CLAUSE 10.—(Appeals from Reinstatement Committees.) (Hansard, 18 February 1944)

§ The Joint Parliamentary Secretary to the Ministry of Labour (Mr. McCorquodale)
I beg to move, in page 8, line 13, after "Committee," to insert: or, if the Committee refuse leave, of the umpire or a deputy umpire. As the Clause now stands, an organisation of employers or employed persons, a member of which the applicant is, can appeal to the umpire on his behalf from a decision of the Reinstatment Committee, but a private individual cannot appeal, unless he is specifically given leave to do so by the Committee, or when the Committee is not unanimous in its decision. My hon. and gallant Friend the Member for Daventry (Major Manningham-Buller) has put down an Amendment which would provide a safety valve, and my right hon. Friend thought it was a good idea. I am therefore moving an Amendment which will enable an individual to apply to the umpire for permission to make an appeal to him. The umpire might grant leave to appeal or not, on a documentary application from the individual. I hope that this Amendment will not mean that leave to appeal to the umpire will be asked for so frequently as to clutter up the machinery, but this Amendment does provide what we think is a necessary safety valve.

§ Commander Galbraith (Glasgow, Pollok)
I beg to move, in page 8, line 24, to leave out "where," and to insert "if either party contends that."
This Clause deals with appeals from Reinstatement Committees and with the circumstances to be considered by the umpire or deputy umpire. It states the umpire or deputy umpire shall, where there has been any change in the relevant facts since the date of the hearing before the Reinstatement Committee, consider these facts. The Amendment which I am moving is to substitute for the word "where," the words "if either party contends that," in other words to say that the umpire must only consider a 575 change of circumstances when either of the two parties contends that a change has occurred.

§ The Solicitor-General (Major Sir David Maxwell Fyfe)
I hope that my hon. and gallant Friend will see fit not to press this Amendment, for two reasons. I think it is important that the umpire should have regard to all the material facts when he gives his decisions. I do not think there is any dispute between my hon. and gallant Friend and myself on that point. But my hon. and gallant Friend's Amendment would cause the umpire to be restricted to such points as the parties would bring up. There are two definite purviews which courts of appeal and other courts have. Some courts are limited to the issues between the parties; other courts have to take all the circumstances into account, and see that justice is done. A very easy example is the difference between a civil arbitration and a criminal case. I take the view that in this matter it is absolutely vital that the umpire should not be limited, and should take into account all the possible relevant points, even if the parties have not raised them. There may be some circumstance, such as the closing down of a factory or something of that kind, which is most material to his consideration, and I should like him to have the right to consider it. I ask the hon. and gallant Gentleman not to press the Amendment.

§ Commander Galbraith
I beg to ask leave to withdraw the Amendment.

§ Mr. Lionel Berry (Buckingham)
I beg to move, in page 8, line 28, to leave out "shall," and to insert "may."
The Amendments which follow on the Order Paper in the name of my hon. and gallant Friend the Member for Daventry (Major Manningham-Buller) and myself are consequential. The point of this one is to say that the umpire or deputy-umpire shall not be forced to have two assessors appointed by the Minister sitting with him, and that, as happens in other cases, he may if he so desires not be bound by these conditions. In Clause 8, Sub-section (3) assessors are dealt with and it seems to my hon. and gallant Friend and myself that our Amendments were worth tabling, as giving the umpire or deputy-umpire more freedom of action in dealing with cases of this nature. I 576 do not think I need detain the Committee any longer in explaining the Amendments. I think they are fairly self-explanatory.

§ The Solicitor-General
I would ask my hon. Friend to consider whether, when he has heard what I have to say, he desires to press this Amendment. There are two points he has made in advancing this series of Amendments, one that the umpire should have a discretion as to whether he sits with assessors or not. I think the main answer, and I know this will appeal to him, is that both sides in industry are anxious that there should be assessors in these circumstances. When you have both sides agreeing on a view, I do not think the Committee would lightly wish that view to be disturbed. I, therefore, will not go further into the merits of that.
My hon. Friend has put dawn a number of Amendments and I understand it would be an advantage if we considered them all. The other point which he has raised—I think the only one outstanding on the other Amendments—is that he wishes the assessors to be selected from some panel as is mentioned in Clause 8, Sub-section (3). There is a difference there. For the original committee, which is within the purview of Clause 8, the assessors are to be selected from a panel who will have particular knowledge of the circumstances at issue. For the umpire the idea is that the assessors will be selected not from those with particular knowledge but from a smaller panel, who will have a general knowledge and who will be generally acceptable as being willing to contribute that knowledge to assist the umpire in his work. My hon. Friend will see that there is a real difference between the two. The point he has in mind, which I fully understand, is fully met. In view of the explanation I have given I would ask him not to press his Amendment.

§ Mr. Berry
Could my hon. and learned Friend give an explanation of the Subsection proviso which I did not specifically mention? It is the subject of the last of these series of Amendments—in page 8, to leave out lines 31 to 36.

§ The Solicitor-General
That proviso deals with the position where one of the selected assessors falls ill or is not able to attend. Then it may well be, I hope the Committee will agree, that it will be better to get on with the business and 577 finish it rather than delay it in order that two may be appointed. If my hon. Friend will look at the words he will see that the position is well safeguarded, because if an assessor is absent then the first condition is that the consent in writing of the parties must be obtained so that they will not consider themselves prejudiced. Secondly, it is in the discretion of the umpire, so that the parties are safeguarded not only by their own consent but by the umpire having formed the view that it is right that he should sit without an assessor. I think that is consistent with the principle I have put before the Committee.

§ Captain Duncan (Kensington, North)
I do not think my hon. and learned Friend has quite understood the reasons for this Amendment. The Bill as it stands contains provision for Reinstatement Committees appointed by the Minister. There is provision also for assessors, again appointed by the Minister. The only independent man is the umpire, who has now to sit with assessors. That may work all right in practice, but from the point of view of the individual ex-Service man he wants to know not only that he is in fact getting a fair deal but that he is known to be getting, a fair deal, and where there is such an overburden of appointments by the Minister it seem to us that the umpire ought to have some sense of freedom as to whether to sit with assessors or alone, and as he desires. I hope my hon. and learned Friend sees the point, and the fact that industry wants it does not weigh with me in the least. I am far more concerned with what the individual ex-Service man wants—not that he gets justice but that it is known generally that he is getting justice. It seems to me vital if we are to make this umpire an independent man for him to be able to sit with assessors or not. I do not care two hoots what industry wants.

§ The Solicitor-General
I am very anxious that nobody, especially my hon. and gallant Friend the Member for North Kensington (Captain Duncan) should think that there is even a shadow of reason for the view that justice is not appearing to be done as well as being done. I think it is fair, and most of the Committee will agree, that when you get agreement from both sides of industry in modern conditions you do get a position which is satisfactory to the individual, but I will concede 578 that my hon. and gallant Friend may be legitimately entitled to take a completely individualist view on that point. I would like to answer that. The principle of a tribunal sitting with assessors does not mean that the assessors take any part in making the decision. If my hon. and gallant Friend wishes to pursue it further he has only to regard the Courts of Admiralty in this country, which have been a legitimate source of pride to us and also of admiration from other countries, where that principle of sitting with assessors goes right up through all the courts, and has functioned very satisfactorily in the past.

§ Captain Duncan
Must they have assessors, or may they have them?

§ The Solicitor-General
Invariably in a disputed collision case they would sit with Trinity Masters. The parties could dispense with it if they wanted, but the general functioning of Admiralty Courts in cases of that kind is to sit with Trinity Masters as assessors. The assessors do not come to the decision, but they are available for the tribunal to refer to them on any point. When one is dealing with a quasi-legal matter, as we are here, it is most important that the umpire should have the right to have these consultations and should have the persons available for that consultation. I hope, in view of what I have said, that not only my hon. and gallant Friend whom I should have very much liked to convert on this issue, but anyone who may possibly be viewing the matter from the position that he may have to come to an umpire, will know that he is getting the umpire's decision after the umpire has had every possible opportunity of consulting anyone who can help him in the matter.

§ Mr. Berry
In view of the explanation which my right hon. and learned Friend has given, although I still feel it might be preferable to have "may" instead of "shall," I ask leave to withdraw the Amendment.

§ Commander Galbraith
May I ask for an explanation on two points? Certain people who will be coming out of the Services will be neither members of organisations of employers nor members of 579 associations of employed persons. If applications are put forward by such bodies as the British Legion, will they come within the definition of associations of employed persons? Also, can we have a word of explanation on the definition of an employer which appears in line 15 of this Clause? Is there any real difference between that and the definition given in the Clause-itself?

§ Mr. McCorquodale
The question whether such an organisation as the British Legion is an association of employed persons is, of course, a question of fact. The umpire under the unemployment Acts has already decided that the British Legion is such an association of employed persons for making appeals from the courts of referees on behalf of its members. I have no power to say whether the umpire will rule the same way with regard to these cases, but I think it is a legitimate assumption to make. On the other point, I do not know whether there is any difference, but I will look into the question.