I can assure you, Mr. Speaker, that you correctly anticipated my own intention, and I take it that I may deal with the series of Amendments in my name on Clauses 7 and 8 together. The House will remember that on the Committee stage we had a very long debate on this question of arbitration, and a division took place as to whether the Minister's Clause or an Amendment, which was different from this Amendment, should be accepted. At one stage the Minister was good enough to make a suggested concession, which is now dealt with in this Amendment strictly on the lines of his own proposal. Therefore, without more ado, I move it.

11.47 a.m.

Mr. Pickthorn

I beg to second the Amendment.

I hope, Mr. Speaker, you will not think me disrespectful to you or inconsiderate of the House if I am not quite so short in my remarks as my hon. Friend who has just sat down. I have at least one excuse, in that I did not speak in the previous debate on the question of arbitration, and I wish as briefly as I can to persuade the House that there really is, in what may appear to be a small point, matter of very great substance. There are two constitutional principles involved here. The first is that nobody, and perhaps least of all an administrative authority to whom unprecedented powers are being given, ought to be, or to appear to be, obviously and wholly judge or arbitrator in his own case. That there should be some recognition of the principle is, I think, all the more necessary on this occasion, because while I do not in the least wish to go into the more controversial aspects of the previous debate, I think everybody would agree that there were some unfortunate expressions which fell from speakers on both front Benches and which made more clear than otherwise would have been the case the necessity that this principle should be brought to the attention of this House and, I hope, in some way indicated in the Bill.

There is another constitutional point involved, but I propose not to weary the House with it, in order to save myself time to put a practical point in this connection also which has, I think, not yet been suggested. There was an assumption throughout, in the support for the Bill as it stood, which came from the opposite Benches, that the Minister would always and as a matter of course be, so to speak, anti-contractor, always against the industrialists, the suppliers. I am in the recollection of the House, and I venture to ask anybody who shakes his head to read the Official Report. I do not think that that impression can be escaped, that the assumption was that the Minister would always have one interest, an interest opposite to that of the supplier. That seems to me to be, from the point of view, if I may respectfully and without impertiness say so, of hon. Members opposite, a dangerous assumption. It is not in the least necessary to have any desire to criticise or suspect an existing Minister to remember that the "unjust steward" is at least 1,900 years old, and, for all we know, even before the days of our Blessed Redeemer there were such persons. Their method was, if they thought that there was any chance of their losing employment, to make previous bargains with those who supplied their employers. There were Ministers of Supply in Holy Writ who did quite well by that method. I have never quite understood why they were commended in Holy Writ, but that is not immediately relevant.

What I want to persuade the House is, first, that there are constitutional principles here involved—it is not necessary further to insist on that—and, secondly, that this Is not purely a question of constitutional theory or even constitutional practice. There is a question of business practice involved here too. There might be such a Minister that even hon. Members opposite would be glad that the sole control of the appointment of arbitrators should not be in his hands. I have one other word to say which, I hope, Mr. Speaker, you will not think out of order, because if I were longer, I could explain why it is in order. That is, that on this Clause there was some promise by the Minister on an earlier Amendment that we should have it explained to us that arbitration was not going to apply solely to price, but would apply to other conditions too; and possibly it might be for the convenience of the House if the Minister could give us some short explanation of that kind now.

11.52 a.m.

Sir Percy Harris

When we were in Committee some heat was generated on this subject, and I think that possibly too much importance was attached to this Clause. On the other hand, I insist that we have to realise that this Department will go in for colossal and you might almost say universal trading, on a scale almost unprecedented in business times. We are setting up a large buying and trading Department. We have read in

the Press to-day that elaborate and expensive new offices have been secured, employing some 800 officials, and I think that is only a beginning. I would not mind prophesying that before long, as this work develops, a very much bigger organisation, much larger even than is anticipated at the present time, will be set up. When we talk about the Minister, we somehow visualise the right hon. gentleman sitting down and carrying out these contracts, personally selecting who shall judge on disputes and so on, but, of course, when this Department is in operation, the right hon. gentleman will, I hope, be involved mainly on questions of priniciple, in the administration of the staff, and in the bigger problems of protecting the public interest. When we criticise the method of providing for the settlement of disputes, we are not criticising or attacking the Minister, because we have to visualise the necessity for going to arbitration on questions arising out of the work of this new, great Department. Therefore, I hope the right hon. gentleman will not think we are criticising him or any potential Minister. We are dealing with the question of principle, and on that basis only we shall have to discuss these questions.

When the right hon. Gentleman said that he should be trusted to see that any arbitrator would be impartial, we know, of course, that that is the case, but we must remember that a great number of transactions will be involved. There is bound in the future, during succeeding months, to be a great number of disputes, and it is vital that when they come to be settled, not only should there be justice, but both parties concerned should feel that they are being fairly treated and that the arbitrator who decides the case has been impartially selected. A business man, or a trader, or a manufacturer who is involved will not know who selects the particular person to adjudicate in his case, but if he has an idea that the other party to the case, the State, this great business organisation, with untold wealth behind it, is to have the right to select in each case who shall be the arbitrator in his case, there may be the suspicion, no doubt unjustified, that he is not being given a fair deal. I would say to the right hon. Gentleman that if this great new organisation is to work smoothly and to pro- duce the results that we all want, of protecting the public interest and getting production on a large scale, he must have the good will and co-operation of the trading and business community.

This Amendment, which is, after all, adopting words that the right hon. Gentleman himself suggested, seems a reasonable way out of what is an important issue. When we hear all this talk abroad of the State being all-powerful and the individual being unimportant, we say that it is vital that Great Britain should retain the principle that every man should be sure that he will get fair and impartial justice. In Germany to-day it is their view, and it is preached in propaganda universally, that the individual has no rights against the State. Indeed, we are sometimes having this sort of doctrine preached in this country, and it is vital that in this House we should retain the principle that every individual, however unimportant, however small, should have rights against the State and should feel secure that he will have a fair trial when involved in a dispute with a great and powerful Department like that which we are now setting up.

11.58 a.m.

Mr. Alexander

Having regard to your suggestion, Mr. Speaker, I am bound to say that we on this side are not responsible for the way in which this Debate has developed. We had to express ourselves very strongly in the last Debate, and we thought the Minister then was very unfairly attacked on the situation which he had to defend in the drafting of the Bill. On this occasion those responsible for the Amendment have left out some of the objectionable features of the case which they have presented. They have come back to suggestions which were bandied about in the Debate as being a possible compromise, but if there is any question now of compromise it must be borne in mind that a decision made here this morning in a comparatively small House will become a very important precedent.

We are not yet aware that any case has been made out for a precedent for this particular formula in dealing with these classes of arbitration which may be contemplated under this Clause, and whilst we are not objecting to the Minister, if possible, making some reasonable approach to the points of view expressed in the House, we consider it to be essential, from our experience of a whole range of arbitrations carried out under statutory authority that the appointment of the panel should be a ministerial appointment. If, within that, the Minister can see his way to recede so far from what we thought was the very strong position that he was endeavouring to take upon the last occasion as to provide for the arbitrators in any particular case to be selected by the panel, under that chairmanship, we would not object; nor should we object if he was prepared to say that, so far from adhering to the first suggestion put forward on the Committee stage, that it must be composed of certain members of certain professional bodies, he would put on people of practical experience, we should also welcome any suggestion of that kind in view of the importance of this precedent on whole classes of arbitrations under statute. It is essential that the' Minister should retain the appointment of the chairman of the panel in ministerial hands.

12.1 p.m.

Mr. Burgin

If any of the heat engendered on the last occasion was in any way attributable to the manner in which I handled the matter I at once unreservedly apologise. No one could more regret such an occurrence than I do. There has, I think, been a certain amount of misunderstanding, and before addressing myself particularly either to the Amendment as now proposed, or to the speech of the right hon. Member for Hills-borough (Mr. Alexander), I should like to indicate a little more clearly what is in my mind. The hon. Baronet the Member for South-West Bethnal Green (Sir P. Harris) quite rightly said that if there is a question of principle here and British justice is involved, we ought to be very careful what we do, but the curious part is that the proposal in the Bill as it was passed in Committee was really conceived to help the very interests which sometimes seem to be opposing it. Where there is a dispute as to whether a woollen and worsted garment is being made in the right way or whether the right price is being paid for an Army gun, there is such a tremendous gamut of possibilities

that it was thought that a tribunal consisting of a lawyer, however eminent, of an accountant, however skilled, of an engineer, however well qualified, might not be the appropriate body having the knowledge to deal with that particular point.

I used an expression which caused a certain amount of opposition when I spoke of "rough business justice." I was merely speaking colloquially, meaning a common sense business arbitration, and decision on the point at issue, and I was a little surprised to be told that I was speaking "like a Chicago tough guy." I do not recognise any close resemblance. What I was attempting to say was that there might be a number of points involved in the dispute as to which a man who knew the conditions of the industry could say to the complete satisfaction of both sides. "Well, you know, this is out of the question in this industry and such and such a rule ought to prevail." Those were the circumstances in which it was thought right that a panel sufficiently wide to include the main supply industries should be selected. Then if there were a gun dispute we could make a gun expert the man who arbitrated and not a woollen and worsted expert. I beg hon. Members not to think there was any attempt to create a tribunal which made the Minister the judge in a cause in which he might be interested.

The conception of the Clause was that it should be of an eminently practical character. We were endeavouring to set up a practical tribunal such as there is in the different grain and produce exchanges in Mincing Lane, where a tribunal is always made up of those who know all about the business. The late Sir John Holland, a very famous lawyer, made a tremendous fortune out of the gift which resided in his fingers of being able to judge the quality of wheat by the touch. He could run his fingers through a parcel of wheat and say almost instantly whether it was Manitoba hard or some other quality. When hon. Members talk of questions of principle and of constitutional practice I beg them not to overlook the consideration which I have advanced in Committee that if there is a ministerial appointment the Minister is responsible and can be called in question by the House, whereas if a tribunal is appointed from outside that power of control does not exist. I want hon. Members to appreciate that I was jealous of that question of ministerial responsibility in accepting the Clause as drafted in the Bill.

The Amendment takes the Bill as drafted, but adds on to it a proposal that the tribunal nominated by the Minister, the panel, should then proceed to work in a businesslike way and elect a chairman, and that that chairman should nominate the particular individual to deal with a particular dispute. That is the purpose of the Amendment. I am sure that whether those words are included or not, in practice if you had a large panel they would elect a chairman and a deputy-chairman and I should have thought that the election would have taken place on the vote of a majority of the panel and not on that of a minority, and that the Minister would probably have consulted the chairman and the deputy-chairman in every case when an arbitration arose. Supposing it was first understood that the Minister provided that there should be someone of eminent impartial legal experience as chairman, I wonder whether that would not go a long way to meet what is desired; and I wonder whether, if the Minister appointed as chairman a person of impartial experience, we should not this time kill all the birds with one shot.

If my hon. Friends who support this Amendment felt that the spirit of what we are all trying to reach, namely, a tribunal that is practical, which consists of a panel necessarily chosen by the Supply Minister because he alone knows who is doing the supply, but that the Minister undertakes that on that panel there should be some person of recognised impartial judicial experience, I wonder whether that would meet the case. This person would not be the gentleman who would be the arbitrator; it is a suggestion that a person of legal and impartial experience can prevent a miscarriage of justice by seeing that the right member is selected to do the right thing. If it was thought that that was a sensible suggestion I should not have thought that my hon. Friends who support this Amendment would have found it very difficult to allow me to undertake to nominate that person of judicial experience as the chairman. If that were done, the Committee will see, we should have a panel nominated by the Minister, we should have the chairman selected by the Minister, and the chairman would be a person of wide, judicial, impartial experience. Then there would have to be some words inserted to say that that chairman or his deputy, properly nominated by a majority of the panel, could select a particular arbitrator for a particular case. The sort of solution I have endeavoured to arrive at is an undertaking to put a judicial person on the panel, and if the power of appointment were in my hands I would consider, before the Bill leaves another place, the proper words to insert to give effect to the undertaking. That would be the way I should approach the matter.

12.10 p.m.

Mr. Dalton

So far as we are concerned, I think the right hon. Gentleman has made a proposal that, broadly, would be acceptable to us, but whether it is acceptable to those behind him I do not know. I hope he is not going to give way much further. If necessary we should back him up as we did the other night. On the last point he made let us get things clear. The right hon. Gentleman's suggestion now is that he should appoint the chairman, that the chairman should not be a person with a narrow interest, narrow commercial experience, but a legal person of impartiality and reputation, but none the less appointed and selected by the Minister, and that that chairman should then choose arbitrators from the panel for particular cases. That suggestion my hon. Friends would be prepared to support. But almost in his last sentence the Minister also suggested that there should be a deputy-chairman—that no doubt is reasonable—but a deputy-chairman, not to be appointed by him but to be chosen by the arbitrators as a body, and to exercise the chairman's functions when the chairman was too busy or was ill. That, I think, is going too far. If there is a case for a deputy-chairman the Minister should appoint him also.

Sir Irving Albery

Would the hon. Gentleman object to the chairman selecting the deputy-chairman.

Mr. Dalton

In practice that is probably what would happen; in practice no doubt there would be consultations, but what we are anxious about is that the Minister should retain the power of nomination of the chairman. Having got this principle established with regard to the chairman, we do not want to find that it is only a theoretical position, and that in practice there is to be a deputy-chairman who in many cases would do the work which it was thought that the chairman would do. I suggest that if there is a deputy-chairman to be named and specifically referred to, my hon. Friends and I certainly desire it to be made clear that that deputy-chairman should be appointed by the Minister. I suggest that it is better to leave the Bill as the Minister has suggested and not to put in anything about the deputy-chairman.

Sir P. Harris

Why does the hon. Member attach great importance to the Minister appointing a chairman instead of the panel?

Mr. Dalton

I do not want to go back over arguments that were used when the Bill was in Committee. We have in mind a very unfortunate previous example of the whittling down of the power of the Minister of Transport with regard to the persons who control London Transport. That power was given to outside people. Our view is that the Minister can do the job and stand the racket of responsibility in making this appointment. The appointment could be criticised by the House, but the responsibility ought to lie on the Minister.

12.16 p.m.

Commander Sir Archibald Southby

I shall endeavour not to forget, Mr. Speaker, the suggestion which fell from your lips when this Amendment was called, and shall try to be brief. As a matter of fact the length of the speeches from these benches rather depends upon the answers which are obtained from Ministers. The Minister's answer in this case has been so acceptable and conciliatory to us that I do not think there is any reason to prolong the debate on this matter much further. On both sides of the House there is, however, a considerable amount of uneasiness lest the appeal to this arbitration panel should take away from a contractor the justice to which the hon. Baronet has referred as being the right of every individual in this country, however insignificant he may be. We are concerned to set up a panel which shall be really impartial.

If I understood the speech of the right hon. Gentleman the Member for Hills-borough (Mr. Alexander) he rather took the view—and I know that he will correct me if I am wrong—that the panel should be as wide and as impartial as possible, but that the appointment of the chairman should be in the hands of the Minister. The Amendment follows as closely as possible the Minister's own words when he spoke on this matter during the Committee stage. I have no desire to refer to the discussion and to the heat which was generated on that occasion, but I rather agree with what was said by the right hon. Gentleman the Member for Hillsborough. The panel should either be as wide and as impartial as possible and the Minister should retain the right to appoint the chairman, or, if the panel is to be restricted and appointed within narrow limits by the Minister, then the chairman ought in order to be impartial, to be an outside appointment.

In my view the best solution of the difficulty is to have a panel as wide and impartial as possible. The Minister will presumably appoint upon that panel individuals who are best able to carry out the duties which they will be called upon to perform in the interests of the community. I agree that if the panel is wide and impartial then it would be better for the Minister to appoint the chairman. I certainly accept the suggestion that the chairman should be an outside legal gentleman of high standing known to be completely impartial. I would like that point to be made quite clear to the House. The appointment of that chairman should lie in the hands of the Minister but perhaps we can go a stage further. The last speaker referred to the question of a deputy-chairman I agree that the appointment of a deputy-chairman will be essential, because there may be illness, or something may turn up which may make the performance of his duties by the chairman impossible for a time. Therefore, it will be essential to have a deputy-chairman. The fear of the hon. Member who has just spoken is that the panel should appoint a deputy-chairman and he feels that the appointment ought to remain in the hands of the Minister. I rather agree with him. Might it not be a solution of the difficulties of both sides of the House that the panel should be as wide as possible and that the appointments by the Minister should include those of the chairman and deputy-chairman? There should be an outside impartial rule over this tribunal and therefore the deputy-chairman should also be a legal gentleman. It might be that the chairman should come from one branch of the law and the deputy-chairman should come from the other branch. If the Minister can see his way to accepting my suggestion I believe it would satisfy the majority of Members of this House.

Sir A. Gridley

In view of what the Minister has said—and we can all refer to it in the records—and in view of the fact also that there is practically no disagreement between one side of the House and the other I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.