CLAUSE 6.—(Constitution, jurisdiction and procedure of Pensions Appeal Tribunals.) (Hansard, 22 July 1943)

§ The Attorney-General
I beg to move, in page 5, line 6, at the end, to insert: 1160 (2) Where, in the case of an appeal to the Tribunal under Section one, Section two, Section three or Section four of this Act the appellant or the Minister is dissatisfied with the decision of the Tribunal as being erroneous in point of law, he may, with the leave of the Tribunal or of a judge of the High Court nominated for the purpose by the Lord Chancellor, appeal therefrom, within such time as may be limited by rules of court to the judge so nominated and the decision of that judge shall be final and conclusive. Rules of court may provide that, where an appeal is brought under this subsection, a case shall be stated by the chairman of the Tribunal. There is on the Order Paper an Amendment in the name of my hon. and gallant Friend the Member for Daventry (Major Manningham-Buller) and others, suggesting that there should be an appeal to the High Court on the question of principle. That Amendment was put down to raise the point, as obviously people may differ on what is a question of principle. We have thought it right to put down the Amendment I am moving—and which I commend to the Committee—to give a right of appeal to the High Court on a question of law. That is a very common provision in the Statutes. There was no such right in similar legislation dealing with the last war but, of course, this legislation brings in many other categories and raises many other problems. There might well be a difficult point of law as to what was a war risk or war service injury, and we are grateful to hon. Members for having raised this point, because we think it would improve the Bill to have this power of going to the court. It would be undesirable, if there were some question of instruction, to have tribunals taking different views. We have said that the appeal should only be by leave of the tribunal or court. If there is a real point of law, I imagine that the tribunal would be only too glad to have it settled by the court. But it must be safeguarded in that way. We also think it right—although this arises on a later Amendment—that where leave is given and an appeal on a point of law is taken to the court, whether the proposal is initiated by the man or the Minister, the State should pay the costs of both sides. It is really taken as a test case in order to get points of principle decided and, therefore, where leave is given we think that is the right procedure. Of course, if a man applies for leave and fails, he has to pay his own 1161 costs but where leave is granted, we think the taxpayers ought to pay the costs.

§ Earl Winterton
Some of us, when we first looked at this Amendment, were slightly concerned at the prospect of the costs falling on the appellant when there was an appeal. The fact that the Attorney-General has made it clear that the costs will be paid by the Government, does away with any difficulties that may arise on that point. In view of the fact that some of my hon. Friends, who have more experience than I of the working of the Pensions Act, have put down Amendments rather similar to this Amendment, I do not want to oppose it but I would like to mention one or two points which I think should be considered. First, and most important, is the fact, as the Attorney-General himself said, that we have nothing of this kind in previous pension Bills.
That may not seem important, but I think it is important for this reason. Nobody who has sat in this Committee and heard the discussions on the Royal Warrant and the Questions which have been put to the Minister, can fail to realise that the meaning of words in the Royal Warrant or in the Pensions Act, are subject to more controversy than almost any other subject in the administrative world at the present time. It will not have escaped the notice of the Committee that the three Clauses under which an appeal can be made to this new body contain a number of words about which, on some occasions, the Committee and the Minister have differed. On several occasions we have had assurances from the Minister—and assurances are binding on his successors—as to the meaning of particular words. But let nobody forget for a moment that a judge would not be bound by them. He would say, "I am not concerned with promises which the Minister has given in connection with the Royal Warrant; I am concerned only with the interpretation of the words in the Act." I think the Committee should face that. We might have a long course of proceedings before a court. We might have a great number of appeals both by the Minister and by individuals.
I feel slightly concerned about another point. I am sure that the bodies to be set up, will be composed of men of the highest character but the Amendment says: 1162 …may, with the leave of the Tribunal… Is there not some danger that, perhaps without wanting to do so, tribunals may get into the habit of granting appeals at the request of the Minister and not at the request of individuals? The tribunal settles whether an appeal shall take place or not. Suppose an appellant appeals in case A and is dissatisfied and says, "The tribunal has misinterpreted the Act on the subject." Suppose the tribunal does not give him leave to appeal and that later the tribunal, at which the Minister is legally represented—

§ The Attorney-General
Perhaps I might be allowed to interrupt. The Minister would not be legally represented before the court. We shall come to that later. We must assume that the people on the tribunals will act impartially, perhaps even be swayed a little in favour of the man. If a man is turned down, he can go to the High Court. If a tribunal refuses a man, he can get leave from the High Court.

§ Earl Winterton
He can then go to the High Court. I presume that payment of the expenses to which my right hon. and learned Gentleman refers also applies to an application to the High Court.

§ The Attorney-General
If he succeeds.

§ Earl Winterton
That shows how very fortunate it is that someone rose before the Clause was put to the Committee. That does not meet my point at all. If you are going to set up a new body of this kind, you must be scrupulously careful to see that it in no way injures the prospects of the ex-Service man. Therefore you must make it as easy financially for him to act under the machinery as it is for the Minister. Obviously, if he goes to the High Court to make an application and is unsuccessful, and has to pay his own expenses, it will be to that extent a deterrent. One of the disadvantages of the present method of doing business is that, if you have a regular Opposition, with a Leader, there is no point that escapes notice, but under present conditions Clauses go through without full consideration. I submit that the points that I have raised are worthy of some consideration and should be dealt with, if not now, before we come to the Report stage, especially the question of the costs of appeals.

§ Mr. Hogg
There is on the top of page 389 a somewhat cognate Amendment in my name raising a slightly different point from that raised by the present Amendment. Is it your intention, Mr. Williams, to call it separately, or would you prefer any argument on it to be dealt with now?

§ The Deputy-Chairman
If the hon. Gentleman and the Committee agree that we should discuss the two together, I will fall in with the arrangement, but if there is any request to discuss them separately, they will have to be discussed separately. Does the Committee agree to discuss them together?

Hon. Members
Agreed.

§ Mr. Hogg
I should like to put before the Committee the reasons which led my hon. Friends and myself to put down our Amendment. We believe that the Government Amendment represents a real step forward. It is vital in any complicated mass of legislation to, keep the administration of it in different parts of the country the same, so that it would not be possible for a tribunal in one part of the country to differ outrageously from a tribunal in another part. We accept the view of the Government that to allow an appeal on a point of law, whether direct or by way of case stated, will give an adequate safeguard against that. But the Government Amendment contains no provision for setting aside the verdict of a tribunal where it may have been obtained by misconduct—misconduct in the technical sense applied to judicial officers. I appreciate with the Government that it is important to make the decisions of this tribunal as final as possible, but, in order for them to be accepted by the public or by the House, it is vital also that they should command confidence. Therefore there ought to be in existence the same type of machinery as exists in the case of a verdict of a jury, or the award of an arbitrator, which are equally final, to set it aside where it has been obtained by what is technically known as misconduct. I do not suggest that the tribunals that are likely to be set up will be composed of men of other than the highest character, but, as the Bill is at present drafted, even if the tribunal accepted bribes, there is nothing that could be done.

§ The Attorney-General
I do not agree.

§ Mr. Hogg
I hope my right hon. and learned Friend will deal with that. There are other forms of misconduct which are less unlikely to occur. An Arbitrator who expresses a view strongly before the hearing of a case in such a way as to preclude him from forming a fair decision cannot make a valid award. Suppose a member of a tribunal holds very strong views as to whether or not cancer can be aggravated by war service in such a way that he is impervious to argument. As I see it, such an award would stand.

§ Dr. Haden Guest
Doctors are never impervious to argument.

Dr. Morgan
May I on behalf of my profession deny that soft impeachment?

§ Mr. Hogg
Where professional opinion differs it is for the layman to make his decision. I have known no class which has not members among it who are impervious to argument, and even in the highest judicial circles there have been judges and magistrates impervious to argument on particular points. That is the exact issue that I have in mind. A military member of a tribunal, being a layman, might say, "I knew this man. He was an awfully good fellow. Anything he says must go." That is not acting judicially. Or he might say, "I knew him in the Middle East, and he was a malingerer." No decision that that man came to would be worth twopence as a judicial decision. We thought that if that sort of thing happened, the same sort of procedure ought to be open to either side to set aside the verdict of the tribunal as is open to a litigant in the case of an arbitration, where the whole bent of the court and of Parliament has been in favour of finality as here, or the same sort of procedure open to an appellant or to the Minister as is open to a person who is dissatisfied with the verdict of a jury. Although I welcome the Government Amendment, I should have preferred to see it go that little bit further and give power to set aside a decision which has been improperly obtained by reason of some kind of misconduct on the part of the tribunal, not necessarily of an immoral character but of an unjudicial character, which would rob it of any claim to confidence in the eyes of the public.

§ Mr. John Dugdale
To return to the point raised by the Attorney-General, I 1165 understood first of all that costs were to be paid by the court. The Attorney-General said afterwards, "only if the claimant is successful."

§ The Attorney-General
I thought I said that, if leave is given either by the tribunal or by the court, costs will be paid by the Government, whether the claimant loses or wins. The one exception is that if a man applies for leave and does not get it, he bears his own costs, but if leave is given, the costs are borne by the taxpayer, whatever the result.

§ Mr. Dugdale
That satisfies me entirely.

§ Earl Winterton
It does not satisfy other people. I hope the Attorney-General will consider whether he cannot equalise it completely. Surely, if a man fails in his appeal, it would be quite a small thing for the Government to pay his costs, whether successful or not. As between the Minister and the individual there would then be no sort of differentiation.

§ Major Manningham-Buller
I understood that the costs of the hearing of the appeal in the High Court would be paid by the State in any event and the only time when the applicant had to pay any costs out of his own pocket was when he had applied to the tribunal for leave to appeal and been refused and then applied to the High Court. He had to pay the costs of that application, which would be very small, if the application was refused. I personally take the view that that is quite right, because you cannot have the High Court flooded out with innumerable applications. A man who applies to the High Court has presumably had his application already turned down by the tribunal. I think it is quite right that there should be a slight deterrent on making applications to the High Court.

§ Lieut.-Commander Hutchison (Edinburgh, West)
Could we have any indication as to what the costs might be?

§ Major Manningham-Buller
I should not like to give a definite assurance, but it would not amount to more than a few guineas at the outside, and very likely it would be done for nothing.

Dr. Morgan
I think the concession should be made, but the cost would be much more than a few guineas. It might 1166 be anything from eight to 20 guineas. The man has to get advice. He cannot speak in court and may have to brief someone. If the tribunal has given leave to appeal and the court turns him down—

§ The Attorney-General
If he is given leave, he can get his costs.

Dr. Morgan
If the tribunal gives him leave to appeal and he wins his case—

Hon. Members
No.

§ Sir W. Womersley
Whether he wins or loses, he gets them.

Dr. Morgan
If the tribunal refuses him leave and he appeals to the court and the court turns him down, he has to bear his own costs.

§ The Attorney-General
If the court refuses.

Dr. Morgan
I still think it is unfair. He may have taken advice; he may have been guided by lay advice. His costs, which may seem to us slight, would be a great deal to him, say six to to guineas. It is really a plea that he should be deterred from unnecessarily appealing even when he thinks he has a justifiable case and has been advised by someone who thinks he has a knowledge of pension matters. Why haggle over things of this kind, when it means very litle to the State? I hope the Government will give way.

§ Mr. Silkin (Peckham)
This may seem a relatively small point, whether an appellant should be able to go to a judge when an appeal tribunal has refused him and whether that should be facilitated or otherwise, but we have to recognise that in the case of many applicants a matter of a few guineas is a very important matter. We have also to recognise that where a tribunal has already refused a pension the bias of the tribunal will be towards refusing leave to appeal. That at any rate is my opinion. It is human nature. Therefore I think an appeal to a Judge should be facilitated and that there should be no court fee to be paid when applying to the Judge. That is already provided for in workmen's compensation cases. Normally the court fee is quite considerable. I hope also it will be possible for an appellant to appear before the Judge through a friend, and that it should not be necessary for him 1167 to employ a lawyer. Legal people require to be paid, but if a man is a member of a trade union, it ought to be made possible for him to be represented through his union, though that is not possible normally when appearing before a High Court Judge. If the Attorney-General can give an assurance that there will be no court fee and that the appellant may be represented by a layman, I think the Committee might accept the Amendment as it is on the Paper.

§ Mr. Naylor (Southwark, South-East)
I should like to mention a question which has been considered when we were discussing the White Paper. What I want to know is what will be the position in regard to a man who has met an injury on home leave. This is a question of high principle. In the event of a man who has met an injury in those circumstances appealing to the Minister for consideration, he will be told by the Minister that his case is outside the terms of the Royal Warrant. I want to know whether that man can appeal to the tribunal and whether he will have the right to ask the leave of the tribunal to take his case to court on a question of principle. There are many of us who think that we could make a good case to prove that a man on home leave is still in the service of the Army. It seems to me that a man injured in those circumstances has a case at least for consideration. It is an important matter, because any decision would govern not only the individual case but all subsequent cases. I ask whether it is possible for such a man to get his case considered with a view to the legal principle being settled by the high court.

§ Mr. Buchanan
There is another point to be considered when a man is dissatisfied and is refused leave to appeal. We have had experience of cases of widows' pensions now for a number of years. Usually the tribunal is presided over by a King's counsel. He hears the application, and if there is a point of law, there is a right of appeal in Scotland to the Court of Session or in England to the High Court. I hope I am not saying anything unfair to the legal profession, but I have found that a Judge of high standing is much more likely to give leave to appeal than an ordinary lawyer. The ordinary lawyer somehow or other is much more afraid of being turned down 1168 than a Judge, though the Judge himself perhaps might have been afraid of that at the time when he was on the verge of being a Judge. The Judge has much more confidence in his opinion. Another point is that there will be a number of men who will argue their own cases. In that event expenses are bound to be smaller.
If he engages counsel, I presume a man will be advised before he decides to go to the High Court, and I am bound to say I have not found any tendency on the part of counsel to rush a man into court. I give them their due in that respect. They often advise us to keep clear of the courts, and I have known cases which might well have been carried on for a further period brought to an end because counsel do not want to carry on cases simply for the sake of carrying them on. If, however, counsel advises the man to go on, I think it may be taken that that means there is a prima facie case. I do not know English procedure, but my knowledge regarding Scotland is that if you lose a case on appeal you are mulcted not only in your own costs but in your opponent's expenses. That seems to me to be going too far. I put it to the Attorney-General that a number of these men will be poor men, some of them will be disabled and some quite unfit to work, and I do not think they should be compelled to pay their own expenses and the Government expenses as well.
I want the Attorney-General to rise and do the right thing. I would like him to get up and say that the Government will make it a point of practice not to do that. In many cases it would be impracticable to collect the money. If a man is disabled and it is held that his injury did not occur through war service, and he has incurred expenses amounting to about £10 and in addition is landed with a Government debt, it will be impossible to collect the money from him. Whatever else you throw over, throw over any attempt to collect Government costs and make it positively clear because it will be impossible always to collect them. Long ago in Scotland we abolished Poor Law relief on loan and I wish it were abolished in England. We found it was impossible in practice to collect it and it was a costly business. I hope the same will be done here. Whatever costs a man is mulcted 1169 in, I hope the Attorney-General will see that no portion of the Government costs is landed on him.

§ Sir I. Fraser
It is important that we should have in our minds, and particularly that ex-Service men should have in their minds, that for all practical purposes the appeal tribunals are the final courts to decide the men's cases. Any impression that there is an easy appeal over and above the ordinary appeal tribunals will destroy one of the most important factors about the work we are doing to-day. The men in the country and everybody concerned must feel, as they have felt for the last 25 years, that the appeal tribunals are fair and good and are the last word. It is represented that there might be an unusual occasion, perhaps only occurring once or twice in the first year, while doubtful points of law arise. Generally, when you begin to operate a system there are found to be doubtful points and after one or two test cases they are established. In order to ensure that no injustice is done by any chance Parliament says that there shall be this right of appeal on points of law, but let no one, particularly ex-Service men, be led into believing that it is a right of appeal on any other grounds. Therefore, make it rare and not wholly free. To encourage an ex-Service man to appeal, or to encourage some solicitors perhaps always to advise that an appeal to the High Court with costs paid is a good thing, would be a mistake and would undo much of the work we are seeking to do. Let us have virtual finality in the appeal tribunals and only appeals in the rarest possible cases.

§ Earl Winterton
I am sorry to find myself in disagreement with my hon. and gallant Friend the Member for Lonsdale(Sir I. Fraser). I agree with what he says in the last part of his speech, but I do not think he quite appreciates the situation. It is not a question of appealing to the ex-Service men to treat tribunals as finality and to make these cases rare. The point is that for the first time in the administration of pensions we are giving the right of appeal on three provisions which contain a 'number of sentences which from the legal point of view are highly contentious. The new appeal body is to decide in terms of law the meaning of three sections of the Bill 1170 which contain words which may be interpreted in half a dozen different ways. While I agree with my hon. and gallant Friend that no one wants to see a lot of appeals, it ought to be realised that a great number may arise, because this is a wholly novel procedure. The experience of this House and of anyone interested in trade union legislation will agree that when a right of appeal is given to decide the meaning of an Act of Parliament in matters of compensation it leads to a lot of appeals.

§ Dr. Peters (Huntingdon)
The laughter that greeted the reference to solicitors advising appeals falls coldly upon my ears, because in 40 years I have never charged one penny in any case of this kind, and I do not think it is the practice of solicitors to do so. There is one paint which the Attorney-General might like to have pointed out to him. The Clause says that there shall be a right of appeal, but it does not say to what court the appeal should go. The Attorney-General said that it would be the High Court, and it might be wise to insert that in the Bill.

§ The Attorney-General
That, I think, will be dealt with by the rules, but it is clear that it must be to a Judge of the High Court. May I say a word on what my hon. Friend the Member for Oxford (Mr. Hogg) said? He referred to his Amendment which provided that a person could get a decision of the appellate tribunal set aside on the same sorts of grounds on which you could get a new trial in the High Court. I think that he put the Amendment down to raise the point rather than as a final solution, because a lot of the grounds, like misdirection of the jury and improper admission or rejection of evidence, would not apply to the class of case with which we are dealing. In the sort of case he put, where there might have been evidence of misconduct, or bias, or bribery or expression of opinion before the case was heard, I would remind him that the High Court does in these matters exercise a control over subordinate courts through what is still called by the Latin name of order of certiorari. That is an order by which a decision of a lower court, which has either exceeded its jurisdiction or acted contrary to proper natural justice, can be brought up and quashed. The appellate tribunal is subject to an order of certiorari. There was one in the last war. Therefore, all 1171 that branch of law which has been built up over a long period of time for exercising control over subordinate tribunals which are liable to err, being human, is available, and it is important that we should have that in mind. I can assure my hon. Friend the Member for Gorbals (Mr. Buchanan) that these applications will be ex parte, that is to say, a man will go, and the Minister cannot appear to oppose him. The man who has been refused by the tribunal will go to the court with an affidavit, and I do not think any question of paying the costs of the other side would be likely to arise or could arise.
On the main point, we still adhere to the view which I indicated. It is undoubtedly unusual, but it is right and proper in cases of this kind, that if leave is given the taxpayer should pay the costs of either side, whatever the result. I think it would be going a little beyond what is reasonable to say that where a man has had the matter considered by the tribunal and has got a refusal, because he goes to the court and is turned down on what may be a trivial point, the taxpayer should pay the costs. I hesitate to be too dogmatic about these tribunals, but they have been in existence for 25 years, and there have been other similar tribunals. I do not believe these tribunals would have any reluctance to operate this Clause if they were satisfied—and it is rather a difficult question to be satisfied on—that there really is a point of law. Everybody knows that people in their position are very often glad of guidance. These tribunals are regarded always as working in a sympathetic atmosphere. In the case put they will be saying, "On the whole we think we must refuse this case because of a point of law," and I should have thought that there would be no reluctance on their part to have the point reviewed by a court, because it would relieve them of a certain responsibility. I hope the Committee will accept that view, because we feel that in reviewing this matter we have done our best to produce a reasonable situation.

§ Mr. Naylor
Is not the Attorney-General in a position to answer my question?

§ The Attorney-General
I think the ordinary rules must apply. I do not think we could make a special provision 1172 to operate in this one small possible instance of the tribunal refusing and the man going to the court. Provision is made for costs, including court fees, by the proposals which are made.

§ Mr. Turton
I beg to move, in page 5, line 14, to leave out from, "Tribunal," to the end of the Clause.
I am grateful to the Minister for having attempted to meet the point I am raising, although I am afraid I do not think it has been dealt with in a completely satisfactory manner. The words I ask to be left out were in Section 6 (2) of the War Pensions Act, 1921. In my view those words did give a certain unnecessary direction to the pensions appeal tribunal and would make the onus of proof against the appellant. The Minister has now altered the onus of proof in the Royal Warrant, and I think I can convince the Committee that it would be better to leave out these words if I read what this Subsection will be if the Minister's Amendments are passed: In determining an appeal under this Act in respect of any claim or award the tribunal shall have regard to the terms of the Royal Warrant, Order in Council, Order of his Majesty or scheme under which the claim or award shall be made and of any enactment under which any such scheme is made, being terms relating to the issue before the tribunal and"— And these are the important words: shall not allow or dismiss the appeal unless they are satisfied that their decision is well founded having regard to those terms. We presume that we are going to appoint reasonable men as a tribunal to decide these appeals, and to direct them that they have to be satisfied that their decision is well founded seems to me to be quite unnecessary. I feel sure that on mature reflection the Attorney-General will see that it would be better to cut out those words.

§ The Attorney-General
I am afraid that I do not share the hon. Member's views about these words. We clearly cannot leave them out. What we have to provide for is that the tribunal are to proceed on the basis of the Royal Warrant. The earlier words say, "They shall have 1173 regard to the Royal Warrant," and they have to be bound in both directions. The Royal Warrant, as amended, includes provisions which are of great importance to the applicant, the provisions dealing with the onus of proof, and one has to use words which make it plain that the appellant tribunal cannot dismiss an appeal or allow it unless they are satisfied that their decision is well founded having regard to those terms. I have no particular feeling one way or the other about what words are used, but I should have thought that these were words which anybody could understand and put the position more intelligently than things are expressed in some Acts of Parliament. In the Act dealing with pensions after the last war it was stated that the tribunal should not allow the appeal unless they were satisfied that it was well founded. I do see that a very good point could be made there, because it looks as though the law was being weighted in favour of dismissing the appeal. There was a sort of warning to look at the Warrant before they allowed the appeal. I thought that that objection, which I thought was my hon. Friend's only objection, was completely met by putting in the words, "or dismissed." That makes the direction perfectly neutral, and I do not see an objection to using words to ensure that what this House intended should happen, namely, that the tribunal must be satisfied that their decision is well founded having regard to all the terms of the Royal Warrant, including those in favour of the man and those which limit his right. I hope the hon. Member will agree with our Amendment and not press his.

§ Mr. Turton
In my view the words would appear to an ordinary layman to be nonsense, and I would ask my right hon. and learned Friend at some later stage to try to produce some legal term that would have more strength than "have regard to." To direct a tribunal that they must be satisfied that their decision is well founded does not strike a layman as being a very sensible proposal.

§ The Attorney-General
I do not want to pledge myself, but I am sure my right hon. Friend will be prepared to have a look at the words before the Bill reaches another place. I thought these were quite satisfactory words.

§ Major Manningham-Buller
It seems to me that all that the tribunal will look at will be the words: shall not allow the appeal unless they are satisfied, and that seems to cast the onus again on the appellant and to conflict with the terms of the Royal Warrant. I ask the Attorney-General to consider whether he could not provide that the appeal tribunal should be bound by the terms of the Royal Warrant and leave out the word "satisfied."

§ Lieut.-Colonel Marlowe
I wish to endorse the view put forward by the hon. Member for Thirsk and Malton (Mr. Turton), because these words are really verbiage. If they mean anything at all, they only mean that the tribunal shall come to a conclusion and then decide that they are right. Another meaning that could be given to them is that they must not, if they are satisfied that the pensioner is right, find for the Minister; and, alternatively, if they are satisfied that the Minister is right, they must not find for the pensioner. That is what those words mean if they mean anything at all. This is really a cumbersome attempt to implement the undertaking which was given with regard to the amendment of the Royal Warrant, and I want to hear from the Attorney-General how he is envisaging the implementing of that undertaking. You do not alter the onus of proof simply by putting in the Royal Warrant words saying that there shall be no onus of proof on the applicant. You do not get rid of the difficulty by simply putting in such words, because you have to deal with the practical situation of parties coming to a court, and anyone who has been in a court of law knows that one party or the other has to begin and somebody has to prove something. I want to know how the Attorney-General does see this working out. I find it a little difficult to see how, by simply putting in the words, "there shall be no onus on the applicant," you in fact deal with his position when he comes before the tribunal. He will have to go before them and say, "The Minister has refused me a pension, and these are the reasons why I think I should have it." It could, of course, be done by appropriate rules of procedure stating how the matter is to be carried out, but at the moment I find 1175 it impossible to discover anywhere in this Bill any implementation of the undertaking in regard to that question of onus of proof. Certainly these final words that we are dealing with in this Clause do not deal with it; they are merely wasted words which have no meaning at all.

§ Earl Winterton
The Attorney-General has now returned from one of his numerous conferences on these points, and I am not surprised that he has had to have them. I congratulate the Minister of Pensions on not having to get this Bill through Parliament with an ordinary Opposition in action, because it has been dealt with in a very peculiar way in some respects. We are in complete doubt as to what is the reason for these words—not only laymen, but lawyers as well. The Amendment we have recently discussed has given a right of appeal if there is a mistake made in law by a tribunal. Now we come to the Amendment under discussion. The words which we have passed say—and I apologise for reading them again, but this is important—that they shall determine an appeal under this Act in respect of any claim or award, etc. Very well; if they do not determine that appeal in respect of these matters, there is an appeal to the High Court Judge either by the Minister or by the appellant.

§ The Attorney-General
Only on a point of law.

§ Earl Winterton
Yes, and so I come to my point. The only point of law which I can see would arise would be as to the meaning of the terms of the Royal Warrant, or of the Order in Council, or of the Order of His Majesty, or of the Act which we are discussing. It would be on one or more of four or five things that the appeal on the point of law would be allowed under the words which we have just passed. If the tribunal makes a mistake in respect of the interpretation of those words, they will be, so to speak, called over the coals and brought before the High Court. If I am right, what on earth is the reason for putting in the words: shall not allow or dismiss an appeal unless they are satisfied that it is well-founded, having regard to those terms"? What is the reason for putting them in at all? If they have failed to carry out their duties under the Section, there is 1176 already an appeal against them. In what other Act of Parliament is it laid down that if there is an appeal from one court to another, the junior court shall not allow or dismiss the appeal unless it is satisfied? Is there any other instance in legislation of such terms being applied to what I may call the junior court?

§ The Attorney-General
The answer is in the Act dealing with this matter after the last war. The words in the Bill were taken from a Section in that Act.

§ Earl Winterton
The words of the Amendment?

§ The Attorney-General
No, the words in Sub-section (3). I do not think those words are particularly clumsy or obscure. They have stood for 25 years, but I am prepared to see whether we can put it rather more shortly. We cannot go back at this stage. We can do it by leaving out the words: being terms relating to the issue before the tribunal, and so on, and instead of, in the second line, "have regard to," put "shall be bound by."

§ Earl Winterton
Hear, hear.

§ The Attorney-General
I quite agree. It is shorter, and it produces the same result. We can at any rate claim that the words were in the last Act. They have always been used, and where a previous Act of Parliament has dealt with a thing and we start altering it for other than a reason of substance, people are apt to think, in this House and outside, that we want to produce some different result. If the Committee feel, as they obviously do, that this is a rather cumbersome phrase, I am quite agreeable. I think the best course would be to accept the Amendment and, at a later stage, if the Committee would allow it and if it is taken to-day, to have a manuscript Amendment substituting "be bound by" for "have regard to." I think the Noble Lord was not quite right on his point as to why we need Sub-section (3). We need it to make it clear that the tribunals have to apply or be bound by the various instruments. It is perfectly consistent to have another Sub-section which says that there can be an appeal on a point of law from their decision. I do not think the two things are inconsistent.

§ Lieut.-Colonel Marlowe
Would it be possible to substitute for the whole of the last sentence the words "and shall decide accordingly"?

§ The Attorney-General
There are various ways of doing it, and I have suggested one.

§ Earl Winterton
We are most grateful to my right hon. and learned Friend. We all understood the words in the original Act, but what he is seeking to do is to amend the original Act, and it was to the Amendment that we took objection, because the effect was to make the words look ridiculous. We are very grateful to him.

§ The Deputy-Chairman (Mr. Charles Williams)
Do I understand from the Attorney-General that the Minister is not going to move the next two Amendments?

§ The Attorney-General
Yes.

§ The Deputy-Chairman
The best course would be for the hon. Member for Thirsk and Malton (Mr. Turton) to move his Amendment and then to add in afterwards further words.

§ The Attorney-General
Yes.

§ Mr. Turton
May I take this opportunity of expressing my gratitude to the Attorney-General?

§ Major Manningham-Buller
I beg to move, in page 5, line 16, at the end, to add: (4) The Tribunal shall not reject an appeal on account of the refusal of a certificate by a medical officer or board appointed by the Minister, but the Tribunal shall in each case determine the appeal upon its merits. This is a short Amendment merely to make it clear that the appeal tribunals will not in any way be incommoded by the fact that a board of doctors appointed by the Minister has not granted a certificate, which is a condition precedent to the grant by the Minister of a pension. Without some such provision, the tribunal may consider itself bound to dismiss an appeal on finding that the Minister had acted rightly in refusing a pension because no certificate has been granted by a board of doctors or a medical board appointed by the Minister. It is a precautionary Amendment, so that the tribunal 1178 hearing the appeal shall do so on the merits of the case.

§ Sir I. Fraser
The relationship between the Royal Warrant and the Bill is very much in our minds, and one is guided in one's attitude towards the Bill by one's attitude towards the same words as they appear in the Royal Warrant. The Attorney-General will recall that a paragraph in the White Paper foreshadowed words to be put in the Royal Warrant relating to this matter. Some of us have been exercising our minds as to whether the fact that a man has to obtain a certificate means that it is not the Minister who grants pensions at all, and does not invalidate the onus of proof, the presumption and the benefit of the doubt provisions of this paragraph. How can a doctor decide having regard to a presumption? He can only decide having regard to diseases. We were under the impression that the whole point of setting up these tribunals was to judge of the acts of the Minister, but it appears that we are judging of the acts of his doctors. He is not really a person at all. He cannot take the action of giving a man a pension unless one of his doctors gives the man a certificate. If that be so, it seems a very important point. We should like to have the assurance that the presence of these words about the certificate will not prevent a case coming to the tribunal and will not negative the whole of the onus of proof concession which we think the Government meant to make to us.

§ The Attorney-General
There are two points here. The point raised by the Amendment undoubtedly concerns the appellate tribunal. I am sure my hon. Friend realises that if the point which he is seeking to negative by his Amendment was a good one, namely, that the appellate tribunal could never allow a pension unless there were a certificate, it would mean that it was not the slightest good setting them up. The whole object of setting up tribunals is that in cases where there is no certificate, and therefore no pension, the appellate tribunals shall reconsider the whole matter and shall be entitled to say that the Minister was wrong and that there shall be a pension. Therefore I would not like to put in this Bill, and it would be quite wrong, I think, to put in the Bill, a provision which really makes nonsense of the whole scheme of the Bill. But what I do agree with the 1179 hon. Member about—and the hon. and gallant Member for Lonsdale (Sir I. Fraser) will realise that I am still on the second point—is that I do think it is right that we should have a look at the Royal Warrant and insert words into that making it clear that a decision of the appellant tribunal has the same effect as a certificate. It might be said that that point should be expressly provided for. It has always worked all right, but when these points are raised it is right to put them right. I will certainly give an undertaking that we will see that a provision is put in to make it plain that the tribunal is free to decide an issue quite irrespective of the fact that there is no certificate.
The first point is really a point on the Warrant, but I have the authority of my right hon. Friend to tell the Committee that he has under consideration the question that my hon. and gallant Friend the Member for Lonsdale has raised. I think it would be quite wrong to leave the Committee with the impression that under the Warrant as it is the onus of proof Clauses have not full effect. They have, and indeed their main object is to bind and guide those who have to come to medical decisions or give medical advice as to the position. I mean that in this most important area, the onus of proof provision as regards medical grounds, the man is to have the benefit of the doubt and so on. I do not think the first point arises on this Bill, because Clause 1 of the Bill is in no way based on the existence of this certificate. I can assure the hon. and gallant Member that since this point was raised in the Debate the other day it has been considered by the Government.