Clause 6.—(OFFICERS.) (Hansard, 2 July 1954)

§ The Minister of Labour and National Service (Sir Walter Monckton)
I beg to move, in page 7, line 8, to leave out "he has," and to insert "there is."
I think it would be for the convenience of right hon. and hon. Members opposite if I explain what has led to the suggested proposal in the Amendment. An Amendment in similar terms was moved by my hon. Friend the Member for Isle of Thanet (Mr. Rees-Davies) in Committee and was withdrawn on the undertaking of my hon. Friend the Parliamentary Secretary that he would look at the words and examined the point further, I have had the advantage of considering it, and the purpose of the Amendment is to substitute certainty where there was probability. I hope it will not be thought that I am only wanting to substitute certainty because uncertainty is no longer of particular advantage to one in my profession.
Hon. Members will be aware of the case of Liversidge in, I think, 1942, when somewhat similar words fell to be construed in the House of Lords. The result was that a subjective test to fulfil the language of the order in question was taken to be the right one. The point was not whether reasonable cause existed, but whether the officer concerned honestly believed that reasonable cause existed, whether it did or not. We want to be sure that the reasonable cause does exist and that the matter is not left to the decision or the honesty of a particular officer. On reflection, one realises that to substitute the objective test, as was suggested by some of my hon. Friends, is far more satisfactory than depending merely upon the officer who has to make the decision.
My hon. Friend the Parliamentary Secretary said in Committee that he would consult my noble and learned 1721 Friend the Lord Chancellor and my right hon. and learned Friend the Attorney-General. We have done that. The Lord Chancellor is of opinion that the Amendment is desirable, for the reasons I have given, and the Attorney-General says, as I said earlier, that he does not think it makes much difference to the drafting and the same result would be obtained either way. Nowadays, however, I like to have certainty.

§ Mr. Willey
We are obliged to the right hon. and learned Gentleman for his explanation and for the steps he has taken following the undertaking given by the Parliamentary Secretary. I say in anticipation that I know the Amendment will warm the heart of the hon. and learned Member for Middlesbrough, West (Mr. Simon).
It is arguable whether there should be an objective or a subjective test. I concede at once that most lawyers favour the objective test. We probably have the Amendment because we have a distinguished and eminent lawyer as Minister of Labour. The argument for the subjective test in a case like this is that there is a lot to be said for regarding an inspectorate of the kind in question in a quasi-judicial capacity—in other words, to place the responsibility upon them and to rely upon their integrity. The case was admirably put in Committee by the hon. Member for the Isle of Thanet (Mr. Rees-Davies).
The Parliamentary Secretary indicated in Standing Committee that there had been discussions with the inspectorate. I assume that their view is that the Amendment does not make very much difference. As the Minister knows, the Trades Union Congress is interested in this matter and has been assured—I do not want to discourage the hon. and learned Member for Middlesbrough, West—that it has not legal significance.
The Amendment might be thought to reflect upon the general administration. The Minister will have seen the Factories Acts and the wages councils legislation, in which the earlier wording is incorporated in the relevant Acts of Parliament. I know that no Government likes to do this, but I should like the Minister to withdraw the Amendment and to put it down in another place, as having 1722 indicated the intention of the Government to have discussions. Failing that, I should like his assurance that he will have proper consultations with those affected by the administration of the Factories Acts and the wages councils legislation, so that those affected, if the right hon. and learned Gentleman can persuade them, will be assured that there is no lessening of the powers of vigilance of the inspectorate.
With that assurance we on this side would leave the fundamental argument and would rest on the practical issue of whether the Amendment does or does not make any material difference. In short, if the inspectorate themselves are satisfied that the decision rests with the courts and not with themselves and if their vigilance will not be blunted, we would not be prepared to make an issue of this.

§ Mr. J. E. S. Simon (Middlesbrough, West)
I thank my right hon. and learned Friend for introducing the Amendment. I entirely agree with the hon. Member for Sunderland, North (Mr. Willey) that it is not desirable that the vigilance of the factory inspectorate should be weakened in any way. I do not see that this sort of Amendment need do that. It is merely putting an objective test in the same way that a police constable has to satisfy an objective test in performing his duties. I think the country has become much more alive recently to the danger of a subjective test in this sort of matter for it deprives anybody who might feel a grievance from ventilating that grievance in the courts. The change of words will certainly not impede the factory inspectorate in the performance of their duties.
2.30 p.m.
There is only one other matter on which I would ask my right hon. and learned Friend to give an assurance. This subsection gives very wide powers to the factory inspectorate in the way of taking statements. I should like him to give an assurance that those powers will be exercised in the same way as a police constable exercises his powers, that is, in accordance with what are known as the Judge's Rules, which are for the protection of a citizen who might find himself later the subject of a prosecution as a result of the action taken.

§ Dr. Horace King (Southampton, Test)
Laymen in the House are troubled about the discussion that is going on between hon. and learned and right hon. and learned Members on subjective and objective tests of "reasonableness." I merely intervene to say that I am still puzzled as to whether there is an objective test of reasonableness, especially as recently in another Committee of this House we were told by an hon. and learned Gentleman that "reasonable" meant "unworkable" and "not reasonable" was "unintelligible" or vice versa and that as a lawyer he preferred the "unintelligible" to the "unworkable." I hope in considering this question that is not what is in the minds of hon. and learned Members and the right hon. and learned Gentleman.

§ Sir W. Monckton
With permission I should like to say a word or two in response to what has been said since I moved this Amendment. Let me assure the House that there is no question of any lack of confidence in the integrity of the inspectorate. I have the fullest possible confidence in them, and I would be very glad for myself to leave this important question to them. It is not because I have doubts about their answers being right, but it is really this. If I may say so in response to the hon. Member for Southampton, Test (Dr. King), who referred to the subjective and objective test, the real thing is, are we to have a test in which somebody thinks there is reasonable cause for action, or are we to say, "There must also be reasonable cause."?
How this arose appears from the case that I was quoting in which, whether there was reasonable cause or not, it was hard to say that the man did not honestly think there was. It has been demonstrated in many cases with which I need not worry the House that the doctrine as expressed in that instance applies only in very limited spheres, and there is no question here of attempting to get rid of the confidence that we have in the integrity and wisdom of those who are concerned.
May I also say a word about the Factories Act, where the language is as it was before the Amendment was proposed. There again the officials do exercise their judgment, and we, of course, expect to find that they will only take action in cases where reasonable cause 1724 exists. My hon. and learned Friend the Member for Middlesbrough, West (Mr. Simon) asked me for an assurance about the way in which the wide powers here would be administered. I do not want to give any sort of formal assurance, but I want him to know that it is the practice where similar powers exist under the Factories Act for the officers exercising those powers to abide by the Judges' Rules, and I have no intention of giving any directions from which the contrary would result. I do not think there is any other matter on which I need trouble the House.

§ Mr. Isaacs
The Minister has satisfied those who have questioned him from a lawyer's point of view. I was only disturbed from the layman's point of view. Perhaps I can make it clear in this way. There are slightly different words in this Bill to the words in the Factories Act, and what I want to know is should these words be used in a court of law as an argument that Parliament meant something different by changing the wording. If the right hon. and learned Gentleman can just say a word on that we would not have the slightest objection to the Amendment.

§ Sir W. Monckton
If I may intervene again, with permission, we are advised—I cannot advise myself in these matters—that, in fact, this Amendment will only result in what would have been the probable result had the words not been inserted. It is the view of those who advise me that no practical change will come about as a result of this wording.

§ Mr. Willey
If it is felt by those representing the trade unions that there should be further discussion, may we take it that the right hon. and learned Gentleman would be happy to meet them and discuss the question with them?

§ Sir W. Monckton
I am always happy to meet the representatives of trade unions on matters of this kind, and I do not doubt that longer time will permit me to satisfy them more readily than I can across the Table of this Chamber.

§ Mr. H. Hynd (Accrington)
I only rise with the object of clarifying the position from the point of view of a layman. The insertion of these words in the previous Amendment ran smoothly, but in this case the line will read when the words have been inserted: …whom there is reasonable cause to believe to be or… I do not want to appear to be pedantic nor to attempt to dispute the matter with the right hon. and learned Gentleman, but to me the wording does not seem to run very well. I could suggest a happier phrase, and perhaps the right hon. and learned Gentleman will have a look at it.

§ Sir W. Monckton
I will certainly have a look at it. It seems to me that there is point in what the hon. Gentleman says.