§ 10.1 p.m.
§ Mr. G. R. Mitchison (Kettering)
I beg to move,That an humble Address be presented to Her Majesty, praying that the Teachers Superannuation (Approved External Service) Amending Rules, 1956 (S.I., 1956, No. 262), dated 21st February, 1956, a copy of which was laid before this House on 5th March, be annulled.These Rules relate to the type of service that qualifies in certain circumstances for superannuation of teachers. They might quite well be about some entirely different subject, because the real point in this Prayer is not the merits of these Rules but the suggestion I shall make that in at least one, and, I think, in two respects, they have gone beyond the limits of Parliamentary control imposed by previous legislation.
The Rules purport to be made under Sections 2 and 15 of the Superannuation (Miscellaneous Provisions) Act, 1948, which, in fact, deals with a number of matters besides teachers' pensions. I shall have to refer to those in a moment. The form they take is to amend some Rules made in 1951, and which are called the Teachers Superannuation (Approved External Service) Rules of that year.
The first point is this: Sections 2 and 15 of the 1948 Act, which give what is supposed to be the authority for making these Rules, are, as regards Section 15, an ancillary section, and, as regards Section 2, a section of considerable importance, dealing with a number of specified classes of persons. These are the people who transfer between specified classes of employment or between one specified class of employment and some other form of employment. The rule-making power is in subsection (1):… rules may be made with respect to the pensions payable to and in respect of those persons …It goes on "by the appropriate Minister." In the next subsection one finds one of the categories, the only one with which we are concerned tonight, to be:… employment in contributory service within the meaning of the Teachers (Superannuation) Acts, 1918 to 1946 …There is then a Scottish alternative which does not concern us.
155 Accordingly, the power is to make rules with respect to the pensions payable to and in respect of certain persons, but there is no power at that point to enlarge in any way the specified categories of persons, or, more accurately, the specified forms of employment in which at some time or another they must be engaged.
Indeed, when one goes on through the same Act one finds, in Section 11, that there is an express power to extend the definition of "approved external service." That is what these Rules purport to do, but, of course, it is not done actually under that Section 11, which is not mentioned in the Rules, and, moreover, if it were so done, it would, under another section that I need not refer to in detail for a minute, have to be laid before Parliament and be subject to annulment.
Therefore, the first point that I make is that Section 2 gives no power to enlarge the categories of people who will be entitled to be considered for qualification for pensions, and, accordingly, that in that respect the Rules go beyond what the Act contemplated and allowed.
I ought to say at once that that point and the next point to which I shall refer were the subject of the vigilant and careful consideration of the Select Committee on Statutory Instruments. Its Report to the House was ordered to be printed on 27th March last. Appended to it was a letter directed to the Ministry and the Ministry's reply. While the letter clearly calls attention to the point that I have just mentioned, and also to the point I am about to mention, it is only the one I am about to mention which the Select Committee thought fit to report formally to the House. Therefore, considerable as is my confidence in the point I have already made, and sufficient as I would consider that by itself to be as a reason for the annulment or withdrawal of the Rules, I feel an increased confidence as regards the second point.
On this second point, I have just explained that the categories of employment which may be included are specified, and the one that is relevant here is what is termed:… contributory service within the meaning of the Teachers (Superannuation) Acts …156 Accordingly, what the Rules purport to do is to amend some rules already made in 1951 under one of those Acts. When one looks at the 1951 Rules—which, by the way, were made under all three Sections and not merely two of the Superannuation (Miscellaneous Provisions) Act, 1948—one finds that there again the categories are strictly limited. They are defined and there is no room for extension, but there is in the Teachers (Superannuation) Act, 1925, again a statutory power to extend, but to extend only within certain specified limits, and as a condition of extension the extending Statutory Instrument has to be laid before Parliament.
What has been done by these Rules is, first, to add one specific employment, which under the statutory provisions and, subject to the first point I made, could, no doubt, be done, and then to add a very remarkable provision that there can be addedemployment in any other capacity approved by the Minister of Education for the purposes of this paragraph.Accordingly, the effect of the Rules, if they were to stand, would simply be that the Minister would have by-passed both the laying provision in the 1948 Act and the laying provision, but within limits, in the 1925 Act, and would have conferred on himself, contrary to the intentions of the House, a power to make approvals without laying them before Parliament and without any opportunity of annulment.
Considering how carefully these Acts were drawn in that respect and the obvious need for something of the sort in a great many cases, I suggest that that provision which confirms paragraph 2 (ib) and what is proposed to be added to the 1951 Rules cannot possibly stand. I repeat that I am not a bit concerned with the merits of the matter. We may be told that this is administratively convenient. That may well be so, but if it is desired to have administrative convenience it cannot be provided at the expense of going beyond the provisions of the relevant Acts of Parliament. There can be no doubt whatever, if the administrative convenience is of sufficient importance—and I take leave to be rather doubtful about that in this case—the right course is to introduce amending legislation.
157 In the reply which was made to the Select Committee on Statutory Instruments there were some rather curious defences, which, broadly speaking, proceeded on the principle, "We have got away with it before and we may as well try to get away with it again." As regards the first point, a number of instances were given where this power has been exercised in the same way and relevant Orders were then mentioned. I simply say to that that I am not in the least concerned with any misdemeanours that this or any other Ministry has committed in the past. I am concerned that this particular misdemeanour—I hope that the Parliamentary Secretary will not take the phrase to hardly—having been committed, should be corrected.
I am sure that the Parliamentary Secretary will at once recognise that if one begins slipping over the line in this respect, even over small matters, one ends by having no line over which to slip and one then loses the parliamentary control which distinguishes this country from a number of others. I feel sure that we shall agree about that.
Similarly, as regards the second point, which I notice is admitted to be in some sense sub-delegation—I do not know how many senses sub-delegation has—it is just sub-delegation and ought not to be there. The defence at the end of that was that it was, therefore, thought not unreasonable to follow the precedent set by Article something-or-other of the Scottish superannuation scheme. Really, that is going a bit too far. The judges of what is reasonable and unreasonable in a matter of this sort are hon. Members of this House. The judges of what is within the Orders and what is not are, of course, in the last resort the courts, and we can only express our opinion here. But here we justify ourselves by saying that this particular thing has never been done before but they got away with it over the Border.
In the old days they got away with a lot of curious things over the Border. I should hesitate to remind the hon. Gentleman that there were gallows in Carlisle for purposes connected with little affairs of that sort. Again, I should hesitate—in fact, I should refuse—to say that the blame in the matter was all on one side. But to attempt to justify a minor misdeamour of rule-making in an English 158 Ministry by reference to a precedent set by a Scottish Order made under a different Statute shows that we are indeed driven to the last ditch.
I hope, therefore, that the hon. Gentleman will be able to assure me that subparagraph (ib) at any rate, is going. I say to him in all frankness and sincerity that I believe the first point is a perfectly good point. It was taken by the Select Committee. It was answered by his Ministry and I find the answer completely unconvincing. I consider that the first point is enough to remove the whole of the Rules in this form. I hope that the hon. Gentleman will at least consider that, even if he does not take action on it immediately. I appreciate it is a more difficult point than the other one, but it is clearly there. It may have other implications because a number of other Orders have been made under this particular piece of legislation. Let us hope that, for once, undeterred by the sucking dove atmosphere we had on the last Bill, the Government will recognise that they have gone a bit too far and that they will do the right thing about this.
§ 10.18 p.m.
§ Dr. Horace King (Southampton, Itchen)
I beg to second the Motion which has been moved so clearly and eloquently by my hon. and learned Friend the Member for Kettering (Mr. Mitchison).
The job of the Select Committee on Statutory Instruments, of which I have the honour of being a member, is to watch the Executive to see that when it is framing Statutory Instruments it does not exceed the powers given to it by Parliament. It was the unanimous opinion of the Select Committee that in this Statutory Instrument the Executive had exceeded those powers. I think that the late Sir Herbert Williams, who took an active part in setting up that Select Committee, would have been delighted to take part in tonight's debate.
My hon. and learned Friend the Member for Kettering has spoken tonight as a lawyer. He has shown quite clearly what is wrong with the Instrument which we hope will be annulled as a result of this Motion. As a layman, I follow him haltingly and stumblingly to state the layman's view of the same matter. I would only say about my hon. and 159 learned Friend's first point—the one which he called his more complicated point—that we made representations upon this to the Ministry, and that the reply of the Ministry satisfied members of the Select Committee that the Government had not exceeded their powers in interpreting the kind of service to which they could extend the provisions of teachers' superannuation.
I want to deal with the simple, direct issue, which was the second point of my hon. and learned Friend. Each of the parent Acts—the Teachers (Superannuation) Act, 1925, and the Superannuation (Miscellaneous Provisions) Act, 1948—gives the Minister power to make rules to define what is meant by "approved external service" for pension purposes. The relevant Sections are Section 13 (1, d) of the 1925 Act, and Sections 2 and 11 of the 1948 Act. But both Acts definitely state that such rules must be laid before Parliament. Section 17 (2) of the 1925 Act says:All rules made under this section shall be laid as soon as may be before both Houses of Parliament.Section 15 (2) of the 1948 Act says:Any power … to make rules shall be exercisable by statutory instrument, … subject to annulment by resolution of either House of Parliament.One of the new rules which the Minister seeks to make under this Statutory Instrument, and in pursuit of the powers given him by those two Acts, reads:The Teachers Superannuation (Approved External Service) Rules, 1951(h), are hereby amended by deleting the word 'or' at the end of sub-paragraph (i) of paragraph (1) of Rule 3, and adding the following subparagraphs …The Minister asks to be entitled to countemployment in any other capacity approved by the Minister of Education for the purposes of this paragraph …In other words, the Minister is making a rule which, if accepted by the House, gives him power to make unlimited rules without submitting them to Parliament. This new rule which he asks us to approve could be a rule to end all other rules in relation to teachers' pensions.
The Select Committee asked for a report upon this matter. The Minister's reply was, in effect, that the sort of case which the Government had in mind was 160 difficult to frame within the terms of a rule; that they wanted power to deal with hard cases which did not fall under the rest of the rules, which they had quite properly detailed and submitted to Parliament. I am quite willing to grant that this is a good reason for exceeding one's powers—but there usually is a good reason for doing so. That is the danger of allowing anybody to get away with a plausible reason for doing some harm.
Whenever power is handed over to the Executive in a political democracy it always starts in a little way, for a very charming reason. I admit that this may be preferable to the way in which power is seized by the Executive within a dictatorship, but it is none the less perilous, and if Parliament ever loses control it will be because it allows what some fierce critics of Parliament, in books like "The Passing of Parliament." have said has already begun to take place, namely, the erosion away of its control of the Executive.
I hope that we shall not hear the excuse, tonight, that this is only a tiny baby, or that to do a little right we must do a little wrong. It would be a bad thing for Britain if dictatorship crept in merely because dictatorship was administratively convenient. I am glad that the watchful eye of the Select Committee on Statutory Instruments is justified by tonight's debate.
I believe that this is an important Parliamentary occasion. It is certainly not in any way a party occasion. It is worth reminding ourselves even at this time of night that above ourselves, above those who frame Statutory Instruments and above the Minister and the Government is the law. I hope, therefore, that the House will accept this Motion and that we shall annul an Instrument which no matter in how tiny a way gives to the Executive the power to legislate without consulting Parliament.
§ 10.25 p.m.
§ Mr. Michael Stewart (Fulham)
I should like for a few moments to underline the objection raised to sub-paragraph (ib) of the Rules. The point we are discussing is not really an educational point, but a constitutional one. It so happens that it is in an educational context, but that is all.
161 As far as a layman, can follow it, the point is a very simple and a very important one. The relevant Act gives the Minister power to specify certain employments. As a result of his specifying them certain consequences follow which are important to the private persons who may benefit from that Act and important to the public because the expenditure of public money will be involved. Consequently, the Act requires that when the Minister so specifies employments he should inform Parliament in a document of this kind. The Minister now comes forward with a document in which he indeed specifies one employment, but then adds another phrase saying "and any other employment I may specify."
Let me give a simple analogy which brings out the danger involved here. We have all read in our youth those romances and fairy stories in which the principal character is informed by the wizard that he may have three wishes. It would surely have been regarded as a piece of sharp practice if, after having had two wishes, he said, as his third wish, "Now I want a dozen more wishes. That is the content of my third wish." That is exactly what the Minister is doing in an Instrument of this kind.
The Act says that the Minister can specify employment. The Minister says, "Very well, I will specify all the employments that I may in future think of." In that way, he avoids the necessity to inform Parliament of any future employments which he may choose to specify. That cannot possibly be the intention of the Act, and I am sure everyone will agree that the principle involved is an extremely dangerous one. If admitted, it could be applied to the power to make rules under other Acts where much larger sums of public money might be involved. It might be applied in circumstances where, instead of conferring rights on private individuals, it imposed obligations upon them or took away rights from them. Therefore, we ought not to accept a principle of this kind.
As has been said, the reasons which have been given why we should accept it have been remarkably flimsy. Supposing that sub-paragraph (ib) is withdrawn from these Rules, or supposing that the Instrument is withdrawn and that it is presented in a fresh form and is approved by the House. What would that mean? It would merely mean that 162 on each occasion in future when the Minister wanted to specify another kind of employment, even an employment affecting only one or two persons, he would on each occasion have to bring forward a document of this kind.
Is that really so very great a hardship? The document would not be difficult to prepare. The very fact that it would only deal with a single case would make the document a very easy one to prepare. After all, the bulk of it would be exactly the same in every case. There would be the announcement of the Sections of the Act under which it was made. They would include Section 11. Section 1 would be much the same except for the date. The body of Section 2 would be different because it would contain the particular employment which the Minister specified.
Then one would go on as usual. Finally the seal of the Minister of Education would have to be affixed to the document, which is no very great trouble to anybody, and two Government Whips would have to be found to sign it. I have been a Government Whip, and I assure the hon. Gentleman that it is always gratifying for the junior Lords of the Treasury occasionally, amongst their other duties, to be presented with these documents to sign; it makes them feel, despite their enforced silence in this House, that they do in their humble way make the wheels of the machinery of Government turn round. Therefore, there really would not be the slightest difficulty, even if the Minister thought up a new employment once a month, in presenting another of these slender documents. Weigh the weight of twelve such documents in a year against the seriousness of the constitutional principle involved by allowing sub-paragraph (ib) to remain in this document, and I am sure there cannot be any question as to the judgment that we ought to pass.
§ 10.31 p.m.
§ The Parliamentary Secretary to the Ministry of Education (Mr. Dennis Vosper)
Although the principal point raised in this debate is a fairly simple one, as the hon. Member for Fulham (Mr. M. Stewart) said, I think that the hon. and learned Member for Kettering (Mr. Mitchison)—who moved this Prayer with, if I may say so, great moderation—would be the first to agree that the background 163 to these Rules is somewhat complicated, even if one has a legal training, which I have not. I think it also fair to say from the debate we have had that there is really no dispute about the intention of this Statutory Instrument, but that those who have spoken are much more concerned with the method of implementation.
I would say just one word, and one only, about the intention. It is. I think, something that wins general approval, because it is designed to facilitate transfer between employments without complete loss of pension rights, and this is of no less importance in the teaching profession than in any other employment. In fact, there are three ways by which other employments in which a teacher has been or may become engaged can be taken into account for the purposes of the Teachers Superannuation Acts.
The most favourable arrangement is complete transfer of rights from one superannuation system to another. The second is that, where transfer arrangements exist but where the conditions of transfer are not satisfied—for example, when there is too long a break between teaching and further, employment—approved external service—the subject of these Rules—may be given. The third, which does not really concern us tonight, is even less favourable, and that is qualifying service where other employment is of still more limited value.
I mention that third category only because it is at present the case that Paragraph 2 (1a) of this Statutory Instrument seeks to elevate the National Health Service from the third to the second category, which, hereafter, will count as an approved external service. As I think the hon. and learned Member for Kettering made clear, the approved external service is derived from Section 13 of the Teachers Superannuation Act,1925, and by rules made under the Superannuaton (Miscellaneous Provisions) Act, 1948, where the categories have been extended. Section 2 of the 1948 Act gives the Minister power to make rules—and I think the hon. and learned Gentleman quoted these words—with respect to the pensions payable to and in respect of the persons who have been employed in one employment and become employed in another, and the rules indicate the employments which will rank as "other employments". That Section, read in 164 conjunction with Section 15 of the same Act, has been taken to give sufficient power for the laying of these rules.
The hon. and learned Gentleman suggested, I think, that Section 11 would suffice for the purpose of the first point which he raised. My advice is that Section 11 is restricted, and probably would not give sufficient power in itself to seek to fulfil this Statutory Instrument. That was the first point he raised—whether, in fact, Section 2 and Section 15 were themselves sufficient to justify the Rules as a whole. All I would say at this stage on that point is that this interpretation has not previously been questioned and is in wide usage. I have noted the views expressed in the first inquiry from the Select Committee on this point and also the hon. and learned Gentleman's arguments tonight. But, of course, as I think he understands, it has much wider implications. There is no doubt that the 1951 regulations which these Rules amend would suffer from the same weakness, and, indeed, the 1949 regulations which the 1951 regulations replaced. Therefore, I would not wish to comment further on that point tonight except to say that I will have it examined, but that will be rather a long process.
It is perhaps significant that in its final conclusions the Select Committee did not comment further or come to any conclusion on that first point, and the hon. Member for Itchen (Dr. King) has said tonight that the Minister's reply has satisfied the Committee on that point. Nevertheless, I will have it examined.
The second and, I think, more important point raised in this debate concerns paragraph 2 (ib) which gives the Minister power to approve other employments without naming them. This has been described as sub-delegation. As the hon. Member for Fulham said, if it were not for this sub-paragraph it would be necessary to make a new rule on each and every occasion on which a new employment arises, perhaps only as a result of one individual case.
Criticism has been expressed in this House and outside not only of the quality of the Statutory Instruments, but of the number laid before this House. One of the reasons why these Rules were laid in this form was that it was thought desirable to limit the number as far as possible. I fully realise that to take a comprehensive power like this is, in general, undesirable. 165 I fully accept that. I would say in its defence—and I do not think that this is disputed—that power is taken only with the object of helping the individual concerned to bring about something which is the subject of general agreement.
There are, in fact, quite a number of cases which would be covered by this particular paragraph, each of which I fully agree, if the hon. and learned Member is not correct in his first point, could be covered by the inclusion of a separate paragraph or a separate Statutory Instrument as and when the occasion arises. Furthermore, there have been precedents, but I am not going to refer to them tonight, particularly as the hon. and learned Gentleman tells me that one of the precedents was signed by me in my capacity as a Lord Commissioner of the Treasury. Nevertheless, although I maintain that these Rules can only be used to the benefit of individuals and not to deprive them of anything, my right hon. Friend has noted the views of the Select Committee when it says that these Rules make unexpected use of the power conferred by Statute and that paragraph 2 (ib) is prima facie an unauthorised sub-delegation.
This Report was published only a few days ago and, in fact, since this Prayer was tabled. That Report, together with the arguments that have been advanced tonight, convince me that the correct course to adopt is to replace these Rules with something more acceptable. Hon. Members have suggested that this Prayer should be carried. I would advise the House not to adopt that course. The Rules are in force at the moment, and, in any case paragraph 2 (ia) is important and should remain at least while a fuller investigation is carried out.
If, therefore, the hon. and learned Gentleman will withdraw his Prayer, or at least not press it to a Division, my right hon. Friend will make, at the earliest possible moment, a new Statutory Instrument revoking paragraph (ib) and laying a further Statutory Instrument which will, of course, be debatable in the normal course of events.
§ Mr. Mitchison
In view of that handsome concession to the vigilance both of the Opposition and of the Select Committee on Statutory Instruments, I beg to ask leave to withdraw the Motion.
§ Motion, by leave, withdrawn.