§ 10.0 p.m.
§ Sir John Mellor (Sutton Coldfield)
I beg to move:That an humble Address be presented to His Majesty, praying that the Order, dated 18th March, 1948, entitled the Fire Services (Discipline) Regulations, 1948 (S.I., 1948, No. 545), a copy of which was presented on 19th March, be annulled.290 These regulations provide for the constitution in a fire brigade of a disciplinary tribunal from which an appeal lies to the fire authority. Regulation II reads as follows:If the accused refuses or without sufficient cause fails to attend at the time and place appointed for hearing the case or, as the case may be, for hearing an appeal or is in legal custody, the hearing of the case or the appeal may be proceeded with and concluded in his absence.I should mention, first of all, that an appeal lies from the decision of the fire authority to the Home Secretary and, with regard to that, Regulation 15 reads as follows:If the accused having been given not less than seven days' notice of the time and place fixed for the holding of an inquiry under the preceding Regulation does not appear at the time and place appointed or is in legal custody, the inquiry may proceed and be concluded in his absence.It will be seen from that, that it is quite possible that a fireman who is in custody awaiting trial on a charge in no way connected with the matter about which the disciplinary proceedings are concerned, may be entirely prevented from taking any part, or putting up any defence whatsoever, in those disciplinary proceeding. That would appear to be the most astonishing travesty of elementary British justice, and I have been rather surprised that we have not yet received any definite answer from the Home Office to convey their view as to the propriety of a fireman being deprived in those circumstances of the right of defending himself in the disciplinary proceedings. Yesterday I asked the Home Secretary this question:why … he has deprived members of fire brigades while detained in legal custody, of the right of attending disciplinary proceedings against them, and has authorised the conclusion of the hearing of such proceedings in their absence; and whether he will rescind these regulations.The Under-Secretary replied as follows:These regulations were made with the agreement of the National Joint Council for Local Authorities' Fire Brigades in England and Wales, on the understanding that the Council would be free, after further consideration of the details, to recommend amendments. My right hon. Friend will see that the point raised by the hon. Baronet is further considered in connection with any revision of the regulations.First the Home Office must accept entire responsibilty for these regulations. They cannot seek, as the Under-Secretary does not seek, to share responsibility with 291 the National Joint Council, but I think this answer is rather surprising, because the Under-Secretary says that the Councilwould be free after further consideration of the details, to recommend amendments.Details of what? Presumably, the details of the regulations. One would have thought it quite reasonable if he had replied "after experience, and in the light of experience of the working of these regulations, to recommend amendments." That would be a perfectly reasonable proposition. One would have thought the details, as well as the general outline of these regulations, would have been carefully considered before the regulations were made. In regard to the principal points I have mentioned about the fireman in custody being deprived of any opportunity of defending himself, all the hon. Gentleman says is that the point will befurther considered in connection with any revision of the regulations."—[OFFICIAL REPORT, 6th April, 1948; Vol. 449, c. 28.]We ought to understand clearly from the Under-Secretary whether the insertion of those words "or is in legal custody" was deliberate, or were they merely a careless inclusion? Is the Home Office prepared to justify that? I was a little disappointed that the defence, if any, was not disclosed in yesterday's reply. I had a request—I thought it a quite reasonable request—from the Home Secretary to inform him of the particular points I proposed to raise, and I did not hesitate to inform him. I thought in the light of that it was a little surprising on this very simple and straightforward point that the Under-Secretary seeks to reserve his defence until he replies. This matter in connection with Regulations II and 15 which contained the objectionable words "or is in legal custody" can be disposed of quite easily if the Home Office desires to be helpful. Those two regulations could be revoked by Order tomorrow, without the slightest effect upon the rest of the regulations. The revocation of those regulations would in no way impair the functioning of the rest of the regulations. I therefore expect tonight that the Under-Secretary will tell us he is prepared to take that course, because I do not think we on this side of the House should expect anything less.
My hon. Friend the Member for Kingston-upon-Thames (Mr. Boyd- 292 Carpenter) desires to mention a point in connection with Regulation 12, but I wish to refer to Regulation 2. This is a question merely of wording. Regulation 2 requires that a member of a fire brigade, charged with an offence, shall be supplied:with such particulars as will leave the accused under no misapprehension as to the precise nature of the allegations on which the charge is based.I think that a rather tall order. It seems to me asking rather a lot of the fire authority if they are to make quite sure that the man is supplied with such particulars as to leave him under no misapprehension. However exact the full particulars they may supply, and however simple and clear the form may be, there are many people who would probably still remain under some misapprehension. I cannot understand why that Regulation does not simply require that precise particulars of the nature of the allegations shall be supplied to the accused. It seems to me to be expecting too much of the chief officer if he has to make quite sure that the accused remains under no misapprehension. That is only a minor point. On the main point I expect tonight that we shall have a satisfactory answer from the Under-Secretary.
§ 10.11 p.m.
§ Mr. Boyd-Carpenter (Kingston-upon-Thames)
I beg to second the Motion.
My hon. Friend the Member for Sutton Coldfield (Sir J. Mellor) has referred to the answer which the Under-Secretary of State gave in the House yesterday. In its way it really was one of the most astonishing answers that have been given from the Treasury Bench in this Parliament. I understood him to be saying "Here is a statutory instrument, here is a provision which has, since 1st April"—perhaps an appropriate date—"been part of the law of England but this is simply a basis for negotiation, we will consider amendments, etc." That is really an abuse of the power of delegated legislation which Government Departments have. They would not have dared to proceed in that way had they been proceeding by Act of Parliament.
It seems to me quite wrong to make part of the law of England something which, on the showing of the Under-Secretary, should be or might well be amended to its benefit. Really, to provide this, not as a draft for discussion 293 but as an actual statutory instrument, and to say afterwards "We will hear representations," is an abuse of the very considerable powers which the Home Department has. So also, it seems to me, are the provisions to which my hon. Friend has referred, Regulations II and 15. I find it very difficult to understand why it has been decided that a man who is in legal custody can be tried in his absence. If a man is in legal custody there can be no conceivable difficulty in producing him for trial. It is presumably the easiest thing possible to produce a man for trial when he is already in the custody of some public authority. Although there may be circumstances in which it is necessary to try a man in his absence, I do not think that any hon. Member wants that to be done save where it is absolutely necessary. Surely, it cannot be necessary in the case of a man who is in legal custody. My hon. Friend has put that point with great clarity and force, and there is certainly no need to underline it.
I desire to refer to one or two other regulations in this statutory instrument which seem to me also to be liable to criticism, although I should say at once that they are nothing like so bad as are the provisions to which my hon. Friend has already referred. I first invite the attention of the House to Regulation 12, to which my hon. Friend indicated I should be referring. Under that Regulation it is provided that:At the hearing of a case the accused shall be entitled to have the assistance in presenting his defence of a person selected by himself who shall be a member of the fire brigade or, if the fire authority so permit, a member of another fire brigade.There is a proviso, with which I need not trouble the House, that a person so taking part shall not be of equal or superior rank to a member of the tribunal. As I understand that provision, it denies to an accused man the right, if he so wishes, to be represented by solicitor or counsel. If hon. Members will look at Regulation 13, they will appreciate that the penalties which may be imposed by these tribunals are, from the point of view of the accused man, serious for a professional, in the fire brigade. Dismissal is a sentence of professional ruin. Equally a reduction in rank or forfeiture of pay may well be a serious matter. It seems quite wrong 294 that if such a man, when his whole professional future is in jeopardy, desires to be represented by a professional man, he should not be allowed to be so represented. According to the second paragraph of Regulation 12, when it comes to an appeal, apparently professional representation is allowed. Why then should it not be allowed at the actual hearing? Why should a man be denied the right to have such representation if he wishes by those who are trained in advocacy, and thereby possibly obviate the need for going to appeal later on? Even under our military procedure it is perfectly open for an accused man to be represented by counsel before a court martial, and it is equally possible, to take another professional analogy, for a man to be represented by counsel before the General Medical Council. Why, then, is there this exclusion here?
The other point to which I invite the attention of the House is not perhaps as strong, but is one which I think calls for justification. It is the provision of Regulation 3 which provides that the accused shall be ordered to state in writing whether he admits or denies the charge and shall be allowed to give to the chief officer any explanation he may wish. Does that mean that the accused shall be ordered to state whether he admits or denies the charge at once, or will he be given the opportunity to consider the matter, and to take advice? All hon. Members who have any experience of our criminal courts know that people who are not experienced in the law and in their rights sometimes plead guilty, when they have a perfectly good defence. It does look as though there is a possibility in such cases that a man might well be called to admit his guilt of an offence when really he has a perfectly good answer to it. That risk is very much accentuated if he has to give, as it were, a snap answer, and is not entitled to consider his rights before so doing.
Another question on the same regulation arises in connection with the second subsection:The accused shall be allowed to state the names and addresses of any witness to relevant facts whom he may desire to give evidence at the hearing of the case.Does that mean that the accused shall not be entitled to call at the hearing any witness whose name and address he has not 295 previously advised to the authority? Does it mean that he will have to indicate who his witnesses will be, and so indicate to the prosecution the line of his defence? Or does it mean, as the next subsection provides, that when he exercises his right to indicate these witnesses, the authority will see that they are present? I should welcome an assurance from the Under-Secretary that it is the latter interpretation rather than the former which will be applied.
I do not know whether any other hon. Members will desire to raise further points on these regulations, but as the hon. Baronet has indicated, there are a number of points in the regulations which call for criticism, which call for justification and which certainly should not be tacitly accepted by this House. The Under-Secretary, in his answer, indicated that the Home Office realise these regulations are unsatisfactory, but it must be appreciated that there are not many more days during which this Motion for the annulment may be discussed in the House. The time limit for praying against them expires somewhere about the end of the month. Therefore, if this House—not outside bodies, but this House—is to exercise its rights, it is necessary to do so now or close to the present day. I suggest that it would be very much more satisfactory for the Under-Secretary, when he has heard the discussion and considered the representations which may come in from outside, to say either that the simplest thing is to withdraw the whole of the regulations and issue new ones or, at the very least, to follow the appeal made by the hon. Baronet and withdraw Regulations 11, 12 and 15 and, unless justification can be put up for them and an explanation given, possibly Regulations 2 and 3. In any event, anybody concerned with the well being of our fire services cannot but be disquieted that these regulations have been made in their present form. It is in the hope that this position may be improved that I support the Motion.
§ 10.21 p.m.
§ Mr. John Foster (Northwich)
I would like to call the attention of the Under-Secretary to Regulation 11 from a slightly different point of view. As he knows, that regulation provides that the trial of the accused shall take place in his absence.
§ Mr. Foster
I agree. I understand fully that unless there is a power of arrest or provision for the compulsory presence of the accused before a tribunal, there must be some machinery by which the accused may be tried in his absence. But where the regulation will fall down in practice, or where it will cause injustice, is that on the first occasion when the accused fails to turn up it will always be unjust to try him in his absence. Let us put ourselves in the position of a chief officer who is trying somebody accused of one of the offences in the Schedule. The accused has been told that his case will be taken on a certain day at a certain time. He failed to turn up. There is nobody there to explain the position. How on earth can the tribunal decide that he has failed to attend without sufficient cause?
The only way in which this section can work is if it is said, first, that the accused shall appear on such and such a date, and then that if he fails to appear a notice shall be given to him that he will be tried that day week unless he has some sufficient cause for not appearing. On the first occasion, because the man is not there, one cannot say that he has failed to attend without sufficient cause. Let us imagine that he has sufficient cause and that the reason he has not turned up is that he broke his leg on the ice when going to the place where he was to be tried. He has not turned up and the chief officer says, "As far as I know he is without sufficient cause, and we shall proceed to try him." That is bound to happen in every case in which the man cannot get a message to the chief officer that he is unable to turn up because there has been a train smash or he has had an accident or some member of his family has been taken to hospital, or for a thousand and one reasons which may provide sufficient cause. If he is tried, he must go to the trouble, and maybe the expense, of an appeal. I submit that that kind of machinery will not work.
If the Under-Secretary will consider other forms of parallel proceedings he will see that arrangement is always made to adjourn the case and give the man notice that unless he attends next time he will be tried in his absence. Then justice is done or, at least, the injustice of his being 297 tried in his absence because he has broken his leg is very much minimised. As I see the position at present, a man would not be able to prove that he has sufficient cause for absence if something happened to him very near to the hearing of his case.
Under Regulation 12 (1) I do not see why the accused has to get the permission of the fire authority before he can engage a member of another fire brigade. I should have thought that it would be only justice that he could either ask a member of his own fire brigade to defend him or a member of some other fire brigade, but it may well be that he is accused of some offence, say, acting in a manner likely to bring discredit on the reputation of the fire brigade, and, if he is accused of that, maybe his fellow members of his own fire brigade are quite genuinely prejudiced against him because they think that he has done something wrong. He will therefore want some other person to defend him, but it surely is not right that the fire authority which is the very tribunal that may insist on trying him should be the authority whose permission has to be asked by an accused person in order that he may get a person from another fire brigade to defend him. It is not democratic, and it seems to me that it would lead to injustice. I therefore ask the hon. Gentleman to look into that point.
The last point I wish to make is one on which I may be wrong. It has always struck me that, in English law, it is very unjust that there should be power to raise the penalty on appeal. It is very shocking to all other systems of jurisprudence that a man who appeals may have his sentence increased. It shocks all Continental and, I believe, all American jurists. It is mitigated to a certain extent in England by the difference between an appeal against conviction and an appeal against sentence. The reason for that distinction is that, if a man has been convicted and he thinks his sentence may be increased, when, so to speak, he is satisfied with it, and he appeals against his conviction only, and the tribunal find the conviction justified, unless the man appeals against the sentence they are unable to increase that sentence.
Let us imagine a man convicted of an offence who thinks he has been unjustly convicted. The sentence imposed may be 298 very light indeed, but, if the man has to appeal against both together, he is in a very great dilemma, as I have found in practice myself in tribunals which allowed appeals against sentences and convictions together. One has to say to the man that he has got an even chance of getting off his conviction, but, if one says to the man that he may have his sentence increased, that man is thereby deterred against exercising his right of appeal against his conviction because he fears that his sentence may be increased. In other words, if a man were convicted of a serious crime, say, acting in a disorderly manner, and yet a very light sentence was imp used upon him, and he maintains that he has not been convicted justly, consider the difficulty in which he is placed, supposing that he has only been reprimanded. He has a black mark against him, but, if he appeals and loses the appeal, the tribunal may increase his sentence. Therefore, one has to advise a man in such circumstances that the reprimand is nothing, and that he might get off or not, and therefore, we advise him not to exercise that right of appeal, and not to have justice done, because the appeal tribunal may increase his sentence. That is the reason why, in English law, a distinction is made between an appeal against conviction and an appeal against sentence. I ask the hon. Gentleman if he will consider hat point along with the others I have raised.
§ 10.30 p.m.
§ Sir William Darling (Edinburgh, South)
The large and increasing number of civil servants and State employees will be grateful to His Majesty's Opposition for raising this important matter. It does not seem to be recognised that with the extension of the number of public employees, there will be new troubles to be faced, and this is one of them. My hon. Friends have dealt with specific legal points. I should like to deal with a general point which has not yet been referred to. In Part IV it is stated that these regulationsshall not apply to a fire brigade maintained by a Scottish fire authority.Perhaps on that account hon. Members might think there is little excuse for me to speak on this subject. Hon. Members will be aware that, especially during the recent trials of the fire service, powerful reinforcements came from Scotland, particularly to the London Fire Brigade, and 299 there are today in English and Welsh fire services a large number of Scotsmen and Scotswomen, who must look to such protection as I can give them in this House and to the protection of this Measure. This is one of 25,000 documents which pour from the printing presses, unobserved and apparently uncounted, which often impose great disability on our people. But for the interest and energy of my hon. Friend it might never have been before the House.
The second thing I wish to refer to occurs also in Part IV, in paragraph 19 (2), which says:In these Regulations words importing the masculine gender shall include the feminine gender.This raises a very wide and expansive issue. If hon. Members will look at the kind of punishments to which women are to be submitted and relate them to the practice of a good ordinary business, they will see how harsh and hard these ill-conceived and apparently carelessly thought-out regulations are. I would direct the House's attention to the Schedule, "Code of Offences against Discipline." Reading in the one word "woman," it will be seen that:A woman member of a fire brigade commits an offence against discipline if she is guilty of—(1) Disobedience to orders, that is to say, if she disobeys, or without sufficient cause fails to carry out, any lawful order whether in writing or not.If I attempted to apply that to any employees under the care of organised trades unions, I can say that the strikes system, deplorable though it is, would be infinitely more extensive. Let us look further. Any woman commits an offence against discipline if she is guilty ofInsubordination, that is to say, if she is insubordinate by word, act or demeanour.Hon. Members know as well as I do how much expression can be given in word and act, but what amount can be conveyed in demeanour. It seems to me that a senior fire officer charged with carrying out these regulations would find himself with his female staff continually involved in difficulties which the Under-Secretary possibly is too innocent and young to imagine, but I would draw attention to their extreme likelihood. Regulations of this character, ill-conceived and quite inoperative, especially when applied to female labour 300 —and these are women charged with very important duties—seems to me to be out of keeping with good standard practice. I repeat, if any business firm, factory, or organisation attempted to conduct their business on such a disciplinary code as this, I can assure the House there would be a wild revolt almost immediately the regulations were put into practice.
These offences against discipline may, according to Part II (13), be punished bydismissal; being required to resign as an alternative to dismissal ….; reduction in rank; stoppage of pay; reprimand; caution.I hope the Under-Secretary will look with great care into the powerful and weighty legal objections raised by my hon. Friends and that he will also look at the absurdity of using a mighty Nasmyth hammer to crack these gentle fruits, the feminine gender. I hope he will look at it again with a sympathetic mind so far as women are concerned. I see there are two hon. ladies here. I am quite sure no woman member of this House will dare tell her constituents she approved of the regulations in this disciplinary code.
§ 10.35 p.m.
§ Mr. Manningham-Buller (Daventry)
I think that my hon. Friends have served a useful purpose in drawing attention to this order. I do not think any of us would dispute the desirability of a disciplinary code for the Fire Service; there is no difference of opinion on that. But that code should be properly and carefully drawn. I do not want to repeat the cogent arguments made by my hon. Friends, but I do want to draw attention to additional points worthy of consideration. Hon. Members in all parts of the House will, I hope, pay attention to the schedule which purports to contain a list of the disciplinary offences which a member of the Fire Service can commit in the course of his or her duty. My hon. Friend the Member for Edinburgh, South (Sir W. Darling), has called attention to the first two offences listed in that schedule, but I would like to know what is meant by the third:Abuse of authority, that is to say, if he abuses his authority by oppressive conduct.Does that mean that someone gives a lawful order or command or exercises his authority in the fashion of a sergeant-major as portrayed in the music halls? Is that "oppressive conduct"? These 301 offences ought to be defined with some degree of precision. But more important than that to which I have referred is that dealing with corrupt practice in paragraph (7):(a) improperly uses his position as a member of the fire brigade for his private advantageDoes this mean financial advantage? Private advantage may take a multitude of forms. The definition of corrupt practices in paragraph (b) says:fails to account for, or to make a prompt and true return of, any money or property which comes into his possession in the course of his duties;That, to me, is an astonishing definition of corrupt practices. It means that a man will be liable to be convicted for that offence if he delays in handing over money or property for a perfectly innocent reason, or if he makes an inaccuracy or mistake in his return. I am sure that the intention is that a man should only be found guilty of corrupt practices if he has had what we lawyers call a mens rea, but there is nothing here to distinguish that. The chief officer who will determine this matter will look up the code to see exactly what is meant by "corrupt practices," and if he is satisfied that a prompt and true return has not been made, he will not go farther, but find the man or woman guilty of corrupt practices. That is an entirely unsatisfactory position.
Coming to the mode of control, one finds that it is here that the methods in force in the Fire Service are different from those in the Services or the Police Force. Here, the chief officer, except where a fire authority has directed under paragraph 5 that the case should be heard by them, may hear the case, or delegate the hearing to a tribunal. The accused person has no option. Any soldier brought before his commanding officer has the right to elect to go for trial by court martial. Any man brought before a police court on an indictable offence has the right at his own option to go for trial. No such right is given to a member of the Fire Service. Surely these men should have that right.
It may be that a member of the Fire Service thinks the chief officer bears him a grudge. It may be a belief that is entirely unfounded, but if it exists is that member of the Fire Service likely to think that justice has been done to him by a 302 determination against him by the chief officer? Provision is made for the hearing of an appeal, but attention has already been drawn to the curious discrepancy with regard to legal representation. I am sure the House recognises that where discipline is administered in this manner inside a service, once there has been a determination of guilt there are all sorts of arguments against upsetting that decision. It is a natural instinct to say that it will look bad for discipline if the decision of the chief office is reversed. It becomes, therefore, more necessary in my opinion that the trial before the chief officer should be not only fair but it should appear to be fair. It it even more necessary, when it is provided that the accused shall have the right to cross-examine and call witnesses, to ensure that if he does not feel competent to do that himself he can employ someone trained in that occupation.
I hope that the Under-Secretary will give the clearest possible assurance that this most unsatisfactory code will be reconsidered and redrafted, and that a new draft will be brought in at the earliest possible moment. He may say that there must be some code of discipline in force for the time being, but there is no reason why the course I have suggested should not be taken. I feel sure that, if it is, it will be welcomed by the members of the Fire Service and will lead to better discipline and better administration. The House will realise that the punishments that can be imposed can be very severe indeed. A reduction in rank, for instance, may mean a loss of pay which could exist for a long time and might' handicap an individual from ever securing promotion. It may well affect his pension rights. Under paragraph 14 there is a right of appeal to the Home Secretary, but only if the reduction in rank isto a rank other than the rank in the brigade immediately below the one from which he was reduced.There is no right of appeal to the Home Secretary if there is a reduction of one rank. Is it right that there should not be in view of the consequences? I ask the Under-Secretary to say that that is another cogent reason for reconsidering this matter.
There is one further and final objection. It should not be left to the Secretary of State, as it is under paragraph 14 (2), to 303 determine without hearing representations from the accused that the appeal can be decided without taking oral evidence. It seems to me that by that, the right of appeal loses much of its efficacy. I support the points raised by my hon. Friends. I have not repeated them but have added to them. I hope that, in view of all these observations, which are not without force, the Under-Secretary will say that the matter will be reconsidered immediately.
§ 10.45 p.m.
§ The Under-Secretary of State for the Home Department (Mr. Younger)
When disciplinary regulations for services of this kind are brought into force, it is a matter of considerable importance to a large number of people, and, indeed, it is a matter which should be carefully considered by this House. I therefore make not the smallest complaint that this topic should have been raised by the hon. Baronet the Member for Sutton Coldfield (Sir J. Mellor) tonight. I think that perhaps he, and those hon. Members who followed him, hung rather ponderous arguments upon slender facts. Before I have finished my remarks I hope that we shall have come very near together indeed in our view of what should be done. The hon. and learned Member for Daventry (Mr. Manningham-Buller) said that he hoped that even if I were to say that these regulations must remain in force for the time being, I should be able, at any rate, to give an assurance that there would be a very early revision of them. I think I can give that assurance.
I think I should immediately explain something of the process whereby these regulations have come to be put before the House, and what the intention is regarding their revision. The hon. Baronet who opened the Debate and the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) complained, to some extent, of the answer which I gave yesterday, in which I merely referred to the agreement which had been reached with the National Joint Council. I am sorry if they did not think that that answer was sufficiently informative, and I take this opportunity to enlarge upon it. I have no doubt that hon. Members who are interested in this subject are familiar with, or at any rate have looked at, Section 17 304 of the Fire Service Act of 1947, which is the governing provision relating to the making of the Disciplinary Code.
Under that Section, as was inevitable, the responsibility for the introduction of disciplinary regulations lies fairly and squarely upon the Home Secretary. I do not seek for a moment to evade that responsibility. At the same time, it is clear to anyone who reads Section 17, that very particular provision is made for consultation with any suitable representative body which may exist, and that it is the intention that the regulations for which the Secretary of State must ultimately take responsibility should be devised, or thrashed out, in consultation with what one might call both sides of the service—the employing authorities and those who are employed—and that great regard should be given by the Secretary of State to the views of any representative body.
In the first place, if any representative body makes representations to the Secretary of State, he is under an obligation not to reject any recommendation without a reference back to the representative body. If the Secretary of State himself, without receiving a recommendation, wishes to put forward regulations of his own, then he is bound to put his own proposals in draft before the representative body. I want to emphasise that the Secretary of State is clearly intended by the Act, before he takes his final decision and brings a regulation before this House, to have paid very great regard to any representative body which exists. A representative body does exist. It is the one I referred to in my answer yesterday, namely, the National Joint Council for Local Authorities' Fire Brigades in England and Wales. This order applies only to the services in England and Wales.
§ Mr. Younger
That depends on whether women are selected by the branch of the service concerned. The Council itself is made up of 43 members. It has, so to speak, an employers' side and an employees' side. On the employers' side there are the County Councils Association, the Association of Municipal Corporations, and the London County Council, all of whom are represented. On the employees' side there are the National Association of 305 Fire Officers and representatives of the union. Whether or not there happen to be women representatives chosen by these bodies to sit on the Council is not a matter over which the Home Secretary would have any control.
That is the body which exists. It is the suitable representative body for consideration of these matters under Section 17 of the Act. Normally, I think it can be said, the initiative in revising or altering the disciplinary code might be expected, under the Section, to come from the representative body, and to be put up to the Secretary of State by them. There is provision also for the initiative to be taken by the Secretary of State. In this instance, the Fire Service is being transferred from the National Fire Service to the local authorities. There was urgent need for the code under which the National Fire Service operated to be adapted and to be in force in its new adapted form in time for the transfer on the appointed day of 1st April. There was, as hon. Members might imagine, great pressure of work, not only upon those concerned in the Home Office with the transfer, but also upon the representatives of the officers and men and of the local authorities.
It was agreed between the Home Office and the Council that in this instance initiative could be taken by the Secretary of State, that the first draft should be drawn up by him, and that the Council should have an opportunity to consider it. The draft was drawn up and it was substantially the same as the code which had operated successfully for nearly seven years in the National Fire Service. Substantially, the only alterations made in that code were those necessary to adapt the terminology to suit the local authorities' service. This draft was considered in detail by the Council, by the representatives of both sides of the service, and it was accepted by them on the understanding that in the light of experience and when they themselves had time to give the matter rather fuller consideration, the Secretary of State would be prepared to consider an early revision.
The hon. Baronet complained of the use of the words in the answer to yesterday's Question "after further consideration of the details." I am sorry if that was not clear. Of course, it would be open to the Council to suggest revisions which were not merely revisions of detail. It 306 would be perfectly open to them to do so but, in view of the fact that they have carefully considered this and expressed agreement on all the general principles, it was felt that it was only likely that they would require very early revision of matters of detail which had not, perhaps, occurred to them on first consideration. It is not only on details but on the regulations as a whole that they are entitled to have further consideration and to suggest early revision.
The regulations now before the House contain virtually nothing new. There are one or two minor suggestions made by the Council and incorporated in the regulations. It was obviously necessary that some regulations should be brought into force by Parliament early. It was felt necessary to follow the code which had proved satisfactory, and to which, as far as I am aware, no objection was taken by any of the interested parties, and to have this understanding to which I have already referred, that there should be a very early revision as soon as the service representatives had had time to consider the code should they wish to have revision made. Probably, in fact, it would be much more effective if we were to have revision after there had been some brief experience of the new service under the local authorities.
I think, in view of what I have said, hon. Members will agree that any points which may be thought suitable for revision should be first submitted to the form of negotiation which is laid down under the Act and that we should not attempt to alter the regulations without full opportunity for the Council to consider and make its own recommendations on the matter.
May I put to the hon. Gentleman a question on that? I am grateful to him for the explanation of how the National Joint Council works, but does he not agree that, on principle, as this House has responsibility for legislation, whether it is made by statutory rule and order or by statute, it really is not a discharge of our responsibility if we merely leave it to other bodies to discuss what changes should be made? Is not the hon. Gentleman going to deal with the very serious issues which have been raised from this side? They really demand an answer. Finally, in view of his statement that the 307 Secretary of State can exercise his initiative in putting forward suggestions or alterations in this code with the National Joint Council, will he not, at least, say that all the suggestions which have been put forward from this side of the House, with a view to improving this code, will be considered by the Home Secretary and put by him before the Joint Council for their consideration?
§ Mr. Younger
I really do not know why at this stage the hon. and learned Gentleman thought fit to intervene on this point. I have not made the slightest suggestion that the House should not take full responsibility for these regulations. I welcomed the raising of this matter by the hon. Baronet. In my reply to the single point raised in the Question yesterday, I specifically said that this would be brought to the notice of the Joint Council, and I was, in fact, going to say in my closing remarks that I propose to ensure that the Joint Council does consider all the points raised in this Debate.
I do not think that there is any question of the Secretary of State or this House abdicating their responsibility for any regulations which may eventually be debated or approved. But I hoped that in my earlier remarks I had equally made it plain that undoubtedly a procedure was envisaged by the House which also places great responsibility for the giving of advice upon this Council. I was explaining in what way the letter and the spirit of Section 17 of the Act had been observed in drawing up these regulations, and I really do not think that there was any need for the hon. and learned Gentleman to intervene at this stage, or, indeed, to suggest that I was not going to deal with the points that were raised. I hope that I shall be allowed a few moments to deal with some of them—though some of them were points of detail upon which I have had no notice, and I am not prepared to give complete and full answers to all the points. I hope that I shall be able to satisfy the House why one or two of these matters on which complaints have been made have appeared in the regulations.
§ Sir J. Mellor
Does the hon. Gentleman appreciate that this House will lose all control over these regulations after 14 days from 19th March when they were laid before Parliament? The hon. Gentle- 308 man says that there is to be consultation on the draft and so on, but they are now the law of the land, and within the fixed period from the date on which they were laid before Parliament we have some control. After that period we have no control whatever, and surely it is not reasonable for the hon. Gentleman to expect us to wait until the Home Secretary and the Joint Council manage to come to some arrangement, for we shall have no control by the time that arrangement has been come to.
§ Mr. Younger
It would not be reasonable to expect the House not to comment upon these regulations and, of course, they have a perfect right to reject them if they wish; but I was hoping that in my speech I had said enough and that it was reasonable for the House, in the light of my explanation, to pass the regulations, on the assurance that I have given that all parties concerned in the Fire Service have agreed, and that there is an understanding that they will be further considered and revised if consideration shows that revision is necessary—revised very shortly—and on the further assurance that everything said in this Debate will be brought to the attention of the Council when it comes to give that consideration. I really think that is a reasonable proposition. I fully understand that before my explanation was given about the way in which these regulations had come to be made and presented to the House there might have been some doubt in the minds of the hon. Baronet the Member for Sutton Coldfield and others, but I do think that on the assurance I have given he might well be satisfied.
May I just deal with the main points raised in the Debate. There is, first, the question raised under Regulations 11 and 15, where it is provided that the case or the appeal may be proceeded with and concluded in the absence of the person accused, and also if he refuses or without sufficient cause fails to attend at the time and place fixed for the hearing or is in legal custody. I entirely agree that one might presume that with a person in legal custody it should be possible to produce him, and that unless there is very great reason, the individual should not be tried in his absence. The reason why the regulation was proposed was that there are certain types of case in which, so I am informed, it is impossible, or, at any 309 rate, unreasonable, that a person should be produced. I am not aware that any case has actually arisen—but these words were contained in the previous code which has been in existence for six or seven years and on which no complaint has been made and on which no injustice has arisen.
We might have the case of a person detained in Broadmoor during His Majesty's pleasure. If we had a relatively trivial disciplinary case pending it might be essential that it should not be left in the air over a long, undefined period, especially if other people were involved. It might equally be undesirable that the man should be produced. Legally there is not power to produce a person for this purpose from legal custody from a prison in Scotland. I know that that is a situation which it is not competent for me in these circumstances to discuss, but I understand that there are these exceptional types of cases for which this provision was originally put into the National Fire Service code and which appear in the present regulations. But all these matters could be and will be cleared up on revision, now that they have been raised in the House.
§ Mr. J. Foster
Can the hon. Gentleman give the wording of the Amendment of the regulations, as it does not really make much sense from the point of view of construction. He will see the alternative is not a logical alternative: it is, if the accused fails to attend—or is in legal custody. That is not an alternative.
Mr. Deputy - Speaker (Mr. Hubert Beaumont)
The hon. Member was rising on a point of explanation, but he is now making another speech.
§ Mr. Foster
If the hon. Gentleman looks at the so-called alternative he will see that it is not an alternative.
§ Mr. Younger
I am afraid that is too abstruse for me. I should have thought that what is in the phrase is perfectly clear. I am bound to say that I have not entirely taken the point of the hon. Gentleman because it seems to me that, whatever the view of a professional draftsman might be, to the ordinary man the regulation is perfectly clear and intelligible.
§ Mr. Boyd-Carpenter rose—310
§ Mr. Boyd-Carpenter
I am much obliged to the Under-Secretary for his habitual courtesy. Can he give an assurance that in no case will a man detained in prison, in Scotland if you like, who is willing and anxious to face a charge before a Fire Service tribunal, be tried in his absence when that absence is solely due to the fact that public authorities are detaining him elsewhere?
§ Mr. Younger
I do not think that I can really give an assurance of that kind because the difficulty is that a disciplinary charge which might be pending might be one which involved many other people, and it would be improper to say that the case should not be proceeded with in any circumstances because it happens that one person was in a condition where he could not be legally brought. I do not think it would be proper for me to give an assurance in those circumstances. One would leave a charge in the air for an indefinite period. It is an unfortunate provision, and no doubt the correct way would be to amend the law of Scotland, but that is quite outside my province here, although perhaps it is a matter which might be considered.
There was a further question of representation under Regulation 12 which was raised by the hon. Member for Kingston-upon-Thames. This is not an altogether unfamiliar issue, particularly as it affects legal representation by solicitors or counsel at tribunals which are not courts of law. It is a matter in which some sense of proportion is desirable. As he appreciates, it is provided that in all cases of appeal a person representing the accused need not be a member of a fire brigade, but that at the original hearing he must be. This point was carefully considered by the Council, and they came to an agreement among themselves on this particular formula. It has to be remembered that the vast number of cases at first hearing are cases which are readily settled. One does not want to turn hearings of that kind into courts of law where lawyers appear and argue points of evidence, lengthen the proceedings and so on. This is not an unfamiliar issue, and the best defence of it is that the system under this regulation is one which appears to have worked perfectly well in the past 311 There is again nothing new in what we are laying down here, and it is made with the approval of all those concerned in the working of the system.
§ Mr. Manningham-Buller
Would the Under-Secretary answer this important point? Is there any precedent for a man being found guilty of corrupt practice without having an opportunity of legal representation, because he can have that stigma placed on his name and that stigma may remain after a trial without legal representation? Would the hon. Gentleman say that that point will be further considered and considered favourably if the Home Secretary can induce favourable consideration?
§ Mr. Younger
I certainly will give an undertaking that it will be considered. I can say nothing about whether there is a precedent. That is something of which I would require notice before I can give any assurance. Those are the only points of which I had previous notice—the question of legal custody, and the question of representation.
The hon. Member for Kingston-upon-Thames also referred to Regulation 3, and asked for elucidation and further interpretation of some of the phrases there, and whether the accused would be given time to take advice before he declared himself. That, of course, does not appear one way or the other in the regulations. Again I can only state that this code has operated satisfactorily, the interpretation in practice has been uniform, and over six or seven years has given rise to no complaints. I should have thought there was little likelihood of any party to the proceedings so interpreting the regulations that a man would be compelled to admit or deny his guilt before he had opportunity to consider his position or take advice.
I think the points raised by the hon. Member for Northwich (Mr. J. Foster) would require detailed consideration, and I do not think I can be expected to deal with them fully now, without notice. I might perhaps refer to his point on Regulation 11, where he seemed afraid that a man who failed to appear might have had a perfectly good reason for not appearing but the tribunal might nevertheless proceed with the case. I should have thought myself, on the interpreta- 312 tion of the regulation, that it would lie on the tribunal to satisfy itself positively that the man had absented himself without sufficient cause; that they could not continue on the ground that he refused, or without sufficient cause failed to attend, without having taken some positive steps to ascertain that that was the case. These are detailed matters, and largely matters of service practice, and they have not, to my knowledge, given rise to any complaints in the past.
I do not think that I should attempt at this stage to deal with the numerous points that have been raised of which no previous notice was given. They were mostly of a distinctly legal character. I should like to say this in conclusion. The hon. and learned Member for Daventry suggested that, even if these regulations must remain in force now, there should be an assurance that they would be revised at an early date. That is precisely the position as understood by the Secretary of State and all parties represented on the Council.
Suppose for a moment that we were to accept the Prayer, we would then be left without any regulations. That I think is not acceptable to any member of the House. We could remake them rapidly, but the hon. and learned Gentleman will recognise that the numerous points which have been raised tonight could scarcely be dealt with with justice if we were to remake them overnight. If he and other hon. Members will look at Section 17 of the Act, they will see that it would be improper if the Secretary of State were to revise these regulations without going back to the Council. If substantial alterations were to be made in these regulations it would be necessary to take them back to the Council for full consideration. If the House agrees that that is the correct procedure, there is nothing between us on this side and those who have raised these criticisms.
I am not complaining of the Debate, or of the criticisms, but the House should realise that it would be quite improper, in view of this provision, to attempt to alter this draft without going back to the Council and giving it opportunity for revision. That is precisely what we propose. I hope, therefore, the House will be prepared to approve the regulations on the assurance I have given and in the certainty that the procedure we have 313 adopted has been agreeable to all the persons concerned, the representatives of the men as well as the representatives of the employing authorities. They are satisfied with the procedure and they are prepared to recommend to the Secretary of State any revisions which seem necessary to them at the earliest possible moment.
§ Mr. Manningham-Buller
I am not quite clear as to what the hon. Gentleman said in his last remarks. Am I to take it that if these regulations are allowed by the House at this time, there will be fresh regulations laid before us at the earliest possible moment, having regard to the criticisms which have been uttered from this side, some which have met with some support from the hon. Gentleman?
§ Mr. Younger
The undertaking which I gave is that every point which has been raised in the Debate will be brought to the notice of the Council. Assurances have already been given to the Council—and they stand—that they will be given the opportunity of considering these regulations and if necessary they will be able to recommend necessary revisions. I cannot stand here and give assurances that when they have been discussed by all the organisations affected by the regulations it will be necessarily agreed that new regulations will be immediately necessary, but if it is thought that modifications are required I will certainly give the assurance that my right hon. Friend will not delay the bringing forward of revised regulations.
§ 11.17 p.m.
§ Sir J. Mellor
I think the House has been placed in an intolerable position in this matter. The Under-Secretary has given a very courteous and lengthy reply, but I am afraid that the result is most unsatisfactory. He says the matter is to be discussed. He says there will he further regulations, as though these were only the basis for discussion, but they will soon pass beyond the control of this House. If he had given an assurance that within a specified time a complete set of new regulations would be laid before
§ Parliament, then I think that would be satisfactory to us, because we could then, if we were dissatisfied, move to annul them; but he has not given us an assurance that any fresh regulations w111 be made or that any amendment will be made. Even if he did bring in amending regulations, that would not necessarily be satisfactory to us. Unless we have a whole fresh set of regulations laid before us we should not regain control. Therefore, I am afraid that the Under-Secretary has not satisfied me, at any rate.
§ If delegated legislation is to be presented in this form, in draft, then it must be worked on a different procedure to this. There was an old procedure by which legislation was laid before Parliament, but this is done under the new procedure and we have only a matter of a month or five weeks in which we can object by means of a Prayer. It is quite intolerable for the Under-Secretary to expect us to take everything on trust and accept his assurance that everything will be discussed between the Home Secretary and the appropriate bodies. That is not good enough for us. He gave no satisfaction whatever on the point about legal custody. Surely that could be dealt with. The Home Secretary could make an order tomorrow eliminating "or is in legal custody" from Regulations 11 and 15. He could do it tomorrow and he has not even offered that concession. The hon. Gentleman raised the exceptional case of a man being absent. Surely that can be provided for in the regulations. Surely he can devise regulations that would ensure that no grave injustice is likely to be inflicted. In view of the most un satisfactory answer which we have received tonight I propose to divide the House.
That an humble Address be presented to His Majesty, praying that the Order, dated 18th March 1948, entitled the Fire Services (Discipline) Regulations, 1948 (S.I. 1948, No 545), a copy of which was presented on 19th March, be annulled.
§ The House divided: Ayes. 16; Noes, 95.315
|Division No. 121.]||AYES.||11.20 p.m|
|Agnew, Cmdr. P. G||Foster, J. G. (Northwich)||Studholme, H. G.|
|Bowen, R.||Fraser, H C. P. (Stone)||Thornton-Kemsley, C N|
|Buchan-Hepburn, P. G. T||Maekeson, Brig. H. R.|
|Conant, Maj. R. J. E.||Manningham-Buller, R. E||TELLERS FOR THE AYES|
|Darling, Sir W. Y||Scott, Lord W.||Sir John Mellor and|
|De la Bere, R.||Smith, E. P. (Ashford)||Mr. Boyd-Carpenter|
|Drayson, G. B||Strauss, H G. (English Universities)|
|Anderson, A. (Motherwell)||Griffiths, W. D. (Moss Side)||Pryde, D. J|
|Awbery, S. S.||Guy, W. H.||Ranger, J.|
|Balfour, A||Hale, Leslie||Roberts, Goronwy (Caernarvonshire)|
|Barton, C.||Hannan, W. (Maryhill)||Scollan, T.|
|Bechervaise, A. E||Hardy, E. A.||Segal, Dr. S.|
|Bins, G. H. C.||Henderson, Joseph (Ardwick)||Sharp, Granville|
|Blackburn, A. R||Herbison, Miss M||Shawcross, Rt. Hon. Sir H. (St. Helens)|
|Blenkinsop, A.||Hobson, C. R.||Silverman, J. (Erdington)|
|Blyton, W. R.||Holman, P.||Simmons, C. J.|
|Boardman, H.||Hoy, J.||Smith, S. H. (Hull, S.W.)|
|Bowden, Flg.-Offr. H. W.||Hubbard, T.||Soskice, Sir Frank|
|Braddock, Mrs. E. M. (L'pl, Exch'ge)||Hutchinson, H. L. (Rusholme)||Sylvester, G. 0.|
|Braddock, T.(Mitcham)||Jeger, Dr. S. W. (St. Pancras, S.E.)||Taylor, R. J. (Morpeth)|
|Brown, T. J. (Ince)||Johnston, D H.||Thomas, D. E. (Aberdare)|
|Buchanan, Rt. Hon. G||Jones, D. T. (Hartlepools)||Thorneycroft, Harry (Clayton)|
|Carmichael, James||Keenan, W.||Waited en, E.|
|Chelwynd, G. R||Kendall, W. D||Wallace, H. W. (Walthamstow, E.)|
|Coldrick, W||Kinley, J.||Weitzman, D.|
|Collindridge, F.||McAdam, W.||Wells, W. T. (Walsall)|
|Colman, Miss G. M.||Maclean, N. (Govan)||West, D. G|
|Corlett, Dr. J.||McLeavy, F.||White, C. F. (Derbyshire, W.)|
|Deer, G.||Mann, Mrs. J.||Willey, F. T. (Sunderland)|
|Dobbie, W.||Mitchison, G. R.||Williams, D. J (Neath)|
|Ede, Rt. Hon. J. C.||Morgan, Dr. H. B.||Williams, J. L. (Kelvingrove)|
|Evans, A. (Islington, W.)||Morris, P. (Swansea, W.)||Williams, R. W. (Wigan)|
|Evans, John (Ogmore)||Mart, D. L.||Williams, W. R. (Heston)|
|Fairhurst, F.||Moyle, A.||Willis, E.|
|Farthing, W. J.||Nicholls, H. R (Stratford)||Wills, Mrs. E. A.|
|Forman, J. C.||Pargiter, G. A.||Younger, Hon. Kenneth|
|Ganley, Mrs. C. S||Pearson, A.|
|Gilzean, A.||Perrins, W.||TELLERS FOR THE NOES|
|Granville, J. E. (Consett)||Porter, G. (Leeds)||Mr. Wilkins and|
|Griffiths, D. (Rother Valley)||Price, M. Philips||Mr. George Wallace.|
Question put, and agreed to.