DIRECTED PERSONS (APPEALS)

HC Deb 06 May 1948 vol 450 cc1576-98

10.9 p.m.

Mr. Boyd-Carpenter (Kingston-upon-Thames)

I beg to move, That an humble Address be presented to His Majesty, praying that the Order, dated 6th April, 1948, entitled the Control of Employment (Directed Persons) Amendment Order, 1948 (S.I., 1948, No. 708), a copy of which was presented on 7th April, be annulled. The statutory instrument with which the House is concerned this evening is an Order which operates by adding one new sub-paragraph to paragraph 4 of the Control of Employment (Directed Persons) Order, 1943. That main order regulates the machinery for the direction of labour, and the few, but, in my submission, important words which it seeks to add are, quite obviously, a matter of considerable interest to all persons liable to be directed. The words of the new sub-paragraph it is sought to add are: A national service officer in considering the recommendation of the Board and deciding upon the action which he should take shall have regard to any directions which the Minister may give, either in respect of that particular case, or in respect of any description or class of case. The effect of that, as I understand it, is that it relates solely to directed persons or their employers who have taken advantage of the procedure which is laid down for appealing against a direction, or against the refusal of a National Service officer to withdraw a direction; and they go to the local appeal boards which deal with appeals of this sort. That having been done, the case goes back to the National Service officer. What this new order does is to provide that the National Service officer, when dealing with people who have gone through the procedure of appeal, shall, in deciding what they are actually going to do, have regard either to general or to special and specific directions of the Minister. What, very briefly, it comes to is that the Minister is seeking to intervene as to the fate of people who have already undergone successfully the ordeal of appeal to a local appeal board. It is obvious that if that power is fully exercised it will stultify and nullify the whole value of appeals under the system, and make the system of appeals simply a farce.

This order has undergone the scrutiny of the Select Committee on Statutory Instruments, which reported in these terms: Your Committee have considered the Control of Employment (Directed Persons) (Amendment) Order, 1948 (S.I., 1948, No. 708), a copy of which was presented on 7th April and are of the opinion that the special attention of the House should be drawn to it on the ground that it appears to make an unusual and unexpected use of the powers conferred by the Statutes under which it is made. That is to say, the Select Committee whose duty it is to invite the attention of this House to orders on that ground or some other grounds have thought it right to draw the attention of the House to this order. The fact that the Select Committee have dealt with it has the incidental advantage that the House can also be in possession of the grounds the right hon. Gentleman had in mind in making the order, because attached to the Select Committee's, report, printed as an appendix, is a memorandum by the right hon. Gentleman's own Department setting forth the reasons for the making of the order. I invite the attention of the House to a few words in that memorandum. The right hon. Gentleman is aware of them himself, and if I quote any part of the memorandum which may give a misleading impression without the quotation of another part, I hope that the right hon. Gentleman will see that that is made clear. The part that seems to be material is in the second paragraph, as follows: The necessity for an amending Order has arisen out of a Judgment given in the Divisional Court in May, 1946, in the case of Winter v. Simms Motor Units Limited." I may comment, in passing, that if this is a necessity it is a somewhat curious commentary that it is a necessity which it has taken the right hon. Gentleman's Department two years to remedy. It goes on to summarise, if I may respectfully say so, with great clarity, the position which it is desired by this order to overrule. The case went to the Divisional Court on appeal, and it was submitted in evidence that in deciding to issue a reinstatement direction after considering the recommendation of the Local Appeal Board, the National Service officer had acted on instructions from the Department. The findings of the Court were to the effect that under the terms of the Essential Work Order, the National Service officer was given discretion to decide what action he should take after considering the Board's recommendation and was in fact required to exercise his discretion, and that as in the case in question the National Service officer had not exercised his discretion but had acted upon instructions, the reinstatement direction issued by him was invalid. That is to say, the court had said, and the report of the case corroborates the Ministry's summary, that where a National Service officer had not exercised his discretion—in this case he had simply acted as the vehicle of the Minister's instructions—the direction was invalid. That was two years ago, and now, exactly two years after that decision, the right hon. Gentleman has decided that there is a necessity by this order to overrule that decision of the court. I suggest to the House that he goes a good deal further than that in this order. As the right hon. Gentleman will recollect, on the 22nd April, my hon. Friend the Member for Sutton Coldfield (Sir J. Mellor) asked him a question about this order. The right hon. Gentleman answered him in these words: The appeal boards do not give decisions but make recommendations. The purpose of the order is to make it clear that the National Service officers, when deciding what action to take on a recommendation from a local appeal board, must act in accordance with general instructions issued by me from time to time. There were a number of supplementary questions, and the hon. Member for Chichester (Mr. Joynson-Hicks) asked the right hon. Gentleman whether the effect of the order was not to give the National Service officer the right to overrule any appeal board, and did not that destroy the confidence of the people of this country in the appeal boards. The right hon. Gentleman merely said: The general instruction is not changed. All this does is to make it necessary for all National Service officers to take cognisance of any general instruction which may be issued from time to time as to the interpretation of the regulation. I asked whether the order did not go further and give the Minister power to issue not only general directions but particular directions in particular cases. I ask the House to note the reply because it seems to be quite misleading. The right hon. Gentleman said: No, Sir. It may be that an interpretation has been given and subsequently reversed,"— I do not know what that means— but the whole purpose of the order is that the instructions shall be general instructions and not specific to any case. It may be necessary, if a specific case arises, to draw the attention of the National Service officer to the general instruction."—[OFFICIAL REPORT, 22nd April, 1948; Vol. 449, c. 2003–4.] If that were so, subject to one qualification which I would like to add in a moment, there would be perhaps little objection, but if the right hon. Gentleman will look at his own order he will see that the National Service officer is instructed by it in deciding what to do to have regard to any directions which the Minister may give, either in respect of that particular case, or in respect of any description or class of case. That is to say that the order gives him power to do what in reply to supplementary questions a fortnight ago he said that he did not desire to do. That is not merely to issue general instructions but to issue specific directions in a particular case. If I may illustrate it, it comes to this: A particular man goes before an appeal board, and, shall we assume, is successful in his appeal, and the appeal board recommend that the direction be cancelled. Under this order the right hon. Gentleman can, if he so wishes, issue a direction to the National Service officer concerned to disregard the appeal board's finding and confirm the direction.

That power to issue directions in particular cases goes not only further than the right hon. Gentleman said he wanted to go, but much further than either necessity or elementary justice demands. I am not concerned to challenge the rights of the Minister to guide the discretion of the National Service officers as to the general principles they should apply. It may well be that he would direct them—as I hope he would—in general to carry out the recommendations of the appeal boards; but it is intolerable that he should direct a particular officer to do anything in a particular case—that is to say, that he should invoke his administrative authority to overrule the decisions of the appeal boards which are set up under the order of 1943. If that were to be done in any considerable number of cases, people would regard the appeal boards as powerless and a waste of time.

There is one qualification I would like to make. While I do not dispute the desirability of the Minister's being allowed to issue general instructions, it is wrong that he should be allowed to issue such instructions by administrative action and not by statutory instrument. If the right hon. Gentleman proceeds simply by a general administrative instruction, that instruction is not laid upon the Table of this House, it is not liable to challenge here, and it may well have little or no publicity. The machinery of appeal boards is properly set up by statutory instrument and everybody knows the machinery, or can know it if they like to study it. It is surely wrong in principle that that machinery should in some circumstances be by-passed by private instructions given administratively, which are not tabled and are not liable to criticism or to debate in this House. That seems quite wrong, yet it appears from paragraph 6 of the appendix to the Select Committee's report—that is, the memorandum from the right hon. Gentleman's Department—that it is not the intention of the Minister to exercise his power of giving general directions under this order by statutory instrument, but to do so by administrative instruction. That would lead to the criticism that the right hon. Gentleman can be taking away with his secretive left-hand what he has given with his open-handed right.

These are the two points to which I should like the right hon. Gentleman to address himself. Is it right to give particular directions in particular cases, or even to take the power to do so? If the Minister is never going to use it, he ought not to take the power. He is only justified in seeking the power if he intends to use it. Secondly, I suggest to him the desirability of issuing those general directions—and such directions must be matters of importance—by statutory instrument. This would meet the feelings of the Select Committee which investigated particularly that aspect. In any event, he will not be exercising these important functions without the control and knowledge of this House.

No one is seeking to suggest that the right hon. Gentleman has any sinister intent. I have no such suspicion, but it is nevertheless up to him to justify the taking of these wide powers in this way. I hope that he will either accept this Motion and bring in a new order taking only the power to issue general directions, or will give a satisfactory explanation of these wide powers.

10.25 p.m.

Mr. Joynson-Hicks (Chichester)

I beg to second the Motion.

My hon. Friend the Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) has, with his usual lucidity and thoroughness, explained the situation to the House; and I think he has put very fairly and clearly the principles and the particular matters involved. There is, however, one specific question which I should like to ask the right hon. Gentleman at the outset; a question which arises somewhat indirectly out of this Motion. As my hon. Friend said, the memorandum submitted to the Select Committee appointed to consider statutory rules and orders, set out that the necessity for the amending order had arisen out of a judgment given in the Divisional Court in the case of Winter v. Simms Motor Units Limited. If we pursue that matter we find—as again set out in the memorandum—that the findings of the court in that case were to the effect that, under the terms of the Essential Work Order, the National Service officer was given discretion to decide.

What the House is being asked to do by this Prayer is to deny the passing of an amending order to the Control of Employment (Directed Persons) Order. That order, the Control of Employment (Directed Persons) Order, 1943, specifically excludes from its operation all those matters dealing with persons employed in businesses operating under the Essential Work Order. Therefore, so far as I can see, in this matter the right hon. Gentleman is taking powers to amend an order which was not considered, nor was it operative in regard to the particular case arising out of which he seeks to amend the law. I do not say that the two cases are not parallel. There is the Essential Work Order and the Control of Employment (Directed Persons) Order which run down parallel lines, and are very largely, mutatis mutandis, the same. But what the right hon. Gentleman appears to be seeking to do is to correct what he considers to be a falsity under the Essential Work Order line of orders by amending an order under the Control of Employment (Directed Persons) Order line of orders. I should be grateful if the Minister would let us have his comments upon that because I do not believe that the order we are discussing tonight would, in any event, had it been amended as he now seeks to amend it, have affected the case of Winter v. Simms Motor Units Limited.

Following upon that first point I want to make certain comments about the facts arising out of this amending order. The position is that we are getting into such a tangle with delegated legislation and delegated powers which are flowing from Ministries, that it is quite evident that even the Ministries themselves are not aware of the full extent and limitations of those powers; and that is an exceedingly bad thing for the private individual and the public citizen. In this case, it is evident that what happens is that the Government, acting through the right hon. Gentleman's representative in his Department, occupy to begin with the three capacities of a party to the dispute, an advocate, and the magistrate who decides the dispute. As against that, the unfortunate individual is given the right of appeal to the local appeal board; and that is the sole cushion which he has to protect him from the Ministerial decision.

The right hon. Gentleman will undoubtedly, and quite truthfully, say that the appeal board has no power of arriving at a decision. That is so. The appeal board has only power to make a recommendation. That power is, or has been up till now, a substantial protection for the individual, because the recommendation is a recommendation to the National Service officer. As the court has found that the National Service officer has to exercise his discretion as to the action which he takes arising out of the board's recommendation, what is happening is that the right hon. Gentleman denies the right of the individual to rely on the judgment and common sense of the National Service officer to exercise his discretion reasonably and properly in the decision he takes on the board's recommendation by instructing the National Service officer to fulfil whatever directions he may receive from the head of his Department.

To my mind that is completely defeating the whole object which Parliament must have had when it originally authorised the making of this order and when it gave the powers to the right hon. Gentleman's predecessor which he is now exercising. The National Service officer, as an ordinary individual, may be considered to have a proper respect for the recommendations of the appeal board and to exercise his discretion reasonably and properly in arriving at his decision. But when it is taken completely out of his hands and made a Ministerial matter, then the value of the appeal to the board is completely and utterly denied and abolished. It reduces the whole thing to a farce. It eliminates even the vestige, of protection the private individual had against the Government Department.

There is the further discrepancy to which my hon. Friend referred whether this amending order is intended to enable the right hon. Gentleman to give to the National Service officer a general direction or a direction in the specific case. The right hon. Gentleman mentioned, in the course of his replies to Questions, as reported in the records for 22nd April, that what he desired was to gain uniformity. I do not think the House would consider that uniformity in matters of this sort is either desirable or proper. We are not dealing with uniform questions at all. They are questions which may arise in a wide variety of ways and in very different circumstances. To put a uniform translation upon the recommendations of the appeal board is to make the whole situation ridiculous. Uniformity is not to be desired in this case, nor would it be the end which the right hon. Gentleman really has in mind. In replying to supplementary questions, the right hon. Gentleman made one startling remark, which I should be grateful if he would expand and explain. I had asked him about this question, and the right hon. Gentleman replied that all this amending order does is to make it necessary for all National Service officers to take cognisance of any general instructions which may be issued from time to time as to the interpretation of the regulations.

Surely it cannot be necessary to have an amending order for the right hon. Gentleman to ensure that his own officers obey his instructions. If the right hon. Gentleman cannot control his officers so that they obey the proper instructions they receive from him, surely there must be something radically wrong with the administration of his Department. I ventured to say that this should not be necessary, but that was a question to which the right hon. Gentleman did not reply. If he meant what he said in his reply to me, then the whole of this amending order is directed to the officers to see that they carry out the instructions he gives. It is an improper method to have an order which seeks to remove the liberty of the subject by directing his movements. It must be wrong, in any event, to pass an amending law of this sort in order to overcome one specific case in the courts. I think the right hon. and learned Attorney-General will probably agree that if one initiates legislation to block up one loop-hole, one is only going to force open another loop-hole, and then there will be no end to the spate of legislation to be initiated. If one is to legislate on principle, all right; but this is bad law and a denial of justice to the individual, and the final result which it can bring will be to make confusion which already exists, still worse confounded.

10.37 p.m.

The Attorney-General (Sir Hartley Shawcross)

I cannot help feeling that there remains a good deal of misunderstanding of the purpose and effect of this order, although I was glad to hear the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) say that he did not think there was any sinister idea behind it. One of the less signifi- cant of the daily newspapers this morning stated that this order was presented for the purpose of over-ruling an order of the courts, and that that was being done in a "hole and corner" way. That statement was wholly untrue; it was untrue in both its parts. That ignorance of what the order seeks to do seems to be fairly general, but I am glad to be persuaded by the hon. Member for Kingston-upon-Thames that it is not shared by him, nor by the hon. Member for Chichester (Mr. Joynson-Hicks).

I am bound to say that, even if this Government desired—which it certainly does not—to do anything in a "hole and corner" way, hon. Members opposite would make that quite impossible. The hon. Member for Kingston-upon-Thames has an eye which, although it does not always see the stars, penetrates into every hole and corner of this kind. If the hon. Gentleman will allow me to say so, both he and his hon. Friend, assisted by at least one hon. Member below the Gangway, exercise great assiduity, and ingenuity, and even perspicuity—or ambiguity as the case may be—in scrutinising these orders. Even for the sake of assonance. I will not add that sometimes there is promiscuity and sometimes also vacuity.

There is no question here of overruling a decision of the courts in or of disregarding it in any improper sense. It is a normal part of the legislative process that where the courts have held the law to be something different from what it had been previously understood to be, the law may be altered, following the decision, so as to bring it back to what it was previously thought to be and as it had previously been practised. That is in no sense overruling the court or judge who has given the decision although even if it were, it would be well within the powers of a sovereign legislature to do it or to delegate power to do it. But a case like the present involves deferring to the decision of the court, accepting it, as one must, as being a proper decision on the law, and bringing the law back to the state in which it was previously assumed and intended to be.

What we are seeking in this amending Order to do is in fact to restore the law to the position in which it was understood to be, and has been understood to be for a period, I think, of at least five years since the original orders were brought before the House under the skilful pilotage of the right hon. Member for Epsom (Mr. McCorquodale). Ever since that time it has been assumed that the National Service officer had the power, but subject to the direction of the Minister, to do what in fact he has done from time to time during the past five years, but what the decision of the Divisional Court has now said he is not entitled to do under any direction issued by the Minister.

Mr. McCorquodale (Epsom)

As the right hon. and learned Gentleman has referred to me, may I say that if he will study the files of the Ministry of Labour, he will find a long way back that the National Service officers and the Ministers in general endeavoured to see that the Appeal Court decision or advice should be followed in practically every case.

The Attorney-General

That was exactly the purpose of having this power to direct the National Service officers. As I was about to say, that is the way in practically every case that this power is exercised. A general direction is given to National Service officers, that, though they may have some discretion in the matter, their powers must be exercised towards implementing the decisions of the appeal tribunals. That was the whole purpose behind this practice as it has been followed in the last five years. That is the purpose behind this amending order, to enable the practice which has hitherto been pursued to be continued.

Before I come to the actual manner in which the discretion has been exercised and directions have been and will continue to be given, may I add this, which I think deals with the point raised by the hon. Member for Chichester. The court, in the case which has been referred to, did not for a moment suggest that it would be undesirable for the Minister to possess the powers which he had considered he possessed, and which the amending order will give him. On the contrary, what the court said was that he had an undoubted right to give himself those powers, but that he had to give himself those powers if at all by a particular means which he had not employed. Mr. Justice Lynskey said: He can confer these powers upon himself and his representatives, but he can only do it in one way, and that is by Order. Then I omit some irrelevant paragraphs in which he deals with another matter. He then goes on to say: But the view taken by the Court is that the Minister can only confer powers upon himself or his representatives under the Defence General Regulations, Regulation 58 (a) by Order. Unless he exercises his power by Order, he is not able to confer on himself or his representatives any of the powers which are open to him to confer by taking the proper course under the Defence General Regulations.

Mr. Joynson-Hicks

The right hon. and learned Gentleman, has not dealt with what is rather implied by the question before the quotation, that the court never suggested or recommended, or that it denied any recommendation, that the Minister should take these powers. It was only laying down what it was open to the Minister to do, and was not expressing any opinion on it.

The Attorney-General

I did not suggest that for a moment. I was merely putting the negative position. The court had not suggested it would not be proper for the Minister to exercise this power. All it said was that, while he was entitled to exercise such powers if he gave them to himself, he had to give them to himself in a particular way, and it went on to indicate the manner in which he could give those powers, without expressing any view, as indeed it would have been improper to do, one way or another whether it was desirable that the powers should in fact be conferred.

I want to make it quite clear that no question arises at all of altering or affecting in any way the practice which has hitherto been pursued, and which was no doubt initiated by the right hon. Gentleman the Member for Epsom. For five years or so this practice has been pursued in regard to these matters; the National Service officers, in deciding what action has to be taken on the decision or recommendations and, advice of the appeal board, have acted under the directions of the Minister of Labour. In practice these directions have in general indicated that National Service officers must give such directions as will best implement the decision which the Boards have given. The sole point of the amending order is to make it quite clear that the Minister may by law continue to do what he has in fact been doing without complaint for the last five years.

As hon. Members appreciate, under Article 4 of the principal order the position is that a directed person, or the employer of the directed person, may appeal to the local appeal board. In the principal order the decision of the local appeal board, whilst a decision of significance and importance, is quite clearly an advisory decision. It is a recommendation to the National Service officer and it is for the National Service officer to take action upon that recommendation. I do not think it was ever intended, and the right hon. Gentleman the Member for Epsom will speak with much more authority on this matter than I can, that the National Service officer should act as an appellate tribunal in the sense that he would be completely free to arrive at a wholly different decision from that which the appeal board had given.

The intention was, in general, that the National Service officer should operate to give administrative effect to the recommendations and advice of the appeal board. That position was, I think, fully discussed at the time with the Joint Consultative Council and was agreed as being the proper way of giving effect to the machinery which had been established. Obviously, if it had been otherwise, and these local appeal boards could have been superseded at the complete whim and discretion of each National Service officer in each locality, the whole system would, I imagine, in all probalibity have broken down. The system was tolerable, and tolerable only, because the Minister had undertaken in the discussions with industry that, in general, the National Service officer would implement the recommendation of the local appeal board and would not act as a further court of appeal. And it was tolerable on the assumption that the Minister, either in general directions or, exceptionally, in particular directions, would ensure that that was in fact done, the Minister himself being responsible to Parliament, as the National Service officer was not, for the manner in which he gave instructions to the National Service officers in this regard.

National Service officers have, I think, never been regarded as officers who were entitled to exercise a completely free and judicial discretion as a kind of appellate tribunal, wholly independent of instructions which they might be given by the Minister. Indeed, when you look at the definition of what is a National Service officer under Regulation 100 of the Defence Regulations, you find that he is, in fact, described as a person— authorised to give directions under Regulation 58A on behalf of the Minister and in accordance with his instructions. Now, by an oversight, unfortunately, the orders dealing with this particular aspect of his functions appear to give him a wider discretion than that and to relieve him of any obligation to act under the instructions of the Minister. In fact, although that now turns out to be the legal position, he has always in the past acted under those instructions, general instructions, exceptionally specific instructions, and the purpose of this amending order is simply to restore the legal position to what it had hitherto been conceived to be. I hope, in those circumstances, that hon. Members opposite will feel that there really is nothing sinister in this, nothing undesirable in it, but, on the contrary, that it implements the very practice which they themselves would desire to see followed by National Service officers and the Ministry in these regards, and that they will therefore feel fit to withdraw the Prayer.

10.52 p.m.

Mr. Basil Nield (City of Chester)

The case for the annulment of this order was put before the House with great clarity by my hon. Friends on this side and I am anxious to add my argument and to do so in the light of the remarks which the right hon. and learned Gentleman has just made to the House. May I at once deal with the two points which seemed to me to require further explanation? The first is this. The right hon. and learned Gentleman's theme was that whereas the law may be altered, the practice is to remain the same. What I hope to point out is that while that may be the intention, the law is so altered as to empower the Minister to act quite differently from what he has done in the past, and to take other powers which I think the right hon. and learned Gentleman would regard as undesirable.

The second point of the right hon. and learned Gentleman's speech is that he wholly failed to deal with one point made by my hon. Friend the Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) in this regard, that while he says it is proper that the Minister should give advice and general directions to National Service officers, he has not dealt with the point that under the amending order he is entitled to give those directions in a particular case, as opposed to general directions. I want to deal with the matter rather from this point of view. The position, as we know, is that in these days a man may be directed away from his home, away from the work he wants to follow, to quite a different place, and to work which he does not want to do. The real question, in my respectful submission, is whether he is to be entitled to an effective right of appeal, and I suggest that equity says that he is so entitled.

What is the position? In 1942, under the Essential Work Order, which is referred to in the authoritative judgment of Mr. Justice Lynskey in the Divisional Court, it was made quite plain that a man employed on essential work, could not leave it, or be dismissed by his employer, without the permission of the National Service officer, and thereafter, if he was aggrieved by the refusal to give that permission, then he could ask that the case be submitted to the local appeals board. The local appeals board then had the right to make recommendations and to forward them to the National Service officer. The National Service officer had only the duty to consider them, and thereafter to make up his own mind. Clearly, what was intended was that the appeals board, consisting of representatives of the employers and the workers and a chairman, should formulate fair and impartial recommendations.

That system of appeal was repeated in 1943 in regard to directed persons. I ask hon. Members to observe that there was some sort of safeguard for a directed employed person—there was a right of appeal. It was, perhaps, rather slender because an appeal board's recommendations might or might not be acted upon by the National Service officer.

Under the order against which we pray, it seems to me that protection and safety for the directed person is made still more slender for the reason that under the order we are praying against the Minister now has the right to direct in a particular case that the National Service officer may disregard the recommendations of the appeal board, and may be required, in fact, to act on the Minister's direction. What is the effect on a directed man who is aggrieved? The appeal board recommends that he be not directed—that the direction be withdrawn. The National Service officer, on considering the recommendation, might agree, but under this order the Minister has power to say: "No; you may not reinstate him."

That, in my view, is a most dangerous innovation, and is not really setting things to rights. Most of us condemn that direction of labour as infringing human rights. The Government seek to justify it on the grounds of necessity, but they must agree that real safeguards and protection should be maintained. In my submission, it is being removed by this order. Indeed, the right of appeal becomes nugatory if the Minister is entitled to make these directions to the National Service officers. I ask hon. Members to look at the matter calmly and dispassionately and consider not what the practice of the Ministry is going to be, but what effect this alteration in law may have. The new order could be so used as to be an affront to the principles of natural justice.

10.58 p.m.

Sir Ian Fraser (Lonsdale)

The Attorney-General has made the point that the power of the Minister to give general instruction is, in fact, a safeguard for the aggrieved worker. He has said that since the Minister has given undertakings in Parliament—and he alone is responsible to Parliament—that he will give a general instruction that in general the findings of the appeal board shall be implemented, the power of the Minister to give a general instruction is a positive safeguard for the worker. I think my hon. Friends are not contesting that right or the way in which it has been, or presumably would be, exercised. But no explanation has so far been given why the particular power is required, and the fact that a general power is a safeguard suggests that a particular power may be the opposite. I therefore press the right hon. and learned Gentleman or the Minister to give some explanation why this particular power, which in the presence of a general instruction can only be used in an adverse fashion, is required.

11.0 p.m.

Major Sir David Maxwell Fyfe (Liverpool, West Derby)

I should like shortly, but with what strength I can command, to reinforce what has just been said by my hon. Friend the Member for Lonsdale (Sir I. Fraser) because, if I might for one moment follow the right hon. and learned Gentleman the Attorney-General into the realm of alliteration and assonance, I should say that he took up the challenge with avidity and certainly without acidity, but without the lucidity of which he is such a master and which he did not choose to employ on this occasion. The real sting in the attack here was the fact that these words, though in support of that particular case, are included in the amending order and it was by reason of certain doubts which the Minister himself cast upon the meaning of these words that this matter has required further inquiry.

Might I for one moment remind the House of the origin of this matter—it is odd for two reasons. As my hon. Friend the Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) mentioned, it is two years since this case went through the courts; and the second oddity is that in that case the National Service officer had not departed from the conclusion of the appeal court. He had in fact acted in the same way, but the vice—I use the word "vice" in its legal sense—that the court found in his action was that he did not use his own discretion at all, but acted entirely on the instructions of the Department; and therefore the proposition which this order by its amendment is putting up is that the National Service officer should not think for himself, however much any local conditions may induce him to take that course. The reason that is given in the memorandum from the Ministry, which is not very different from what the right hon. and learned Gentleman the Attorney-General stated in the House, is that, as the memorandum states: National Service officers should give effect to the Minister's policy and should be subject to guidance and instructions issued by him or on his behalf. With regard to policy, as my hon. Friend the Member for Kingston-upon-Thames said, no one is objecting, of course, to an officer of the right hon. Gentleman's Department carrying out the policy of the Department. It would be a very odd thing and a very odd Department if it did not; but it is the second point which I am sure right hon. and hon. Gentlemen opposite will consider, because it is quite an important point—that the officers should be subject not only to guidance but to instructions issued by the Minister, and that these instructions should he given, as we have pressed, in particular cases. In many cases that will not be a matter for the right hon. Gentleman or the Parliamentary Secretary; it will be a matter that will come from the National Service officer, who has to deal with the local facts, to some other responsible member of the Department who has not had to deal with the facts, and it does seem an extraordinary thing that there should be this right of altering a decision in particular cases.

It really is rather late in the day for the argument to be advanced that, although complete power is taken in the order to reverse the decision of the appeal board—and there is no doubt that power is taken—it is never intended to use that power, and that the only object of the order is to support the decision of the appeal board and to see that the National Service officer does not depart from it. If that be the position, it can be dealt with by increasing the powers of the appeal board. But we have no safeguard, as the right hon. Gentleman knows, that a future Minister of Labour will take the same point of view. When one is dealing with a problem like this, one has to allow for changes of influence and feeling in that occupants of the positions which the right hon. Gentleman and his friends occupy tonight. We must get out of the idea that it is good enough to accept legislation, which might be used, for a directly opposite purpose, on the ipse dixit of the Minister that so long as he is the occupant of the office he will use it only for the purpose he says. That is bad legislation, and it is laying ourselves open to all sorts of difficulties in the future.

We have not had an answer to the point pressed by my hon. Friend: why is the power taken in respect of the particular case? On the argument of the right hon. and learned Gentleman, it would surely be enough for the Minister of Labour to say, "My general direction is that you must follow the findings of the appeal board in all except the exceptional cases, and in these exceptional cases you will state your reasons, and so on, so that there is a body of knowledge in the Ministry on why the difference has taken place." With regard to the practice in the past, it is stated in the memorandum exactly in that sense. It is in the middle of paragraph 4. It is said there was a conference between the Ministry of Labour and the Joint Consultative Committee, representing both sides in industry, and that a specific undertaking was given that the recommendations of the appeal boards would be accepted save in exceptional cases. That is exactly the position which the courts said that the order laid down in law, and it is the position which would be covered by a general direction and would make entirely unnecessary the particular direction. We are entitled to know—especially after the statement of the Minister to the contrary a fortnight ago—why this provision about a particular direction is made.

Moreover, the right hon. and learned Gentleman did not answer my hon. Friend's point as to why, if all that is desired is to provide for general directions, these general directions should not be in the form of a statutory instrument. I am all for giving as much elasticity as can be given to the Minister in the working of things of this kind, but if his policy is—and I accept it from him or the right hon. and learned Gentleman—to support the appeal boards, there would not be the least difficulty in putting a general provision to that effect in the form of a statutory instrument, and by that method make it quite clear what the policy is. So that, while I have listened with the greatest assiduity to the right hon. and learned Gentleman's explanation, I find there are still these two points which are not explained, and I hope we shall have an explanation of these points, which may mean a good deal to us.

11.12 p.m.

The Attorney-General

With the leave of the House, may I try again? I shall not follow the hon. and learned Member for Chester (Mr. Nield) in his discussion of the question of natural justice. I always think that that is an unfortunate phrase to introduce into an argument of this kind, and that the best comment on it was given many years ago by Lord Shaw, when he said: In so far as the term 'natural justice' means that a result or process should be just, it is a harmless, though it may be a high-sounding expression. In so far as it attempts to reflect the old jus naturalia it is a confused and unwarranted transfer into the ethical sphere of a term employed for other distinctions; and in so far— and I particularly invite the attention of the hon. and learned Gentleman to this— in so far as it is resorted to for other purposes, it is vacuous. I venture to think that hon. Members opposite have not really appreciated what the existing position is under the law as it has been ascertained and decided in the decision of the Divisional Court. As the matter now stands, in view of the way in which the law was decided, the National Service officer is completely free to disregard, if he is so minded, the decision of the local appeal tribunal, and to give a direction which operates in exactly the contrary sense. If he does, if he takes that view, his action is not open to any kind of challenge by anybody, and if the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter), with his usual assiduity, put down a Question to the Minister of Labour about the matter, the Minister would be entitled—indeed, I apprehend he would be bound—to say the matter was one over which tie had no control, that he was not entitled to intervene in the matter because the National Service officer, under this decision of the Divisional Court, was exercising a free discretion as a quasi-judicial officer, and that it would be quite improper for the Minister to intervene or to attempt to control the way the officer exercised it. That is the position under the law as it has recently been ascertained and laid down.

But not so if this amending order is permitted to operate. Under the amending order, the Minister will be responsible to Parliament for the way in which the National Service officer acts on the decisions and recommendations and the advice of the local appeal tribunals; and if, either generally or in particular cases, the National Service officer is found to be disregarding the advice of the local appeal board, my hon. Friend the Member for Kingston-upon-Thames will be able to put down his Question in the knowledge that he will be bound to get an answer to it, because the Minister, having power to give directions to the National Service officer in these regards, will be required at least to answer for the action which has been taken by the National Service officer, whether generally or in a particular case.

Mr. Boyd-Carpenter

Would the Attorney-General convey that admirably phrased argument, which was precisely the argument which, with less force of phrase, I tried to convey, to the Minister of Transport?

The Attorney-General

I should have to consider the position of the Minister of Transport. It may well be quite different, as there are different considerations. I come now to the point in regard to the exercise of the power in particular cases. That was a question of administration with which, I must confess to the House, I was not so familiar as I sought to make myself with the legal position, but I have now received further and better instructions. I hope I shall be able to satisfy the House in regard to that. Power to give direction in specific cases is required where for some reason or other the National Service officer is minded not to implement the decision or recommendation of the Appeal Board.

Sir I. Fraser

Or the opposite.

The Attorney-General

I can best explain the position by reminding the House and, indeed, repeating the undertaking which was given, I am not sure whether by the right hon. Gentleman the Member for Epsom (Mr. McCorquodale) or my right hon. Friend the Foreign Secretary, when Minister of Labour, but which was given many years ago by one or other, or both, of the right hon. Gentlemen. What apparently was said then—I have not the report, but I am assured that this is the effect of it—was that the National Service officer shall, as a rule, accept the decision of the local appeal board. In those cases in which the National Service officer desires to reject the recommendation of the appeal board, he must refer the case to the Minister for instructions. In other words, the general direction is this: "Give effect to the decision of the local appeal board. If you do not want to give effect to the decision of the local appeal board, before you take any action at all, submit the matter to the Minister and take the Minister's advice."

The special direction is given by the Minister when a particular case is submitted to him in accordance with the general direction. The Minister then decides whether he is going to allow the National Service officer to exercise a completely free discretion in the matter or, more usually, whether he should give a direction or advice that, in spite of the personal view of the National Service officer, the decision or recommendation of the local appeal board is to be carried out.

It is in these circumstances that the Minister of Labour desires to have this power to give directions in particular cases. It is not in order completely to fetter or control the action of the National Service officer, in a way which will result in his having no discretion at all, or in a way which will compel him to close his eyes completely to the local circumstances, of which he might have knowledge. It is in order to ensure that he acts in a manner which at least will require him, on making up his mind what to do on the recommendation or advice of the local appeal board, to have regard to an expression of views by the Minister which is not likely to be entirely without influence on the action he eventually decides to take. In these circumstances, I hope the House will feel that this amending order, far from being likely to result in the decisions of the local appeal board not being implemented, is designed to have exactly the opposite effect—to carry out the practice so long observed in the administration of which the right hon. Gentleman the Member for Epsom was a distinguished member.

11.20 p.m.

Mr. Boyd-Carpenter

The right hon. and learned Gentleman the Attorney-General, in the concluding moment of his speech, came to grips with the issue which was disquieting several hon. Members. Lest there be any misunderstanding, I would just refer to a very important announcement in almost the concluding sentence made by the right hon. and learned Gentleman. May I repeat it? As I understand it, he said that the only exercise which would be made of the power to issue directions in a particular case was in a case in which the National Service officer had disregarded the advice of the local appeal board, and that, in every one of those cases, the matter would be referred to the Minister for decision.

The Minister of Labour (Mr. Isaacs) indicated assent.

Mr. Boyd-Carpenter

I see that the right hon. Gentleman nods, and I take it that I have correctly understood the statement which has been made.

The Attorney-General

Not that the National Service officer has disregarded the decision of the appeal board, but that he was minded so to do. Before taking any decision, he must go to the Minister.

Mr. Boyd-Carpenter

That means that he shall not take action contrary to the advice received from the appeal board, without first asking the advice of the Minister. May I say that, to have obtained that clear and authoritative statement that the 1943 principle was intended to be applied under the boards by this new order is, I think, of some public importance, and in the circumstances, I do not think it would be proper, whatever doubts my hon. Friends may still entertain about the wide nature of the powers assumed, to press the matter to a Division, and I beg to ask leave to withdraw the Motion.

Motion, by leave, withdrawn.