CLAUSE 9.—(Compulsory acquisition of rights under contract.) (Hansard, 11 October 1946)

§ The Attorney-General
I beg to move, in page 6, line 9, after "therewith," to insert: not being a contract for the rendering of personal services. I think this Amendment will commend itself to the Committee without any long argument from me. Under the Clause, as it stands, it is possible that the Minister might secure the transfer to himself of a contract for personal service and so be able, in effect, to conscript into his service private individuals who, although under a contract to serve their existing employer, might not wish to enter into the service of the Minister. I say it is possible that the Clause as framed may have that result. Under similar, but not exactly comparable Clauses in the Companies' Act, the House of Lords has held! that Parliament could not have intended to affect contracts for personal service in that way without some express words indicating an intention so to do, but His Majesty's present advisers always anxious, where so to do is not inconsistent with the public interest, to protect and advance individual liberty want to make this position perfectly clear from the beginning, and therefore we desire to amend the Clause in this way so as to put the matter beyond the possibility of doubt.

§ Mr. Mikardo
Could I ask the Attorney-General for a little more information? The effect of the Amendment upon a person holding a contract of personal service with a company on which the Minister had served notice to take over its assets, is not quite clear to me. I think the Government are right in saying that they should move an Amendment to ensure against that person being directed willy-nilly into Government service, but is not this person then put in the position in which he loses his rights under his-contract of personal service with his employers? Clearly they cannot continue to employ him since they lose their plant and equipment to the Minister. Equally he has no claim upon the Minister. Does not the operation of this Amendment, in fact, deprive any person with a contract of personal service to an employer who receives a notice under this Clause, of any protection either from the Government or his employer?

§ The Attorney-General
The answer to that question is that if the Minister made a direction requiring a company to transfer its assets, that direction would not involve the transfer of contracts for personal service. Whether it effected a termination of those contracts as between the servant and the company concerned is a matter which would depend on many circumstances, of which the direction would be only one. I contemplate that it might have that effect in such cases, but the remedy of the individual concerned would be against the company and not against the Minister in such a case.

§ Mr. Mikardo
I beg to move, in page 6, line 25, to leave out "Minister", and to insert "Lord Chancellor".
I am very conscious of rushing in where legal archangels fear to tread. I know it will be said that we have many precedents for a position in which a Minister may appoint a judge to hear a dispute between himself and another party, and in which in fact a Minister of the Crown is the only person given the right unilaterally to appoint an arbiter between himself and some other party. But it seems to me that in a matter of such importance, we should not be overswayed by precedent. In two places in this Bill the Minister is given power to present certain facts to a person, and that person has the right to offer objections. If he refuses to avail himself of the right the objctions to the proposed action of the Minister are to be heard by an arbiter chosen by the Minister. It may be argued that in many fields of our legislation, such as inquiries under the Ministry of Health or the Ministry of Town and Country Planning, there are cases in which persons and tribunals are set up by the Minister to hear objections. They do so very impartially and judicially and have a very fine record. I do not think that should be allowed to blind us to the fact that it is improper, in any case in which it can be avoided, for a man to be the judge in his own cause, or to appoint a judge In his own cause.
This Amendment is an innocuous little Amendment which merely ensures that one of the legal members of the Government, rather than the Minister himself shall be the authority for selecting the arbiter in any dispute between 520 the Minister and any person on whom he has served the notice. I am aware that this may not be held to accord with precedent, but it seems to me that the function of Parliament is not slavishly to tie itself to precedent, but gradually to introduce departures from principles which, although they may have a long history, are clearly not in accordance with present day ideas of relations between Government and subject.

§ Mr. Wilmot
If in fact this provision dealt with the appointment of an arbiter or a judge, there would be much substance in my hon. Friend's argument. But it deals with the person who is to ascertain the facts—a fact finder. If there is an objection to the notice which has been served, the person who feels aggrieved can state his objections, and this gives the Minister power to appoint someone to consider the facts, and report to the Minister who acts on that report. It is entirely within his discretion. I do not think it would be an improvement to ask the Lord Chancellor to find a person who would consider the facts and report to the Minister. It is better for the Minister to appoint some person who is knowledgeable about the subject to be discussed. There are precedents for this. Recent Statutes giving analagous powers of compulsory acquisition, such as the Acquisition of Land Act, have adopted this procedure. I do not think there would be any improvement effected by adopting my hon. Friend's suggestion.