§ 3.33 p.m.
§ The Secretary of State for the Home Department and Lord Privy Seal (Mr. R. A. Butler)
I beg to move,That this House takes note of the Report of the Committee on Administrative Tribunals and Enquiries (Command Paper No. 218).The Government are purposely giving an opportunity for this Report to be debated before the end of this Session so that we can obtain the reactions and feelings of the House before the new Session. The object of the debate, therefore, is not so much for the Government to monopolise the intention of the House as for them to obtain the views of hon. Members. Nevertheless, I shall be able to indicate in considerable detail the nature of the acceptance by the Government of the recommendations of the Report.
I must apologise ahead to the House if I have to speak in some detail, because the recommendations are many, and it would be impossible to give the Government's reaction to them without going into some detail. I am comforted in feeling that one great lawyer, the right hon. and learned Member for Newport (Sir F. Soskice) will follow me and another great lawyer, the Attorney-General, will wind up. This is a lawyers' paradise, but the issues involved concern not only lawyers, but the ordinary citizen. We are concerned with a matter which is of fundamental importance to the ordinary person.
Twenty-five years ago, there was a book by the late Lord Hewart, called "The New Despotism." This was followed by the findings of an eminent Committee—the Donoughmore Committee—which inquired into the exercise of certain ministerial powers, and this went some way towards allaying concern about the protection of the rights of the citizen against the vast array of powers which accrue to the modern State. Hon. Members may remember that in his book Lord Hewart quoted Kipling and said thatAncient Right unnoticed as theBreath we drawLeave to live, by no man's leave,underneath the law.401 That is much the same sort of conception as underlies the findings of the Franks Committee.
These two Reports, therefore, mark comparable landmarks in the same wide field. The sort of subjects that we are considering have dominated political thought throughout this troubled twentieth century, and, therefore, in corning to the detail of the Report on Administrative Tribunals and Enquiries, let us first remember the fundamental principles for which the Committee was set up. It is easy to say that the trampling of human rights, the perversion of justice and the denial of redress against the immense powers of the State have no relevance to our own country—and that may well be true. Indeed, the findings of the Committee are, on the whole, comforting, but unless we are constantly on our guard these diseases may attack the body politic almost unnoticed, and if they are not resolutely checked at the outset they may eat right into its structure.
That is why the Government decided, two years ago, to set up the Committee to see whether all was well with the proliferation of tribunals. This was a source of concern to us at the time. We have had this manifestation not only here, but also in the United States of America. Therefore, I think that the setting up of this Committee was fully justified and its findings, interpreted by the policy of the Government, which I propose to outline in general terms, will, I hope, justify the decision to ask these right hon. Gentlemen and other gentlemen to do the work that they have done. I hope that the House will start with me by thanking the Committee and its able Chairman, Sir Oliver Franks, for tackling this difficult job with speed and thoroughness. I thank them on behalf of the Government and also, if I may, on behalf of the House.
The Committee included three hon. Members of this House—the hon. Member for Salisbury (Mr. J. Morrison), the hon. and learned Member for Paisley (Mr. D. Johnston) and the hon. and learned Member for Cardigan (Mr. Bowen)—and, subject to the usual rigour, I hope that they may be able to make their contributions to the debate.
In studying the findings of the Committee it is important to examine its terms of reference in detail. Judging by two prominent leading articles today, in 402 The Times and the Manchester Guardian, which range over the rather wider field of citizens' rights as a whole, there might be some misunderstanding of what did or did not fall within the terms of reference of the Committee. What fell within its terms of reference were the constitution and the working of tribunals and, secondly, the working of administrative procedures which include an inquiry or hearing. Therefore, some of what I might call the more exciting or controversial issues of recent times did not fall literally under the cover of this Committee's inquiry, and I will confine myself to the terms of reference put before this Committee.
This later part of its findings, that is about inquiries, principally involves procedures to do with the compulsory acquisition of land with town and country planning. The Committee pointed out that the essential feature in both cases is the adjudication of a dispute between the individual citizen and "authority." It infers that in either case Parliament has provided, or expects, special safeguards in order to promote administration which is not only efficient but also acceptable to the general body of citizens as fair.
That is where we in Parliament come in, to see that this is eventually fair. That is why the Government accept at once the three guiding principles of the Committee which should underlie both the work of the tribunals and also these special administrative inquiries. These principles are set out in the opening part of this Report. They are openness, fairness and impartiality. It is against these three tests that we wish the House to judge the findings or recommendations of this Committee and also the conclusion of the Government upon them.
We have been concerned to accept as many of the recommendations as possible, but before I indicate the nature of our acceptance by going in some detail into the various findings, I must mention those matters which must be in the minds of members of a Government when looking at a Committee of this sort and its inquiries and results. Those considerations must be slightly different from those in the minds of members of a Committee inquiring into matters of this sort. First, for example, the Government must be able to discharge their responsibilities effectively. Against that test we must 403 judge the findings of this Report. Secondly, there is the question of delay.
The Franks Committee itself volunteered the view that its recommendations are unlikely to contribute towards the speedier dispatch of business. But the delay in settling cases is one of the main subjects of public complaint. We do not want, as a result of our findings and conclusions, to enlarge on what Shakespeare wrote about "the law's delay" by the delays of tribunals, inquiries and other methods which influence the life of the ordinary man and woman.
The third thing which the Government must have in mind is the striking of a just balance between the claims of the citizen and the community as a whole, in an era in which the nation must be equipped with the resources of a fully competitive economy. And so, in turning our minds to the recommendations, we remember, first, that the Government have a duty to discharge their responsibility. Secondly, the citizen has a right not to be submitted to too much delay and, thirdly, we have to strike a just balance between the rights of the citizen, which we all want to defend, and the need for carrying on the business of the country efficiently. Nevertheless, taking account of these considerations, we expect to be able to accept wholly or substantially the great majority of the detailed recommendations in this Report.
Before going into detail, I wish to make one important point. It is that although the Committee made a number of criticisms of present arrangements and put forward no less than 95 detailed recommendations, it did not find proved any charges of widespread maladministration or injustice in these tribunals or proceedings. On the contrary, as its Report states, the Committee found much to commend and many of its recommendations endorse present practices. On the whole, the Committee found that justice was reasonably well done and it was mainly concerned in applying the principles of openness, fairness and impartiality and to make it plain that these procedures are capable of providing justice. But the Committee has suggested importing into the system we have already certain additional safeguards for the individual beyond those already present.
404 I think it important that we should look at the Report against that background and here, on behalf of the House and the Government, I should like to thank all the members of the tribunals or inquiries wherever they may be—National Assistance, National Insurance, health, or the many others that assist the medical services—for the work that they do. Very often it is unpaid. While my speech may not be remarkable for its great humanity—although I should like it to be, because we must remember that in dealing with these difficult matters one has to be severely practical—we must remember the human side that is behind all this; and that when persons come before these tribunals they are exceedingly human and understand very little of the intricacies of the procedure before which they are being forced to be present. So I should like to thank all those members who work so hard on these tribunals.
Now I come to the recommendations. The most important recommendation in the Report, and the biggest, is that the Government should set up two Councils on Tribunals to exercise general oversight of the work. We agree with the spirit of this recommendation, but we propose to set up a single Council on Tribunals which will be appointed jointly by the Lord Chancellor and by the Secretary of State for Scotland. We think it best to tackle the problem in this way, because many tribunals are organised on a basis common to Great Britain as a whole. The difference between Scottish and English law and matters concerning tribunals which are separately administeredin Scotland can, we think, best be provided for by setting up a special committee or panel of the Council to deal with matters of special concern to Scotland.
This single Council will exercise a general oversight over the working of tribunals and the Government propose to consult it before establishing any new tribunal. It will be our intention, when this Council is set up, to refer to it for advice on a number of the recommendations which the Committee has made. Therefore, if the House wishes to have some idea about what time-table we have for carrying out these proposals, I would say that hon. Members must put first the establishing of this Council of Tribunals.
405 Now I go on to other recommendations. It has long been a source of grievance that on some tribunals the citizen cannot be represented by a lawyer, or that he requires the consent of the tribunal before he may be so represented. The Franks Committee favour the right of legal representation before tribunals, except in the most exceptional circumstances. But in two of the most important tribunals, those relating to National Insurance and the industrial injuries local tribunals, it recommends that the consent of the tribunal should be obtained before legal representation is permitted. The House may be glad to know that the Government propose to remove restrictions on the right of legal representation before tribunals as recommended by the Committee. There is only one safeguarding phrase which I must bring in: that further consideration will need to be given to the position of the numerous local service committees under the National Health Service.
It is sometimes argued that the presence of lawyers may make proceedings more formal and impair some of the valuable features of the tribunals, notably their simplicity and expedition, and that was a feature of the tribunals to which the Franks Committee drew attention in comparing them with the courts. While attaching importance to these features, the Government think it important that the citizen should not be deprived of what he often regards as his elementary rights. Therefore, we accept in general that recommendation.
I now turn to another important contribution.
§ Mr. Butler
Yes it does.
I turn now to another important recommendation of the Committee and this raises the question of appointments to tribunals. One feature of the present system which has been criticised is that the appointments to tribunals are commonly made by the very Ministers responsible for administering the service upon which the tribunal is asked to adjudicate. That is a mix-up, in a manner which would have offended Montesquieu, of the executive and judicial functions. It recommended that the chairmen of 406 tribunals should be appointed by the Lord Chancellor, or alternatively, in Scotland, by the Lord President of the Court of Session or the Lord Advocate. It recommended that the members should be appointed by the new Council on Tribunals.
The Government sympathise with the object of these recommendations. We propose that, in general, chairmen should be appointed by the Lord Chancellor in England and Wales and by the Lord President of the Court of Session in Scotland. We do not, however, think it would be desirable for the new Council to appoint members of tribunals. Such an arrangement would not preserve proper accountability to Parliament. It is a matter of keeping checks and balances throughout. The Government therefore propose that appointments generally should be made by the Minister of the Department concerned, after consultation with the Council on Tribunals. On that matter we should value the proposals of hon. Members.
Now for a third recommendation, which the Government accept in general. We agree that for the most part it is desirable that chairmen of tribunals should have legal qualifications, but we see no reason why any serving chairman who is not so qualified should be dismissed if he is giving satisfactory service. Nor would I like to exclude the possibility that in future it might be desirable to employ, in tribunals of first instance, a certain number of chairmen who are not legally qualified. In this connection, I am asked by my right hon. Friend the Minister of Pensions and National Insurance to remind the House to consider specially the fact that a large number of chairmen of National Assistance tribunals have not legal qualifications but, nevertheless—if I may put the matter like this—perform their duties extremely well. We have to strike a proper balance between these various considerations.
I next come to a set of recommendations about legal aid. The Franks Committee recommended that legal aid should be available for certain tribunals and that applicants should receive an allowance toward their legal expenses before tribunals. Here are examples of recommendations that we are not able to accept. We cannot accept either of 407 them. We have not yet been able to extend the provisions of the Legal Aid and Advice Act, 1949, to all litigation before the ordinary courts and it does not seem to us that there is a sufficient case for extending the official scheme of legal aid to tribunals at present.
It is simply a commonsense situation. There is, in fact, a queue for legal aid. We do not see why this particular branch should be given precedence when we have not been able to make progress in other directions. The proposal to reimburse the citizen for a portion of his legal expenses in proceedings before tribunals would be expensive, and might encourage the employment of lawyers in circumstances where the expense would not be fully justified.
I now come to the important question of appeals. This is another big section of the Report. The Franks Committee recommended that, generally, there should be a straight appeal from a tribunal of first instance to an appellate tribunal and a further appeal on a point of law to the courts. We have to give a little further consideration to the application of this proposal in particular circumstances. The Franks Committee proposes important exceptions to this general principle, for example, that there should be no appeal on a point of law from a decision of the National Insurance Commissioner or of the Industrial Injuries Commissioner, or the National Assistance appeal tribunals. That, again, is a matter upon which we should value the opinion of hon. Members and we would like to look at the application to particular cases.
I could, of course, spend some time examining the effect of the Report on particular tribunals. All the various tribunals are set out in the Report dealing with a variety of work of Government Departments, but the constitution and Procedure of many of those tribunals will be modified as the result of our acceptance of the general recommendations. One has to take a slightly different attitude to the various tribunals—National Assistance, family allowance, National Insurance, health, military service, transport, or whatever it may be—in deciding upon the application to particular tribunals of the general principles set out by the Franks Committee. We shall not only 408 be guided by the views expressed in this debate, but we shall in some cases, as I said earlier, arrange for early consultation with the Council on Tribunals which we shall try to set up before too long.
A recommendation which I am sure will be of special interest to the House is that the adjudicating functions now exercised by county agricultural executive committees should be entrusted to new independent tribunals from which appeal should lie to the Land Tribunal or to the Scottish Land Court, as the case may be. I can only say this afternoon that we want, first, to hear what the House has to say about this proposal and that, in the second place, we think it right in principle that the recommendation should be accepted.
The only reservation I make is that we announced in July, 1956, that we were discussing the whole question of disciplinary powers, security of tenure and other matters under the Agriculture Act, with the main agricultural organisations. These discussions will take account of what the Franks Committee has said about the judicial function of the county agricultural executive committees and the Government will bring forward proposals as soon as possible. It would be profitless for me to talk about the procedure without discussing the powers from which it derives.
I must, therefore, subject to hon. Gentlemen expressing their opinions and the House expressing its opinion, ask the House to wait until the Government can bring forward proposals about these powers after the discussions with the agricultural organisations have been concluded and decisions on points of policy have been reached. I mention the matter because it is of particular importance, and interests many hon. Members.
Parts IV and V of the Committee's Report deal in the main with the procedure relating to compulsory acquisition of land and town planning, all matters upon which we should like to be as lucid and clear as possible. The main purpose of these recommendations is to give to the citizen a greater sense of a fair hearing and to bring the process by which the final decision is reached as far as possible into the open. The further purpose is to establish, as far as can be done in this administrative field, the rule of law.
409 I will emphasise that the Government are in full sympathy with these broad objectives, which flow from the principles of openness, fairness, and impartiality. We are prepared to accept a great number of the Committee's recommendations. Some can be implemented without any change in the law. Where that is possible that will be done, and the necessary arrangements will be made. Where amendments of the law are required, we shall have to put first the appointment and setting up of the single Council on Tribunals. We shall make the necessary preparations for the other matters to which I have referred and shall refer.
I must, however, return to a point I made in the opening of my remarks, that we must not complicate the procedures more than we can help. The great majority of objectors and appellants are small people. Quite a few present their own cases without professional assistance and for most people it is essential that the procedure should be simple, intelligible, quick, and cheap, as well as fair.
It is subject to that that I now come to some of the Committee's recommendations. The first of these is that an acquiring or planning authority should be required to make available in good time before the inquiry a written statement giving full particulars of its case. I am authorised by my colleagues to say that Ministers concerned will in future require authorities to see that their case is properly set out before an inquiry opens and that this will be made obligatory.
The Committee further recommends, in recommendations (68) and (69) thatThe deciding Minister should, whenever possible, make available before the enquiry a statement of the policy relevant to the particular case…In future, the responsible Ministers will ensure that more is done to make the policies for which they are responsible more widely understood and that appellants are told where they can find the information which may help them.
We accept that in principle, but here is another example where a little more examination and a little more help from the House are necessary, because we see considerable difficulty in undertaking, at any rate today, that a particular statement shall be made in every particular case, because in some cases that might prejudge 410 the case of the citizen who is appearing. Subject to that, I have stated our attitude.
Now I should like to state our attitude towards what the Committee has said about inspectors. I will take all the Committee's recommendations about inspectors. It is proposed first, by recommendation (70), thatThe main body of inspectors in England and Wales"—that is, the body of full-time inspectors employed by the Minister of Housing and Local Government—should be placed under the control of the Lord Chancellor…Later, the Committee recommends that the reports of all inspectors should be published.
I will take, first, the question of the control of inspectors. It seems to the Government essential that the Minister of Housing and Local Government should retain his personal responsibility for them. The Minister has to arrange between 5,000 to 6,000 inquiries a year. Inquiries have to be arranged promptly, and, therefore, inspectors have to keep in very close touch with the Department. It goes without saying that the inspectors have to be fully au fait with what is the Minister's position.
The Government further recognise the importance of emphasising the independence of the inspectorate, and to meet the spirit of the Committee's recommendations we propose that in future the Minister will appoint them only after consultation with the Lord Chancellor, and will be free to dismiss them, should such an eventuality arise, only with his consent.
As recommended by the Franks Committee, no change is proposed in the existing practice of the Scottish Department and the Ministry of Education in England of appointing persons from outside the public service to conduct their inquiries.
On the next question of the publication of inspectors' reports, this is a matter which aroused a great deal of interest, and on which we have heard from such organisations as the F.B.I., and we have heard repercussions from many sides. The House may be glad to hear that the Government are prepared to arrange for the publication of the inspectors' reports. No amendment of the law is required, and this change will be brought into effect as 411 soon as possible, although further consideration needs to be given to the method of publication. The Government are anxious to avoid unnecessary distribution of paper, and believe that many objectors and appellants will not want the reports, which are sometimes very long, provided they get a full account of the inspectors' findings together with the Minister's decision and the reasons for it.
I have been asked whether we should include the recommendations of the inspectors, and I think that the best thing I can do is to read paragraph 328 of the Franks Committee Report, which says:The inclusion of recommendations is important, since the inspector hears the evidence at first hand and has an opportunity of immediately relating what he hears to the physical facts of the case, by personal inspection of the land. We recognise, however, that there will be cases where the element of policy is so large that it would not be reasonable to insist on recommendations being given.We accept the line of that finding. The expression that the publication of the reports will be arranged by the Government and that normally the recommendations should be published represents the present attitude of the Government on this point, upon which we have had a good many questions. I am sure the House will realise that this decision represents a major step forward in meeting the interests of people whose land is affected by acquisition and planning control.
I come now to the Committee's recommendations about the procedure to be followed at inquiries. The first five recommendations under this head run from paragraph (71) to paragraph (75), and are designed to secure proper disclosure to the inquiry of the case to be met and that an orderly and generally known procedure should apply. In paragraph (72) it is recommended that…codes of procedure for enquiries should be formulated by the Council on Tribunals…and should be given the force of law. The Government accept these recommendations generally.
I should like to say a particular word about the bearing of these recommendations on agricultural interests. I think it fair to say that the general acceptance of these recommendations and of others in this part of the Report relating to 412 inquiries will benefit all citizens involved in these procedures, but since it is so often agricultural land which is the subject of compulsory acquisition—in my humble opinion, too much of it is being acquired—it follows that these recommendations will be of particular interest to farmers and owners of agricultural land.
The Committee recommends that officials of Departments should be prepared, if required, to give factual evidence at inquiries in support of any views that may have been expressed. It means, in practice, that if the Ministry of Agriculture expresses positive views on the agricultural quality of land on which somebody is proposing to build, officials of that Department will, if required, be prepared to expound their view at the inquiry. This relates to a particularly apt leading article in the Manchester Guardian which deals with something which I think it might be too controversial for me to mention this afternoon. The Government cannot go so far as the Committee in agreeing that the officials of the Department should be prepared, if required, to appear in cases where no view has been expressed. That, I think, would be going a little too far.
Recommendations (76) to (79) concern costs, and the Committee recommends that in general costs should be awarded to successful objectors or appellants. [An HON. MEMBER: "Hear, hear."] I am sorry to say to my hon. Friend that the Government do not feel able to accept this as it stands. We recognise that there is a need here, and I do not want to make any final statement this afternoon. I cannot make a final statement on anything, although I have given an indication of many of the findings. On this we should prefer to consult the Council on Tribunals and hear the views of hon. Members.
On recommendation (84), thatThe Minister's letter of decision should set out in full his findings and inferences of fact and the reasons for the decision"—we think that that is absolutely right. This is already the practice of some Departments and in future it will be adopted by all.
Part V of the Committee's Report deals with "Particular administrative procedures relating to land". Here I have to make some comments on the 413 recommendations relating to Service Departments. The House may remember that these Departments are at present under no statutory obligation to hear objections to proposed acquisitions. They do so by an arrangement, I am informed, made in 1947 and announced in a White Paper, Cmd. 7278. That is, they arrange for a private hearing of objections by local authorities or other bodies, or occasionally and exceptionally there is a public inquiry, and all this is treated as a planning matter.
The Committee recommends, in paragraph (87), thatSave in time of emergency or threat of emergency or in special security cases the Service Departments should be required to adopt the same procedure…as other Departments.This means, in effect, public notice and public inquiry. The Government have some definite views on this subject. The Government agree that a situation in which an owner or occupier has no statutory right to object to the acquisition of his land in peacetime should not be allowed to continue, but we do not feel able to go all the way with the Committee's proposal in this matter concerning the needs of the Service Departments.
In the case of the Service Departments, speed is often vital and it is really not practical in the world we live in for the Committee to envisage that we should wait for an emergency, or even for the formal threat of an emergency—that is, the declaring of an emergency—before acting. We live in times in which it may be absolutely necessary, precisely for the sort of reasons the Committee mentions, namely, security and the public need, for a Service Department to act. We must, therefore, reserve the position in that respect.
It is also not desirable in our opinion to distinguish special security cases from others. Many of the Service Departments acquisitions involve some element of security and it would at once direct attention to them if they had to be singled out for special security treatment. Therefore, subject to stating that the Government agree that a situation in which an owner or occupier has no statutory right to object to the acquisition of his land in peace time should not be allowed to continue, we must make 414 reservations about the needs of the Service Departments in this field.
The Government accordingly propose that where a Service Department wishes to acquire land the private interests directly affected should be given a statutory right to object and to be heard. The hearing will normally be in private far some of the reasons I have given, but will be conducted by a person specially appointed for the purpose by the Lord Chancellor or the Secretary of State for Scotland. I should, however, make it clear that it would not be possible in these cases to undertake publication of the inspectors' reports.
I think I have now detained the House long enough to give it some idea of the attitude of the Government towards the first and second parts of the Committee's terms of reference. I have attempted to indicate that the first step is to set up a single Council on Tribunals and to consult it on a great many matters. I have also indicated the attitude of the Government prior to the debate taking place and my right hon. and learned Friend the Attorney-General will be able later to take up and perhaps to answer some of the queries that are put by hon. Members.
I think it would be wrong for me to say any more at the opening of this debate, except to underline again the fact that we approve of the spirit in which this Committee has made its recommendations. Its recommendations are, in fact, in accord with the philosophy which animates the actions of the Government. The Committee has said this in paragraph 5:Since the war the British electorate has chosen Governments which accepted general responsibilities for the provision of extended social services and for the broad management of the economy. It has consequently become desirable to consider afresh the procedures by which the rights of individual citizens can be harmonised with wider public interests.I therefore hope that the House will accept the general lead of the Government and will aid the Government in giving us its advice so that when the time comes, perhaps in the new Session, we may take for preliminary action. I hope it will agree that we have been wise to hold a debate in this Session in order to be fully armed with the wisdom of this honourable House.
§ 4.15 p.m.
§ Sir Frank Soskice (Newport)
I am sure that the House will be grateful to the Home Secretary for his very careful and full account of the reactions of the Government to the proposals of the Franks Report. I must confess I felt very considerably at a disadvantage as I listened to his speech—full and detailed as it was—because it was rather like listening to him when he was announcing his Budget proposals, except that we like these proposals very much more. It was a little difficult to get them down on paper and, of course, the Government had had an opportunity of deciding on what they are going to do about the nearly 90 different proposals contained in this full and detailed Report.
As I listened to the proposals the Government have in mind, I must confess I felt very glad indeed that the Government have been able to go so far in meeting the spirit of the Report. On the other hand, it is right to point out that the Report was published only in July of this year and, speaking as I do from the Opposition Front Bench, I would not feel able to commit my right hon. and hon. Friends to acceptance of any particular detail of what the Government contemplates.
What I would say, however, without any qualification at all, is that we on this side of the House recognise the extreme importance of the content of the Report. We on this side think that the debate we are having this afternoon is particularly relevant to the present stage of our social and political development in this country. The Minister referred to the proliferation of tribunals. "Proliferation" has a rather ugly sound, but I think that on both sides of the House we would recognise that tribunals and procedures of inquiry—indeed, the various procedures which the Franks Committee investigated—are now, and must inevitably be, a permanent feature of our social and political system. In their various types they are a constitutional device which we by our experience, particularly in the last twenty or thirty years—whichever Government were in power—have come to agree is an indispensable device for the running and management of our affairs.
On either side of the House, no doubt, we would disagree as to the area in which 416 the Government may and ought to accept responsibility for direct intervention with a view to guiding and promoting the general welfare. Right hon. and hon. Members opposite would no doubt regard that area as in general more restricted than we on this side of the House would regard it. In 1945 we opened a new page in our history by accepting on behalf of the Government a far wider measure of responsibility than had theretofore been recognised as proper. I leave out of account the war years, because they were years in which exceptional circumstances appertained.
Now, in 1957, we have this wide range of tribunals enshrined in our public life and our advance guided as a result of various administrative measures, the Minister in question being enlightened by the results of inquiries. I do not think it would be over-stating the case to say that they are a permanent feature of our judicial system—sometimes partly judicial and partly administrative. It was high time and of great value to our community that the Franks Committee should be able to go into the matter as fully as it has done.
I should like to take the opportunity at the outset of associating myself and my right hon. and hon. Friends cordially and warmly with the expression of thanks we have heard offered this afternoon to the members of the Committee. We are really very fortunate in this country in being able to find busy and highly qualified men and women who give so unstintingly of their time, their experience and talents, in seeking to find answers to a whole wide range of difficult social, political and other problems. We may congratulate ourselves that on the Statute Book the legislation enacted by Governments of any complexion is very much richer as a result of the work of successive committees and Royal Commissions.
Perhaps it would not be inappropriate for me to say that it would be regrettable if the idea were allowed to get about that the members of commissions and committees should work for months preparing valuable reports only with the result that those reports are pigeonholed, no action being taken. I am very glad, and I am sure that in this respect I echo the feelings of all right hon. and 417 hon. Members of the House, wherever they sit, that the Government have thought proper to give us this very early opportunity of discussing this Report.
In answering the speech to which we have just listened, I have no easy task. I feel sure that my right hon. and hon. Friends on this side would desire individually to examine the proposals of the Government in the light of the recommendations which have been made. They are matters of detail, and in each case they require a delicate adjustment. The Government have felt that they cannot for the reasons given follow all the recommendations of the Report, and we should like most carefully to consider the respects in which the Government have dissented from the findings of the Franks Committee.
On all sides of the House, I am sure we will also be glad that the recommendations discard fully anything which could savour of putting Government Departments above the law in any way. Whatever powers are vested in Ministers or representatives of Ministers or public authorities, it would be at once agreed on all sides that these powers must derive and derive solely from the language which Parliament has chosen with which to invest the particular authorities with those powers. In this country we would regard it as completely alien to our conceptions and wholly inconsistent with our scheme of things that, when the clash comes, as it must come, between the will of the individual and the will of the community, represented by the appropriate Governmental institutions, those Governmental institutions should in any sense have some method of interpretation of the law more favourable to them than to the individual.
In this country we would entirely reject anything of the nature of droite administrative. We are all starting from the assumption that, in determining the rights of individuals as against the rights of authority, there must be the plain language of Parliament, whether it is enshrined in a Statute or contained in delegated legislation, and that, whatever is the tribunal that has to determine as between the individual and the State, it must be bound by that language of Parliament and apply itself to ascertaining exactly what Parliament has said, either 418 through the letter of the Statute or through the letter of delegated legislation, by ordinary canons of interpretation which would be used in any ordinary court in the land.
Starting from that general assumption, I feel that we, if we were the Government, would at once assent to the proposition that the right way is to test the various tribunals and inquiring bodies by reference to the three standards which the Franks Committee adopted—openness, fairness and impartiality. That is a method of approach which entirely commends itself to us on this side of the House, and I feel sure that I can speak without qualification for all my right hon. and hon. Friends in so saying. Therefore, on both sides of the House, we start from common ground.
Within the scope of this debate, the Minister has said that he would desire, in order to assist the Government, expressions of view from all sides of the House. In an endeavour to respond to that, I think I can only take some of the various tribunals and the various proposals which come within the Committee's Report. The difficulty is that so many different tribunals and so many different procedures are involved. At one end, in a sense, we have tribunals like the local insurance tribunals, the industrial injuiries tribunals, the National Assistance appeal tribunals and that sort of tribunal, and one can, in a sense, look at them as tribunals which particularly touch the individual.
I can well remember, when we were putting on the Statute Book the legislation which set up these tribunals, the feeling there was about the necessity for an informal atmosphere. I think hon. Members would agree that when a person appears before a National Insurance tribunal, an industrial injuries tribunal or other similar tribunal, he is speaking particularly of something that personally concerns him and which perhaps he is more qualified to speak about—and here I speak with reluctance and hesitation—than the most trained lawyer in the land. It is something that he knows better than anybody else. If he wants some particular form of remedy, he can put that case much more clearly out of his own mouth than some other person who suffers only vicariously from the difficulty from which that person suffers.
419 If I understood the speech to which we have just listened, the Government's proposal is that the individual should have an unqualified right of legal representation. I think that that was the proposal—that it should not be necessary to obtain the permission of the chairman of the tribunal. I venture to voice this doubt. Would it not go to some extent towards formalising that atmosphere of informality which the Franks Committee has commended? These tribunals have been singled out by the Franks Committee for what I think I may describe as exceptional commendation. They work particularly well, and the Committee said, in regard to these tribunals, that they should be excepted from the principle that it is generally right that there should be a right of appeal on points of law to the courts. That is a striking commendation, and I think that all hon. Members, wherever they sit, will be glad to think that this work, which affects so very many people, often in humble circumstances, throughout the land, is so efficient.
I would not feel disposed to oppose the proposals to which we have listened. I simply venture that doubt, and say that we will want to look at the Government's proposals rather more closely. I assume that probably most hon. Members, when they look back on their experience, for example, in their own constituencies, would form the view that cases presented, for example, to industrial injuries tribunals or local insurance tribunals by the trade union representatives, are, on the whole, effectively and fully presented.
Speaking for myself, and I do not know whether any of my hon. Friends share this experience, I see the problem really arising—and it is not so very infrequent, as indeed the Franks Committee said—in the case of applicants before the tribunal who, for one reason or another, are not accompanied by their trade union representative. It may be that they have not paid their contributions, or for one reason or another did not belong to a trade union, or for other reasons apart from the ones I have mentioned.
I have not infrequently felt, looking at the matter again, and at the evidence placed before the courts by such applicants without legal representation that, had the case been more fully and care- 420 fully prepared and presented to the tribunal, they would undoubtedly have got the remedy for which they asked. I should be interested to hear whether any of my right hon. or hon. Friends in various parts of the House share that experience.
In the case of such persons, I would have thought that it was certainly very desirable that they ought to be legally represented. At the moment, they can be legally represented, if they want to be, before the industrial injuries tribunal, and the proposal of the Franks Committee—to which the Government do not limit themselves as I understand it, since they do not think the consent of the chairman of the tribunal should be necessary—is that in all cases without the consent of the chairman legal representation should be made available. I simply pose this question, and I do not know whether the Government have given it thought. Is it very likely that, in any case in this wide variety of cases that are heard before these tribunals, if there is an unfettered right to obtain legal representation, legal representatives will be employed?
I see that the Franks Committee's Report calls attention to the fact that in industrial injuries cases, although, as I say, and as the Committee points out, legal representation is allowable with the consent of the chairman of the tribunal, it is employed only in about 2 per cent. of the cases. It may therefore be that even if the Government's proposal is implemented it will not, in practice, make any difference. Speaking purely for myself, I should be glad to think that in the case of those who, for one reason or another, desire to be legally represented, there is no legal bar to their being so represented. I repeat that that is simply an expression of my own opinion, and I do not seek in any way to commit my right hon. and hon. Friends.
One matter which the Franks Committee reported upon was not mentioned in the speech of the Home Secretary, and that is the case of claimants for National Assistance. The Committee recommends that the present system, by which applicants for National Assistance have their claims heard in private, should continue. The Committee points to that as an exception from the general principle which it adopts that all proceedings should as far as possible be in public.
421 For a moment, I should again like to draw upon my experience as an ordinary Member of Parliament. I do not know how widely this view is shared. I very much welcome that recommendation by the Franks Committee. The Government say that in general they are accepting these recommendations, but I do not know whether they include that one. I feel that these applications for National Assistance should continue to be heard in private. My experience not infrequently is that applicants for National Assistance who have the strongest claim for it, and who, if they received it, might find great benefit resulting not only to their comfort but actually to their health, still decline to ask for it because they feel that some stigma attaches to it. I very much regret that, and always try to discourage that point of view when I meet it, but undoubtedly it still exists.
The idea that there is a stigma, the deterrent, such as it is, attaching to seeking National Assistance, to which claimants are clearly and obviously entitled in individual cases, might be increased and augmented if they felt that they might have to describe their personal and intimate difficulties before a public tribunal. I very much hope, therefore, that the Attorney-General will be able to tell us that this is one of the recommendations which the Government have accepted.
I turn now to the subject of county agricultural executive committees. As I understood the speech of the Home Secretary, the Government broadly accept the view put forward by the Franks Committee that a new tribunal should be interposed between the executive committee and the present agricultural tribunal which hears appeals. Again speaking entirely for myself, I do not feel convinced that that proposal is one which ought to be accepted. At present there is a one-tier appeal, and the Committee reports that the present independent appeal tribunal to which appeals go from the decisions of the executive committees is working very well and has not been the subject of complaint. Thus, we already have a one-tier appeal, and it is now proposed by the Franks Committee that a second appellate body should be interposed between the executive committee and the present appellate body.
This is not a sphere in which I can pretend to possess any personal expertise, 422 and I tread diffidently, relying on the experience of others and information which I have received. But am I not right in thinking—perhaps the Attorney-General will answer this point—that, for example, the National Farmers' Union is very much opposed to it? One ground given, understand, is that already executive committees are somewhat loath to exercise the powers which they possess. In exercising their powers, particularly when making supervision orders, they act as far as possible in a purely friendly capacity, trying to assist, rather than penalise, the farmer. Is there not ground for fearing that if a fresh tribunal were interposed between the executive committees and the present appellate tribunal, the activities of the executive committees would be still further inhibited and impeded?
After all, the Agriculture Act, 1947, was created upon the basis that there was a delicate balance between Parts I and Farmers were, under Part I, given certain guaranteed rights—expectations with regard to prices, and so on—on terms that under Part II they made certain that the agricultural industry served the community and ministered as far as it possibly could to the growing requirements of the community for all sorts of agricultural produce. It is, therefore, the case—I am sure the Attorney-General will agree—that the administrative functions which are vested in the agricultural committees are of prime importance, and a consideration which should weigh in the minds of the Government is that the activities of the committees should not be inhibited. At all events, they should not be unduly inhibited.
I do not join those who would seek to override the rights of the individual. When I listened to the Home Secretary's speech I noticed that he called attention to the possibility of "the law's delay", but he did not make reference to what I am sure we should all regard as at least as important—"the insolence of office". But I would ask the Government to reconsider whether there is any need to overhaul that aspect of the working of tribunals with regard to the agricultural industry.
Another matter on which I speak with hesitation is the question of appeals against supervision orders. I note from the Report that there is the very greatest 423 conflict of view as to whether there should or should not be appeals. On the one hand, the supervision order is, as the Act was conceived, an order which is not regarded as or intended to be penal. It is an order under which the farmer is, as it were, reminded of his obligations and shown how he can more nearly achieve the task set before him by the Act and the public interest.
On the other hand, as the Committee points out, the supervision order is registered as a land charge, and that may well be, particularly in the case of a farmer who works on an overdraft, a matter of considerable import. I merely pose the problem and should be grateful for the views of the Attorney-General. I take it from what the Home Secretary has said that the Government include that as one of the recommendations of the Franks Committee which they propose to implement.
I want for a short time to turn to the Health Service. I do not know what the Government's proposals are in this respect, because no reference was made to them in the Home Secretary's speech unless I missed it.
§ The Attorney-General (Sir Reginald Manningham-Buller)
It was dealt with.
§ Sir F. Soskice
I did not think it was dealt with. At all events, I should like to pose a question, and perhaps the Attorney-General will deal with it.
Might I remind the House how that matter stands with regard to the Report? The most important change proposed by the Franks Report is that all proceedings before the Appeal Tribunal —with one single exception—should, from now on, be public. At the moment, when the local service committee has recommended a punishment, and the executive has imposed on a doctor a punishment less than dismissal from the National Health Service, the doctor has a right of appeal to the Minister. If he appeals to the Minister, no publicity attaches to his appeal, and if the punishment be awarded and confirmed there is no public disclosure of the doctor's name, although I think there is disclosure of the amount of the penalty imposed.
The Franks Report recommends, in the first place, that even if the penalty recommended is less than dismissal from the 424 Service, appeal from it should lie, not as now to the Minister, but to the Appeal Tribunal. Then, as I have said already, it proposes that all proceedings should be public in the fullest sense; that is to say, I take it, that the evidence should be deployed in public, the arguments reported and so on.
I should be grateful if the Attorney-General would state what are the Government's views about this. Speaking for myself—and, again, I speak only in a purely personal capacity here—I have some hesitations as to whether it is altogether fair on the doctor that he should, in all cases in which he is brought before the Appeal Tribunal, have the matter discussed openly. Is it fair, for example, that that should be done in public in cases in which the charge is dismissed, in which the appeal is successful? Is it not enough, perhaps, to provide that only when the charge is sustained and the penalty—whether less than dismissal or dismissal itself—is, in fact, upheld and imposed, that the result, with the name of the doctor, should be published?
On the other hand, it must be said, as the Franks Committee points out, that the Disciplinary Committee of the General Medical Council normally—though, I gather, not always—does conduct its proceedings in public; and furthermore, that when a case actually comes before the Appeal Tribunal it must already, in the nature of things, be a case with regard to which the appropriate service committee has found that there is a strong prima facie case against the doctor which, in the view of that service committee, merits punishment. I simply pose the problem, and ask the Government's views about it.
I would also ask this question. Is it reasonable that with regard to their own disciplinary proceedings and the publicity attendant thereon doctors should stand in a different position from other professional persons—the profession of which the right hon. and learned Gentleman is such a distinguished ornament, the solicitors' profession, accountants and so on? In the light of these proposals, how do their procedures come out in comparison with the procedures applicable to other professional persons? I just put the question to the Attorney-General and I should be very grateful if, in due course, he would answer it.
425 I have pointed to two tribunals which, in a sense—
§ Mr. Charles Fletcher-Cooke (Darwen)
I was hoping that, before the right hon. and learned Gentleman left that point about doctors, he would express at least a personal view about the recommendation that the appeal should not be to the Minister, but to an appeal tribunal. What does he think about that? Is he or is he not in sympathy with that recommendation which, it seems to me, is an important one?
§ Sir F. Soskice
It is clearly an important point, and I can only answer the question put by the hon. Gentleman by saying that so far as I can see, purely as a novice in these matters, and not knowing all the various considerations that can be urged, except so far as I can collect them from the Report, on the whole it might be better to have one appeal tribunal to deal with all disciplinary matters against doctors—but I voice that opinion hesitantly, and would not feel competent to insist on it in the face of reasons deployed to the contrary.
That brings me to what I would describe as the sort of proceedings which are at the other end of the scale. They are opposite to the sort one contemplates when considering proceedings before a local insurance tribunal. I refer to such proceedings as those which deal with the compulsory acquisition of land, the granting or refusing of planning permission, the various inquiries that are held to assist a Minister in the conduct of his Department in respect of the use of land.
Here I should like to call attention to the fact that in a document entitled "Personal Freedom", published by the Labour Party about a year before the issue of the Report of the Franks Committee there appeared a number of proposals in which the spirit, certainly, of the Franks Committee was very closely reflected. I should like to think that members of the Committee derived great assistance from the perusal of this extremely valuable document. I do not say that it contains a monopoly of good feeling on these matters. No doubt, other documents from other parts of the House could be—and I believe are being—exhibited at this moment, though whether or not within the rules of order is a matter for you, Mr. Deputy-Speaker.
426 I should like to call attention to the very broad identity of view between the Labour Party and the members of the Franks Committee. In particular, that identity of view and the sources of feeling from which it obviously springs manifests itself in the conclusions both of "Personal Freedom" and of the Franks Report with regard to reports of inspectors at inquiries. After listening to the speech with which this debate opened, I think that I am right in saying that the Government have, in effect, adopted a kind of half-way house between the proposals contained in the Franks Report and the proposals contained in "Personal Freedom". They have, as I understand—though I may have it wrong—taken the view that, normally, the recommendations contained in an inspector's report should be made available, and the document, "Personal Freedom" runs on similar lines. It says that the report should be made available and that, where there is good reason, the recommendations themselves should also be made available.
Government Departments, understandably—we are all human—are reluctant to let any, shall I say, hindrance be placed in the way of what they honestly and sincerely believe to be the conscientious discharge of their duties and "interest rei publicœ" that they should fully use the powers—so long as they do not use them overbearingly and aggressively—vested in them by Parliament. Against that stands the interest and desire of the private individual. Inevitably, in a modern, complicated society, from time to time a clash develops between the two. On both sides of the House we approach the problem by saying that where a clash develops, then, if I may use another Latinism, fiat justitia, ruat cœlum. We would prefer to think that strict justice is done, whatever the impediment in an individual case that may be placed in the way of the Government Department.
Against that must be balanced the fact that we live in a highly competitive world, and that Ministers must energetically and unflinchingly face the duties that Parliament has put on their shoulders; and the task of such committees as the Franks Committee, and of this House in deciding which of these recommendations to implement, must be to find how the balance lies between the two. We, on this 427 side, would certainly welcome, on the whole, the approach that the Government have made. As I said, I am not seeking to commit anybody with regard to it, but, sympathetically, we think that the recommendations of the Report in general should be adopted so far as it is practicable to do so. I quite agree with what was said, that there must be not too much delay, and, equally, I agree that any complication in the proceedings should be avoided.
Nevertheless, it would seem that there is some, although, as the Franks Report points out, a limited amount of disquiet and dissatisfaction in some cases with regard to the workings of these inquiries. Ministers should give reasons for their decisions and those affected by inspectors' reports should know what is the content of them, particularly as regards the facts. How far it may be workable in all cases to expect a Minister to furnish a statement of his policy behind which a report is formulated, I do not know. I gather from the speech to which we listened that there may be serious practical difficulties there.
I was a little suspicious of the proposal that all that should be done was to arrange that any person who appeared before an inquiry should be told in some way or other where he can find out about a Minister's policy. That seems to be a process analogous to legislation by reference, which none of us in this House likes very much. Clearly, the Government will consider that and, when detailed and formulated proposals are to hand, we shall wish to examine them critically on this side of the House.
The proposal about councils is obviously an important one; it is, I think, wholly novel, no such proposal ever having been made before, so far as I know. We on this side of the House can see that a fresh, outside judgment about the proceedings of tribunals would be of value. We wonder whether it will, in fact, be a practical possibility to man the councils in such a way as to ensure that they bring to bear on these matters the wide range of experience necessary for the purpose of considering the wide variety of different tribunals under their purview, but we regard the proposal as a useful and interesting one and we shall be glad, in due course, to know how the 428 Government suggest that these councils should be manned.
In 1946, we attempted to deal with delegated legislation by passing the Statutory Instruments Act of that year. In a sense, the two problems, the tribunal and inquiry, on the one hand, and delegated legislation, on the other, bear a certain analogy one to the other so far as they present a problem and challenge to our society. We should like everything to be done and discussed on the Floor of this House, and we should like all differences to be brought before the ordinary courts of the land. In practice, it is not possible for that to be done. Having dealt with one item satisfactorily by the Act of 1946, it would be valuable and useful now to approach the other.
As I said at the outset of my speech, we on this side of the House, I am sure, join in the pleasure which was evinced opposite that we have had such an early opportunity to debate this Report and that, in general, its recommendations are found acceptable. We are particularly pleased that the spirit from which those recommendations emanate is a spirit with which the Government feel wholly in accord.
§ 4.53 p.m.
§ Sir Patrick Spens (Kensington, South)
I wish to begin by adding my thanks to the Franks Committee for the thoroughness with which it went into this subject, and for the exhaustive nature of the Report and recommendations which it made. It is, I think, a record that a Report of this magnitude should have been prepared and produced with such expedition and that it should be being debated by this House so soon after its publication. All of us who take an interest in this subject owe a very great debt of thanks to every member of the Committee and to those who have made possible the progress so far achieved.
I looked the matter up and found that it was in February, 1953, that my learned friends inside and outside the House asked me to become chairman of the committee of Conservative lawyers which produced the document to which the right hon. and learned Member for Newport (Sir F. Soskice) referred, "The Rule of Law". That we published in January, 1955. The Franks Committee was appointed before the end of that year.
429 Of course, we claim for our pamphlet no more than the right hon. and learned Gentleman does for his; we do not say it represents the last word. However, all these publications are indications of the way in which opinion not only in this country but in the United States, France and everywhere where there have been progressive, modern governments during the last twenty-five years, was moving.
There have been two great changes during the last quarter of a century. First of all, there has been the delegation by Parliament to large, independent, industrial and economic bodies of the carrying on of matters affecting the life of the country, very much beyond the control of this House. I should be out of order were I to go on to assert anything further about that. The second great change undoubtedly has been the tremendous growth of tribunals, committees and appeal courts which have come into being as a result of the social legislation of the last twenty-five years.
I and my friends went in very great detail into the existence of many of these tribunals both here and overseas, but I am bound to confess that it was not until I was honoured by being made chairman of the Select Committee on the Bill for the disqualification of Members that I discovered how many—literally thousands—of these bodies there were exercising some semi-judicial, semi-administrative, function all over Great Britain. It was when we had considered whether Members put in that kind of position could or could not rightly sit in this House that we realised what a number of these different bodies there is.
The task committed to the Franks Committee was an enormous one, and the way in which it has been able to give us general principles of direction as to how we ought to improve the situation is really remarkable. I myself believe that the all-important remark made in the Report was thatTribunals should properly be regarded as machinery provided by Parliament for adjudication rather than as part of machinery of the administration.That is the fundamental basis of the discontent here, in the United States, in France, in India and everywhere where there is progressive government. Are these tribunals set up to deal with individual cases merely to be considered 430 as part of the machinery of administration, to get on with the business of administration, or are they really to be made tribunals of adjudication in an attempt to do justice between Government Departments and individual citizens?
We all recognise that the decision which the Franks Committee recommends us to take, namely, to establish tribunals as tribunals of adjudication, must in many cases delay administration. To the extent to which it is necessary to mitigate that tendency. I am quite certain that, when detailed proposals come before Parliament, all of us will co-operate. In the first instance, these tribunals must cease to be regarded as part of the machinery of administration and must be given their proper function as tribunals of adjudication.
From that follows all the matters to which my right hon. Friend the Leader of the House has referred—the principle of impartiality, fairness and the like; the necessity to ensure that tribunals are appointed in a way that makes them impartial; the consideration of their procedure, so that impartial decisions shall be reached; and in order that the subject may regard the way he is treated as fair, a greater measure of publicity should be given to inspectors' reports, reasons, and so on. There is not one of the 90 recommendations that does not follow from the principle that these tribunals must be worked into our system as tribunals of adjudication and not as mere cogs in the wheel of the machinery of administration.
§ Mr. A. J. Irvine (Liverpool, Edge Hill)
In view of the emphasis that the right hon. and learned Gentleman is placing on this aspect of the matter, with which I agree, would I be right in thinking that he has heard with a good deal of disappointment the decision, which, I understand, has been made, that the inspectors who hold planning inquiries and preside at planning appeals are not, in accordance with the terms of the Report, to be placed under the control of the Lord Chancellor?
§ Sir P. Spens
I am obliged to the hon. Member. I intended to deal in detail with one or two of the proposals. However, the days when I practised in front of any of these tribunals or took part in their business have long ago passed and 431 I am not competent individually now, speaking from my own experience, to say whether this or that procedure or exception is right or wrong. What I do want to say is that I am quite certain that the suggestion which has come from the Franks Committee of the establishment of a council to superintend tribunals, and a council available to be consulted concerning who should be the members of this or that tribunal, is a suggestion which will prove to be of the greatest value.
One of the great difficulties has been not only that Ministers or heads of Departments appointed members of their own tribunals, but that there was a certain amount of haphazardness in the way in which individuals were selected. I feel that the establishment of a council is a great step forward.
I also welcome more than, I think, does the right hon. and learned Member for Newport the right of the individual to have legal aid if he wants it before any tribunal. Nothing makes a person more dissatisfied than to find himself or herself before a body of people, who are, perhaps, better educated and more experienced than he or she, very often in rather a hurry, and to find himself tongue-tied, as all of us who practise in the law know that a layman inexperienced in any of our procedure often may be, and then being turned down and feeling that he has not had a fair share. I regard it as essential, not that legal representation should be compulsory—far from anything of the sort—but at least that any person who wants legal representation should have a right to it.
§ Sir F. Soskice
Does the right hon. and learned Member realise that I did not oppose that? I was really raising the question of whether the Government were disregarding the recommendation of the Committee that legal representation should be only with the permission of the chairman of the tribunal in the case of local insurance tribunals.
§ Sir P. Spens
I beg the right hon. and learned Member's pardon. I thought he was rather regarding it as unnecessary as a principle. All I want is the principle that a person shall be entitled to legal representation. If in any particular case the House subsequently comes to the view 432 that it ought only to be with the consent of the chairman, I do not have the knowledge to know whether that would be right or wrong and I would not dream of forcing my view on the House in any way.
§ Mr. Barnett Janner (Leicester, North-West)
What is the view of the right hon. and learned Gentleman of the opinion which has been expressed concerning the granting of legal aid to the individual? If what the right hon. and learned Gentleman says is his real view—and I agree with him to a very considerable extent—it must necessarily follow that the person who is not able to obtain legal advice or legal aid should be in a position to do so.
§ Sir P. Spens
. The question of legal aid was to be my next point. I take the view that legal aid has been a very great social service. I think it is running into trouble now to a very large extent. I should like to see it extended. I do not believe that it is possible at present to extend it to every type of tribunal in the land. I accept what my right hon. Friend said about that.
That again, however, is a point that we must consider. We shall have to be satisfied why it is impossible, either in particular cases or generally, to provide legal aid. If, as I suspect, the situation at the moment will not allow it, then for the time being we must accept it. In principle, however, if a person is to have the right of legal representation, I am, naturally, in favour of making it possible for him or her to have it. It is not by any means necessary always to do it by legal aid.
Concerning appeals also, the principle ought to be that wherever possible an appeal should lie and certainly that in every single case where there is a point of law, there must be an appeal if such a point of law arises. On the agricultural side, it must depend upon what the powers of the tribunals are to be. If the powers of the tribunals are to be altered, as I understand they are, it seems to me that the machinery for dealing with complaints, and so on, must await the formulation of the powers.
All that I wish to emphasise this afternoon is that I believe the Report to be a tremendous step forward, not only to deal with the difficulty in this country, but to deal with it in the other countries also.
433 Very much to my surprise, when I was asked to talk to the American Bar Association on the Franks Report I had one of the largest legal audiences that I have addressed for a long time. The very problem with which this Report deals are, of course, encountered right through the States of the United States and the representatives of the various States were interested to know how at least Sir Oliver Franks and his Committee proposed that we should deal with them.
I regard this as, I would almost say, a surprising step forward. Sir Oliver Franks has done a very great service to the country. I realise that there is a difference of viewpoint between people solely occupied in administration and those of us who are occupied in the law. There is a fundamental difference of approach. It is enormously to the advantage of the freedom of the individual that the Report has taken the form that it has and that my right hon. Friend has accepted so many of its far-reaching recommendations. I look forward to legislation at a very early date.
I knew that it was a good omen when, at a certain conference at Brighton, my hon. and learned Friend the Joint Under-Secretary of State for the Home Department addressed us on the subject, because he was the real person behind the report of myself and my learned friends. Naturally he could do little more than hint at what would be accepted in the Report, but my hopes have been more than gratified today and I look forward to seeing the necessary legislation to put the promised improvements into effect with the least possible delay.
§ 5.10 p.m.
§ Mr. R. T. Paget (Northampton)
It is not for the first time that I feel that I am probably in a minority on both sides of the House with regard to this Report. I speak of it as a lawyer, and as a lawyer with a very acute realisation of the limitations of lawyers and of the legal system. I think that the most one can say of any proposed Measure is that it will probably do more good than harm. On balance, I believe that what is going to be done by this Report will do more harm than good. I will state why.
I think that we are confusing in this Report the judicial method of arriving at 434 decisions and the executive method of arriving at decisions, and those are quite different things. But a lot of these tribunals which we are considering—and this really goes to the root of what the right hon. and learned Gentleman has been saying—are not judicial tribunals at all. They are not performing, and ought not to be performing, a judicial function. They are performing, and ought to be performing, an executive function, May I try to distinguish what I mean by the difference between these two?
Take the simplest case of land acquisition. My land is required for a public purpose. The need for my land and the decision to take it is an executive decision and not a judicial decision. What I should be paid for it is a judicial decision to be arrived at fairly. The first decision, as to whether the land should be taken, is a question of expediency. As to what should be paid for it is a question of justice. That is the distinction that ought to be drawn. It is not drawn throughout this Report. To apply the judicial machinery for arriving at decisions, decisions which of their nature are executive, I believe in principle and in practice to be wrong and bad. It means that our decisions are slow. It means, in general, that our decisions are cowardly because we fear getting into the trouble of all the procedure in which we are involving ourselves. It means that our decisions are sluggish, and I do not for a moment believe that it means that our decisions are any more acceptable.
We are given the fundamental principle which we are told is openness. I agree with openness, although I was a little surprised at hearing the right hon. Gentleman being such an advocate of openness on executive decisions, since in many capacities, for a great number of years, he has established a reputation of being quite the cagiest customer at the Dispatch Box we have ever heard. But, whether they be judicial or executive decisions, I agree with the principle of openness.
But what about fairness and impartiality? Those words, to my mind, are just wind in this thing. Let us consider this position. A road separates my land from a neighbour's. It is proposed to widen that road. What does the Minister have to say? I object to it being widened my side. My neighbour objects to it being widened his side. Is the fair thing 435 to be done to widen both sides? Obviously not; that is absurd. What has to be decided is not the fairness and impartiality but what is most convenient, and what I have to argue to the Minister is that it will suit him better to go into my neighbour's land rather than mine. That is the reality of this sort of decision and where we have the executive decision —whether the land shall be taken and not how much is paid for it.
What is the right of the citizen is that in an executive decision which affects him he shall have his point of view brought to the attention of the executive officer that is deciding it. We do not want all this legal procedure for that purpose. Nor will it curb what my right hon. and learned Friend the Member for Newport (Sir F. Soskice) referred to as the insolence of office. We here, at Question Time, do more than anything else to curb the insolence of office. By putting the shadow of a legal procedure between the Minister and his responsibility, we shelter the Minister from the criticisms which are effective in curbing the insolence of office. Put up this legal procedure and Departments merely make themselves highly adept at making themselves inquiry-proof. They put themselves into a position in which they know that an inquiry cannot touch them. When they are criticised here, the Minister gets up and says: "This is sub judice; it is being considered by a tribunal; you cannot touch me here." That is all we do by muddling two methods and using them in the wrong place.
With regard to legal representation, I really was startled to hear the right hon. Gentleman say that there was to be legal representation before conscientious objectors' tribunals. The purpose of legal representation, I understand, is, paradoxically enough, that advocacy should cancel out and that the decision should be one of justice and not of advocacy. But this sort of issue which we get before a conscientious objectors' tribunal can only depend on how the matter is put, and the decision who should be excused and who not will depend on advocacy and nothing else. I cannot help thinking that is not a very desirable instance.
Again, another instance is this, and this is where I really come to the subject with which I want to deal, namely, agriculture. We say that a committee, with a 436 chairman with legal qualifications, has to decide whether a committee of farmers is right on the question of what is good husbandry. We might just as well appoint a committee, the chairman of which is a farmer, to decide whether the House of Lords is right on a legal decision. It is taking the legal right out of its context and position.
With regard to agriculture, where I very much hope that the qualified acceptance will ultimately result in no action, I should like to say this. The principle of the Agriculture Act is that upon the one hand the public underwrite the farmers enterprise and in consideration of that underwriting the farmer undertakes to conduct his enterprise by and large in the public interest. That is the basic bargain of the Agriculture Act.
How does the provision for supervision work in practice? There is the local agricultural executive committee, a civil servant with experienced farmers. When land is being abused the people in the district know it, for there is a feeling in the countryside about it. In the friendliest way, those people on the committee try to help the farmer. He may be short of capital and may need a loan for machinery, and he may get a loan for the machinery. He may need advice. He is helped in the friendliest way, and if it is considered necessary that this chap should carry on, he has really to accept supervision.
It is only at that point that a decision is made. If we are going to say at that point that those experienced farmers have got to justify their decision in front of a chairman with legal qualifications who may know nothing in the world about farming, what will be the result, even if he has the assistance of some assessors with some local knowledge? It is difficult enough already for these committees, as the Minister of Agriculture knows. We are not complaining that the committees are over-active. They are under-active throughout the country. We know that shockingly bad farming is not being restrained half enough. We are making an advisory procedure into an executive decision—and it is an executive decision —whether it is in the interests of the country that supervision should be exercised, more difficult, more dilatory, more complicated. Will a stubborn farmer who does not want help be more satisfied, 437 more peaceful about the decision in these circumstances?
At the next stage, which is acquisition, there is an appeal already, an appeal to the Agricultural Land Tribunal. It is so often the stubborn man who will not be helped, although every effort is already made to help him, and we should not provide him with more opportunities to waste his money and waste his land or its products. The Act is not working enough now. If we implement this proposal we shall bring it to a standstill.
I hope the Minister of Agriculture will oppose it very energetically, as I am quite certain that my right hon. Friend the Member for Don Valley (Mr. T. Williams) would if he were in his position. The proposal is no good. It has been opposed by the National Farmers' Union, who know it is bad for agriculture, bad for the land. It has been opposed by the National Union of Farmworkers. It was opposed by the last Commission which examined it. Yet it is suggested that the views of the people immediately concerned, who understand the countryside, should be overruled. I hope it will be reconsidered.
§ 5.24 p.m.
§ Sir Lionel Heald (Chertsey)
I hope that my hon. and learned Friend the Member for Northampton (Mr. Paget)— I may be unpopular for so describing him, but I propose to do so—will forgive me if I do not enter into a detailed discussion with him on the subject matter of his speech. His view appeared to be that legal advocates and members of the legal profession were to be discouraged in these cases, and his general view seemed to be that the legal profession in all its manifestations was of very little value to anyone. That may be his opinion. I have often wondered why we find ourselves on opposite sides of the House. After listening to him tonight, I begin to have some vague ideas about that.
§ Sir L. Heald
I do not think my hon. and learned Friend can be aware of the general feeling in this country on the subject, which, I believe, will be very much relieved by this debate today and by the Report before us. I do not think he is aware of that. Knowing his judicial and 438 fair approach to matters, I think that if he had appreciated it he would have taken the matter more seriously.
When I was coming to the House today I heard a conversation in the bus between two apparently intelligent and educated people. They were not Members of Parliament, but I hope that does not make that description inapplicable. One said to the other, "What is going on in the House today?" The other replied, "Nothing of any importance at all. It is some legal question about administrative tribunals, or something of that sort." It is very unfortunate that anyone should so speak of the matter. It means that a great many people in the country have got accustomed to the state of affairs. I think it has been taken in time, but people are becoming far too accustomed to this kind of thing going on, the sort of thing which we can find described quite clearly in the Report, and very moderately described by the Committee. I think the Committee might have gone a lot farther than it did. I think it approached the matter with studied moderation.
This is one of the most important matters to be debated in the House for a very long time. There are a great many Members of the House, like the hon. and learned Member for Northampton, who do not appreciate that there are a large number of people who think this sort of thing far more important than many other things upon which we spend a lot of our time.
When the Committee was appointed—I think it is right to say this—some doubts were expressed whether it would adopt a sufficiently robust attitude to what I may call the official view, the official view being what my right hon. and learned Friend the Member for Kensington, South (Sir P. Spens) described as the idea of the function of these tribunals. I might put it on another basis from that on which he put it. The view very often is that administrative tidiness is the most important thing. Some people put it differently and say that their view is that man was made for the State and not the State for man.
This debate shows that the House of Commons appears to have a very robust view on that subject. We should welcome the Report for that reason alone. Certainly we should not be doing justice 439 to the Committee if we did not make it quite clear that any apprehensions of the kind I have just indicated were quite unfounded.
A significant expression which has been used is that the tribunal should not be looked upon as existing in order to "register" executive or departmental decisions. That has a considerable bearing on what the hon. and learned Gentleman was saying. Because it is a lesser judicial examination, with evidence and arguments, it prevents the proceedings from being mere rubber stamp arrangements.
I cannot help reminding the hon. and learned Gentleman that it was a right hon. and learned Gentleman on his side of the House who said on one occasion that some of these inquiries were used for the purpose of enabling people to "let off steam" and apparently for nothing more. I believe that has caused the public a good deal of concern.
I would by way of preface to what I have to say repeat what I have said before in this House, and what I shall always say, that I personally have the greatest possible respect and admiration, and, I would say, personal friendship, for those who are engaged in the public service. But they have their job to do, and they have their ideas as to how it should be done. It will be seen from paragraph 40 of the Franks Report that the official view presented to the Committee was that these tribunals should be regarded precisely in the way that my right hon. and learned Friend the Member for Kensington, South has indicated.
Therefore, I say with the greatest respect and friendliness to these people, without whom the Government could not be carried on, that if this Report is adopted it will represent tremendous victory by the ordinary citizen over "the gentlemen in Whitehall." I believe that that will be generally recognised throughout the country, but there is not the slightest derogation of those gentlemen. Their business is to try to score the victory if they can. This is our opportunity of acting as referees and saying that the rules should be slightly altered.
I am sure that we shall all be delighted to feel that the Government do not intend to allow themselves to be advised to water down the recommendations in the 440 Report in that respect. I believe that we shall also be very delighted to have heard the right hon. and learned Gentleman the Member for Newport (Sir F. Soskice), my predecessor as a Law Officer, expressing the views that he did today. I believe that some of his comments will have surprised one or two of us who are delighted at his conversion even at this late stage.
One extraordinary fact is that the Franks Report has had so little impact on the general public and has received so very little attention in the Press. One reason for that may be that, when one comes to read it, what the Report says seems so very obvious. That there should beOpenness, fairness and impartialityseems to state itself, and one has the unpleasant feeling that surely the only reason why the Committee mentioned that is that it came across a good deal of evidence that those characteristics have not always been apparent. Surely it is rather an unpleasant thought that for 50 years we have been building up this tremendous system without looking after the proper conduct of the proceedings in that way. If that has been prevalent, even only to a small extent, it is quite sufficient reason for the Report and this debate.
I emphasise that point by mentioning three or four of the things that are now recommended as obligatory. One wonders how we have carried on all this time without ensuring their existence. The Report states that a citizen should be fully informed of all his rights in connection with a public inquiry. At present he is not so informed in some cases. Evidence of that was brought before the Committee, and some of us know of examples. Secondly, the Report states that the citizen should always be told in advance what the case is about and what case he has to answer or deal with. Again, that has not always happened, and surely that should be ensured. As to legal representation, I need not go into that question, but it appears that a case was brought before the Committee where it was found that the Crown had legal representation but the other party could not be represented.
§ Sir L. Heald
No doubt the hon. and learned Member has dealt with that point in his book.
Another point which has not yet been mentioned in the debate is the recommendation that the citizen should have a reasonable allowance for his expenses if his attendance is considered to be justified. I quite agree that if we go into complicated questions about detailed costs there might be some argument about it, but if a man or woman is involved in expense in going before a tribunal and his or her presence there is justifiable, it is only justice that there should be a reasonable allowance for expenses.
Another point made by the Committee which surprises the ordinary person when he finds that it is not now the case is that, as the Committee says, the Minister should not be the judge in his own cause, nor should his own officials conduct an inquiry from which there is an appeal to him. A great many people have told me that they have been amazed to find that that is the case now, and it is supposed that there must be some reason for it.
These are examples of very simple points which I believe the general public will appreciate when they come to hear what we have generally decided today. The recommended institution of a Council on Tribunals is a very wise and helpful provision, because it would remedy another difficulty found to exist, which is the lack of co-ordination between different kinds of tribunals, or even similar tribunals in different parts of the country, and the principles which they apply.
I think, therefore, that the Report is a very excellent one and that we should all welcome it, but there is a danger of our becoming complacent about it. I do not say that this has been a back-slapping occasion today, but so far there has been a certain amount of mutual congratulation. I feel that a different though not necessarily jarring note should be struck to the effect that we must appreciate that the Report covers only a very small part of the field. It is said by the Committee itself that the vast majority of cases in which members of the public come into conflict with Government Departments are not covered even by the terms of reference, as the terms of reference only apply to cases in which there is already a tribunal.
442 It is a rather solemn thought, and it is emphasised in paragraph 15 of the Report, that the famous Crichel Down case, which actually gave rise to the appointment of the Committee, is not covered by the terms of reference. In fact, the terms of reference appear to have been carefully drawn so as to exclude it. It is just as well to remember that.
There is another important and practical example which we must carefully bear in mind. There is no question of my being out of order in referring to something which is not within the Committee's terms of reference, because the Committee itself refers to it and points out that there might be a possibility of a misunderstanding. In the paragraphs dealing with compulsory purchase, the Committee points out that it would be a mistake to suppose that the improvement in the procedure which it recommends is likely to have any great result in removing public concern and anxiety.
Paragraph 278 states:…much of the dissatisfaction with the procedures relating to land arises from the basis of compensation…we cannot emphasise too strongly the extent to which these financial considerations affect the matters with which we have to deal. Whatever changes in procedure are made dissatisfaction is, because of this, bound to remain.We all know cases in our constituencies of two people whose pieces of land lie beside each other and are comparable in all respects. One has his land acquired by the local authority and the other sells to someone else, and the one gets four times what the other gets for his land. It is difficult for anyone, to whatever political party he may belong, or whatever seat he may represent, or whatever majority he may have, to explain that. Although the hon. and learned Member for Northampton may have no difficulty in explaining it to his own satisfaction, I think that he would have difficulty in explaining it to the satisfaction of my constituents. I think that that is the kind of thing we must go on to do. We must regard this as a start, but no more.
I was interested to hear from the right hon. and learned Gentleman the Member for Newport, my predecessor, that he admitted frankly that in 1945 his Government undertook a great extension of the area of government and so forth, 443 with the result that it created the kind of conditions that we are trying to cure by this Report. It was notable that he did not explain why he had never done anything about it himself. Therefore, I want to go on record in this matter in case somebody asks "Why have you not done anything before about this?" In the debate on the Loyal Address in December, 1954, which was the first occasion I had for several years of expressing myself entirely independently, I ventured to say:The great problem of government today is that of how to reconcile the freedom of the individual with that degree of interference by the State which is at all events necessary at any given time. We cannot expect any real assistance in that direction from Socialism, but we do expect it from a Conservative Government.…"—[OFFICIAL REPORT, 7th December, 1954; Vol. 535, c. 832.]Well, we have now got it.
§ 5.41 p.m.
§ Sir Lynn Ungoed-Thomas (Leicester, North-East)
I am sorry, Mr. Deputy-Speaker, that the right hon. and learned Gentleman the Member for Chertsey (Sir L. Heald) sat down after striking a slightly discordant note because, after all, his own Government were in power for four years before they even set about attempting to appoint a committee. The true position, as we all know, is that it takes some time to see how tribunals and inquiries of this kind work before we can with any reasonable satisfaction appoint a committee to look into them.
Let me say straight away that I personally agree almost entirely with the principles of the Report, and very largely with the suggestions put forward by the Home Secretary. Some of them do not go far enough and others are likely to go too far. I will refer to one or two of them a little later.
I agree with the right hon. and learned Gentleman that the scope of the Report is limited. That is because the terms of reference set down by a Conservative Government limited what the committee had to do. There are matters to which the right hon. and learned Gentleman drew attention which perhaps would be the better for investigation, but these matters are not merely to be found in public administration. There are trade associations with secret courts, and I would welcome an investigation into their operation, just as I welcomed the investi- 444 gation into the more open transactions which take place in the tribunals and inquiries which are the subject of this Report.
There are three dominating impressions which I had on reading the Report. First, it is conclusive in favour of the tribunal and inquiry system. What it proposes is not a recision of that system, but amendments to make it work more efficiently, better and more acceptably. We have had so much hot air about tribunals and inquiries, from the time of Lord Hewart's "New Despotism" down to the present day, that I think we all have occasion to be grateful for this sane and balanced judgment upon the working of the tribunal and inquiry system.
The second impression I got on reading the Report was the masterly analysis and enunciation of the principles which should govern the working of tribunals and inquiries. The third impression was that when the Report comes to apply those principles to specific cases, it of necessity is not so happy. It recognises this itself, and suggests the setting up of the Lord Chancellor's Council in order to keep tribunals in particular under review.
Of course, as the Home Secretary mentioned in his opening remarks, in considering the operation of the principles of openness, fairness and impartiality the Government must also take into consideration effectiveness, absence of delay and a balance between public and private interest. When we come to apply the principles of the Report to individual cases, then we are up against—and we must face the fact squarely—the kind of practical considerations which were so aptly illustrated by the speech of my hon. and learned Friend the Member for Northampton (Mr. Paget).
In carrying out the recommendations and principles of the Report, I gather that there will be amendments, in some cases of Statutes and in other cases of Statutory Instruments. Perhaps the Attorney-General will confirm this when he replies to the debate. Therefore, the Government's proposals in those cases will come before Parliament for consideration. It is important that the actual proposals the Government make after full consideration should in each case come 445 before Parliament for its views to be expressed; not merely where, of necessity, they will have to come before Parliament in cases of Statutes and Statutory Instruments, but also in cases where any substantial amendments are proposed.
There is one matter I wish to refer to before coming to the tribunals and inquiries, and that is the responsibility of Parliament in general in dealing with the scope of Ministerial discretion which is at the basis of our tribunal and inquiry system. Such trouble as arises here about ministerial discretion is a Parliamentary responsibility. These are discretions which are conferred on Ministers by Statutes or by Statutory Instruments and, therefore, we have a responsibility for the scope of ministerial discretion.
There are three kinds of machinery through which ministerial discretion operates. First, the tribunal system, secondly the inquiry system, and thirdly Ministerial discretion without any tribunal or inquiry. The tribunal system is one which applies where rules can be laid down, and the function of the tribunal is to apply those rules to the facts of the case. The inquiry system is where rules cannot be laid down but where an investigation is made, a public inquiry is held, or a hearing is given before applying policy to an individual case. Thirdly, there is the wide open Ministerial discretion including the Crichel Down type of case.
The principles on which we should act in deciding which of these methods should be adopted are as follow. Wherever rules can be laid down in a Statute by Parliament, they should be laid down. In other words, the Ministerial discretion should be as limited as possible. That can be done where there is a long-term policy, as in pensions tribunals.
In other cases, where there are sudden changes in policy—maybe whether there is to be a green belt or not, or perhaps variations in the needs of the Service Departments—of course rules cannot be laid down, but it is essential in those cases that Parliament itself should see that inquiry is held and that every possible safeguard is made in the interests of the subject against the exercise of unfettered Ministerial discretion.
I should like to see some kind of body within the scope of Parliament—just as 446 in the case of Statutory Instruments we have the Scrutiny Committee—a nonparty body of Members of Parliament or, if civil servants are required, something analogous to Parliamentary draftsmen, advising the House of Commons on a non-party basis as to the form of discretion which should be given to a Minister by a Statute in a particular case. That is far more appropriate and would be far more effective than having a Lord Chancellor's Council, outside the House altogether, advising upon new tribunals and what ought to be done, and pontificating about it.
It is a matter for Parliament itself to decide in the case of new tribunals. I am not referring to the suggestion that the Lord Chancellor's Council should have jurisdiction in respect of tribunals already established, keeping them under review, for that is a different matter. In the case of new tribunals it is the responsibility of Parliament, and the machinery for dealing with them should be devised within Parliament itself.
I come to the proposals about the tribunals. Here I am in very substantial agreement with the principles enunciated in the Report. I agree with the right hon. and learned Member for Kensington, South (Sir P. Spens) that the fundamental decision about the tribunals is whether they are adjudicatory or administrative. Before the Franks Committee, the Joint Permanent Secretary to the Treasury argued that they were administrative. I completely fail to see what basis there is for that argument. What the tribunals are doing is not just applying policy. They are applying stated rules to the facts in a particular case, and that is not a policy decision or an administrative decision in any sense but is an adjudicatory decision. I am in complete agreement with the Report and the right hon. and learned Member for Kensington South in that, as the Report puts it,tribunals should properly be regarded as machinery provided by Parliament for adjudication rather than as part of the machinery of administration.Once that fundamental decision had been taken, it seems to me that nearly all the other recommendations of the Report follow as a matter of course. There is legal aid and advice. I hope that the Home Secretary and the Government are not excluding the possibility of giving legal aid and advice in these cases. I do 447 not see on what ground of justice—the only exception might be the ground of economy—they can resist the application of the legal aid scheme to tribunals. The Report advocates it logically in accordance with its principles because it has come to the conclusion that it is an adjudicatory process. Once one has come to that conclusion, then the same reasons which would make legal aid and advice available in the courts would equally make legal aid and advice available before the tribunals.
It follows that the proceedings should be in public, that in general there should be legal representation, and that there should be absolute privilege for witnesses against the laws of defamation. I go further than the Report here. The Report says that absolute privilege should apply, at any rate, in those cases where evidence is on oath. I fail to appreciate the distinction between whether evidence is given on oath or not on oath. What is important is that there should be absolute privilege for the evidence however it is given. I do not suppose there would be much in this in practice, because if absolute privilege was given where the oath was administered and not otherwise, the oath would be generally administered.
There is also the matter of reasoned decisions being given. Of course there should be reasoned decisions. I do not agree with the limitation suggested by the Report. The Report says that the minority should not give their reason for dissenting because of the burden which it would place on the minority. This is an issue which was raised between the Government and ourselves in respect of the Restrictive Trade Practices Court, a very much more important tribunal. We proposed, on that occasion, that the minority should give reasons for dissent. Of course they should give reasons for dissent. The people before the court are entitled to know the decisions of the court, where there are differences, and what their chances would be in the event of an appeal. The reasons which apply to having a reasoned decision in the case of the majority apply equally to a reasoned decision in the case of the minority.
The Report then deals with the question of appeal. I am glad to see that the Report recommended that the appeals on fact, law and merits should go to not 448 the court, as the Conservative Party pamphlet proposed, but to an appellate tribunal. This is for the very good reason that if it went to a court, the appeal would be, as the Report says, from an expert tribunal to an inexpert general appellate body. The function of the court in these cases is to deal not with facts or merits but with law.
Here I go further than the Report. The Report says that there should be appeals to the court of law in some cases. I cannot understand the limitation. The function of the courts is to administer the law, and if it is their function to administer the law it seems to me that there should be an appeal to the courts not in some cases on law, but in all cases on law.
I now come to the appointment of the chairman and members of the tribunal. I agree that as it is an adjudicatory body the chairman should be appointed by the Lord Chancellor, and not the Prime Minister, as the Treasury suggested. Now we come to a difference between the Report and the Government's recommendations. The Report proposes that the other members of the tribunal should be appointed by the Lord Chancellor's Council and not by the Minister. I agree with the Report. The Government proposal is that the members should be appointed by the Minister—not by the Lord Chancellor's Council—after consultation with the Lord Chancellor. That is proposed on the ground that otherwise we should not preserve proper accountability to Parliament. I simply cannot follow that reasoning.
What accountability to Parliament is involved in the appointment of the membership of the tribunals? These tribunals are applying rules to facts. The legislative and administrative functions are finished when the rules are drawn up. The application of the rules is purely a matter of adjudication, and, therefore, no question of preserving proper accountability to Parliament arises. It seems to me that the Home Secretary simply got hold of a cliché and put it in as a justification for bargaining between himself and the Departments.
The proposal of the Government is that the members should be appointed by the Minister after consultation with the Lord Chancellor. It is a most dangerous proposal.
§ The Attorney-General
My right hon. Friend said that the appointment of the members would be by the Minister, not after consultation with the Lord Chancellor, but after consultation with the Council on Tribunals.
§ Sir L. Ungoed-Thomas
I am much obliged and I will continue the criticism on that basis.
Exactly the same principle applies, although I suppose that involving the Council in this would not be quite as important as involving the Lord Chancellor. There is no requirement that the Minister shall take the advice of the Council on Tribunals. The Minister can act contrary to its advice. The result would be that people would assume that the members were appointed after consultation with the Council so that the Council would give a cloak of respectability to the Minister's appointments. It would effect nothing else.
I should prefer to have it straight out, as a Minister's appointment without consultation, or, far better, the proposal of the Report, for the reasons I have given, that the members themselves should be appointed by the Lord Chancellor's Council. I completely agree with both the Report and the proposals of the Lord Privy Seal about the functions of the Lord Chancellor's Council, subject only to what I said about Parliamentary responsibility for ministerial discretion in new legislation.
I pass now from tribunals to inquiries. Here we are no longer in the realm where rules are drawn up and applied to facts. We are dealing with cases where policy is directly applied under administrative discretion. We are in an entirely different position because we have no longer a purely adjudicatory function, but a mixture, as the Report says quite clearly, of an adjudicatory function with an administrative function. I will confine myself very shortly to the two big issues about inspectors.
First, should inspectors be appointed by the Minister, or should they be independent? Secondly, should inspectors' reports be published? It is important to emphasise what is found by the Report about inspectors, because so many wild allegations have been made against the tribunal and inquiry system. The Report says: 450…we have received…no criticism of the qualifications of inspectors or of the manner in which they conduct enquiries.That should be recognised and accepted, but now we come to the question whether inspectors should be independent or appointed by the Minister.
The difficulty is that inspectors act in two capacities, an adjudicatory capacity and an administrative capacity. Two strong views are held on this subject. The Report says that appearance is what matters and that, therefore, inspectors should be independent. Appearance cannot be all that matters and the question is whether appearance matters most. Against that we have the view that the Minister is responsible for the decision and the inspector who acts in his place must therefore be his man.
The inspector has two functions, two functions which result in his report. First, he has to find facts, which is an adjudicatory function. Then he has to give advice to the Minister, which is an administrative function. If it were possible, the simple solution would be to separate those two functions and to say that the inspector should find the facts and that there should then be full publication of the inspector's report. That may not be a practical solution and it is on the footing that it is not a practical solution and that the two functions have to be performed by the same man and covered by the same report that I will inquire into the matter a little further.
The Report says that the inspector's report should give findings of facts, reasoning from facts, including application of policy and recommendations, that is, advice, to the Minister about his action. The first, the finding of facts, is adjudicatory. And the second and third are administrative. The Report says:The inclusion of recommendations is important, since the inspector hears the evidence at first hand and has an opportunity of immediately relating what he hears to the physical facts of the case, by personal inspection of the land.The Report therefore emphasises the importance of the inspector making recommendations and including them in his report. There is not much difficulty in deciding that the inspector's report should be published and that the inspector himself should be independently appointed, if what he is concerned with 451 in practice is almost entirely a question of fact, as is the position of inspectors under the Ministry of Education. Nor is there much difficulty in coming to the opposite conclusion where the whole gist of the inspector's function is almost entirely administrative and advisory and the application of policy.
The difficulty comes where we have both those functions, the adjudicatory and the administrative equally balanced. In those circumstances, the inspector must be appointed by the Minister, because the Minister is responsible for the decision and the inspector's advice and recommendation are essential parts of the ministerial process of making up the Minister's mind. He must, therefore, be responsible for appointing the inspector who acts under him in exactly the same way as anybody else within the Department. Therefore, I agree with the broad conclusion of the Lord Privy Seal that the appointment should be made by the Minister.
However, as I understand it, there is again a compromise where the Lord Privy Seal proposes that the appointment should be made only after consultation with the Lord Chancellor. Exactly the same objections apply here as I have already adumbrated in the case of members of a tribunal. The Lord Chancellor's advice need not be accepted, so that he would be saddled with the appearance of responsibility in a matter for which he might not be responsible and so we would be getting the worst of both worlds.
It would be far better to have an outright decision, contrary to my own view, that the Lord Chancellor should appoint the inspectors, rather than have this muddled cloak of respectability cast over the appointment by associating the Lord Chancellor's name with an appointment over which he has no power. I hope that the Lord Privy Seal will stick to his proposal that the inspector shall be appointed by the Minister, but will eliminate his intention that it should be after consultation with the Lord Chancellor.
Should the reports be published? Exactly the same reasoning applies to the reports as to the appointment of the inspector. With regard to findings of fact the reports should be published; there is no difficulty about that. I do not 452 think that anybody, at any stage, has opposed the publication of findings of fact by an inspector. The difficulty arises when we consider whether the other part of the reports dealing with application of policy, and the recommendations, should also be published. For the reasons that I have already given, these seem to me to be part of the administrative function of making up the ministerial mind, and I should be against the publication of the application of policy and of the recommendations.
Let us consider the Minister's position. He has an inspector, whom he may or may not have appointed, making recommendations to him. If that inspector has not been appointed by him, the Minister simply has to say, "I have followed the inspector's advice and I am not responsible for the inspector." It seems to me that in that case it would go to the root of ministerial responsibility. In my view the appropriate, logical and proper course is to try to sever the fact-finding adjudicatory function of the inspector from his administrative, advisory function; to do the same with the reports; to put the inspector and that part of his report which is purely fact-finding in a position entirely independent of the Minister, and to put responsibility for that part of the inspector's function and that part of his report which deals with administration and advice entirely on the Minister, and make it quite clear that it is the Minister's exclusive responsibility.
These are difficult matters to argue out, and they will be still more difficult when they have to be applied in the case of individual inquiries and individual tribunals. But that will have to be done, and the place where it will have to be done is in this House and in Parliament. I hope that this debate will be treated merely as an indication of the views of right hon. and hon. Members as to the general approach to the whole tribunal and inquiry problem, and that when it comes to the question of applying these principles and this general approach to individual cases, every factor that affects the case in question will be carefully examined.
It is for that reason that I press the Attorney-General to state that the House will have an opportunity of dealing with the individual application of the principles which are the subject of today's debate.
§ 6.15 p.m.
§ Mr. John Hobson (Warwick and Leamington)
I also should like to express my admiration of the work of the Committee whose Report we are considering today. Its breadth and scope, the number of subjects with which it has dealt, and the precision with which it has dealt with them, are remarkable. I am not surprised, however, that the Report has not attained great popularity among the public, and is not the subject of frequent discussion by people travelling on the buses, because it is concerned with procedure. Professor Maitland has said that liberty and justice are secreted in the interstices of procedure. That does not make procedure any more interesting for the majority of the public.
We all know that we can get our liberty by habeas corpus, and we also know that habeas corpus is effective only because there is a proper procedure by which the citizen can obtain his liberties. Nobody is interested in the procedure, but everybody is interested in obtaining the liberties. It is for that reason that I agree with previous speakers that while this is a dull subject, in a sense, it is of immense importance to our citizens so that they can obtain justice and right, and not be overridden by administrators and bureaucrats representing whatever Government may be in power.
I desire today to address myself to only one aspect of the Report, namely, that part which is concerned with proceedings under the Agricultural Holdings Act, and its recommendations in relation to county agricultural executive committees. I do so for three reasons: first, because agriculture is an exceedingly important industry in this country, and I represent substantial numbers of farmers and landowners in my constituency; secondly, because my right hon. Friend the Lord Privy Seal invited the views of Members upon this subject and, thirdly, because I have been fortunate enough to have the honour to appear on many occasions before agricultural land tribunals and in other matters concerning agricultural holdings.
I heartily agree with the recommendation of the Franks Committee that county agricultural executive committees should not in future have any judicial or quasi-judicial functions—with one exception. I think that the estate management com- 454 mittees of agricultural executive committees are proper bodies for exercising the discretion of the Minister in lieu of the landlord when deciding whether approval should be given to long-term improvement on farms.
An estate management committee is composed half of landlords and half of tenants. It knows the locality; it is well qualified to judge such applications. Further, these applications are to a large extent administrative rather than judicial.
There is every reason why, nevertheless, county agricultural executive committees should not continue to discharge judicial functions. Those functions at present fall into two quite different categories. There are those which concern the good husbandry of the farm, in which either a dispossession order or a supervision order may be made or, alternatively, there are disputes between landlord and tenant concerning notices to quit and the right to continue in possession. Decisions on both these questions are unsuitable for determination by a county agricultural executive committee because, as the Franks Committee points out, it acts as detective in the first place, then as prosecutor, and subsequently as judge. Moreover, it is almost impossible for the members of such a committee, within a county, to sit in judgment on their own brethren; there are too many loyalties and personalities involved for a satisfactory decision to be reached.
I know one practising solicitor who never, in the first instance, conducts his case except at half-cock when appearing before such a committee, because he knows that it will go automatically to the agricultural land tribunal in any event. Practically all these cases finish up at the agricultural land tribunal.
If that recommendation is accepted, it presents the problem of what should be put in place of the executive committee. The Franks Committee has recommended that it should be a body presided over usually by a legally qualified chairman, with other local representation. In other words, it will be only a minor agricultural land tribunal. The present tribunal is composed of a legally qualified chairman assisted by a representative of landlords and a representative of tenants. I cannot understand what benefit could be derived from setting up a new tribunal which is, apparently, to be of a lower quality than 455 the appeal tribunal, to discharge exactly the same function as the appeal tribunal, and to result in two hearings both on fact and on law, when everyone knows that the final decision will be that of the agricultural land tribunal. That seems to me merely a waste of time and of the litigant's money.
It also has this other grave disadvantage which those who have appeared in cases before agricultural land tribunals will know. The hearing before the tribunal does not take place for anything up to six to nine months after the process has begun. Therefore, the tribunal is not able to see the farm at the vital time. Much window dressing can be done and the parties are left for a long period in a state in which they do not know the eventual outcome of the litigation. I hope, therefore, that the Government will consider that all cases removed from the jurisdiction of county agricultural executive committees should be removed for hearing before the agricultural land tribunal as a tribunal of first instance, that tribunal being subject only to an appeal on points of law to the general courts of this country.
I am glad that the Franks Committee has not heard any criticism of the agricultural land tribunals. I should like to put it a little higher and to say that they are most admirable bodies. The selection of their chairmen has been excellent, and they discharge their duties in a way which has led to practically no criticism of any sort. I hope they will be a model for other tribunals in the future. They combine the advantages of judge and jury. A legally qualified chairman can direct the minds of the members of the tribunal to the issues, and these sensible experts can, under his direction, and with him, come to a proper conclusion. One other advantage is that the decision of the tribunal is binding on the Minister. I hope that this system will be a model for many other tribunals which we are discussing today.
§ 6.23 p.m.
§ Mr. R. E. Prentice (East Ham, North)
A number of hon. and learned and right hon. and learned Members have taken part in this debate and, as a non-lawyer, I feel rather like an Englishman taking part in a debate on Scottish affairs; not so much like Daniel in the lion's den as a 456 very timid lion cub in a den of Daniels. I wish to make a contribution to this debate based on my experience, as a trade union official, of social insurance and industrial injury appeals. It would not be improper to say that in this respect not only have the trade unions given considerable service to their members over a long period, but they have helped in the operation of the legislation with which we are concerned. They have played a real part which, I think, deserves wider recognition.
Hon. Members speaking in this debate have referred to the spread of tribunals in this country since the war as though we should approach the matter apologetically. My right hon. and learned Friend the Member for Newport (Sir F. Soskice) said that it would be better were everything done through the courts rather than through the machinery of special tribunals. I do not think that is so. In many ways tribunals give far better service to the country than the courts could possibly do. My own experience in connection with industrial injuries is limited to the years since the National Insurance (Industrial Injuries) Act came into force, but I have learned a great deal from my older colleagues who have had experience of dealing with matters relating to industrial injury through the courts under the old Workmen's Compensation Acts.
The tribunal system has tremendous advantages for the people concerned. It has the advantage of speed. A local tribunal can decide a case within a few weeks or, if it goes to the Commissioner, it may be decided within a few months. Were such cases taken to the courts, they would take much longer to decide.
There is also the advantage of cheapness, particularly for those people who have no trade union or other organisation behind them and who do not qualify for legal aid. People who have some doubt whether their case will succeed are deterred by the cost involved. Another great advantage is that of simplicity. People find themselves in an atmosphere in which there is little formality; legal phrases are seldom used and most people can understand what is going on. I hope that lawyers present will not think me disrespectful if I say it would be a good thing if the courts of the country did their business more quickly and more cheaply 457 and with greater simplicity. In other words, I think they have something to learn from the tribunals in that respect.
I am confining my remarks to those tribunals concerned with social insurance and industrial injuries. These have not been mentioned much so far in this debate, probably for the same reason that they get but brief reference in the Report, because the system is working well and on the whole gives satisfaction. We are reminded in the Report that 50,000 or 60,000 cases every year are heard by National Insurance and industrial injury tribunals and I believe that these tribunals meet the requirements of openness, fairness and impartiality which the Report lays down.
Regarding legal representation, I feel that the correct course would be for the chairman to be allowed to decide whether legal representation should be permitted. I hope I shall not be accused of having a bias against lawyers, but in these matters there is a lot to be said for keeping the atmosphere as impartial as possible. The more these tribunals are invaded by lawyers the greater the danger of the proceedings becoming formalised and legalised. The trade unions in matters of industrial injury and the British Legion regarding war pension appeals have been able to build up a fund of specialised knowledge and they can provide representatives who can state a case as well as any lawyer. There is an argument that people who have a complicated case and belong to no suitable organisation should have the services of a lawyer and I think that the chairman of the tribunal is the best person to decide. If the matter is thrown open too wide, there is a danger that people will feel the only really satisfactory way of conducting their case is to have a lawyer; that there is a first-class and a second-class way to do it and that the first-class way is by employing a lawyer. That, I consider, would be unfortunate.
I wish to refer to paragraph 177 of the Report concerning the right of people to appeal from local appeal tribunals to the Commissioner. This applies equally to the National Insurance Act and the National Insurance (Industrial Injuries) Act. I see no objection in principle to the recommendation of the Franks Committee that there should be an automatic appeal for all claimants. If for any 458 reason the Government cannot accept it, there remains a very strong case for adopting the recommendation of the Trade Union Congress that trade unions should have an automatic right of appeal in industrial injury cases. It is anomalous that the trade unions have that right under the National Insurance Act but not under the Industrial Injuries Act where their experience is even more relevant.
Within my experience, whenever my union ask for leave to appeal under the Industrial Injuries Act we are nearly always given leave because it is known that we do not put in applications that are frivolous, where an appeal is bound to fail. The process of obtaining leave leads to delay in the cases of people who are suffering from industrial accidents and disease and are anxious to know the outcome of their case.
There are two points upon which I disagree with the Report in the field that I have chosen to speak on. I support the principle contained in paragraph 105 in which the Report says:In the absence of special considerations we consider that the ideal appeal structure for tribunals should take the form of a general appeal from a tribunal of first instance to a second or appellate tribunal.I would mention two types of tribunal to which the Committee have not seen fit to extend that principle. First, there are those that deal with medical questions under the Industrial Injuries Act. These are decided by a medical board with an appeal to a medical appeal tribunal. This kind of question gives rise to more complaints than do the ordinary questions that go through the machinery of insurance officer, local appeal tribunal and commissioner. One reason is that the medical appeal tribunal exercises its jurisdiction over a region, of which there are fourteen in the country. There is no national appeal tribunal.
Many of the cases that come before the medical appeal tribunal are purely medical. It has to decide, for instance, whether a man is 30 per cent. or 40 per cent. disabled, and in the majority of cases there is nothing very much to be gained from having a national appeal tribunal to adjudicate. Some of the questions, however, are legal or semi-legal. For that reason a legal chairman is appointed in addition to two medical members. In such cases there is a definite need for a body of case law to be built up by a 459 national tribunal which could be followed by the regional tribunals.
I remember the case of a man who was completely blind. He lost the sight of one eye in an industrial accident and the sight of the other from natural causes. His case was considered under the "paired organs" regulations whereby if a man loses an ear or an eye or any paired organ in an industrial accident and if he has already lost or later loses the use of the other, special considerations enter into the assessment of his case.
I do not want to go into too many technicalities, but the question arose whether the man was entitled to 100 per cent. or to only 50 per cent. disablement pension. I believed and still believe that he was entitled to a pension of 100 per cent. The medical appeal tribunal decided otherwise. Rather later there was a similar case in another part of the country, where the tribunal found in favour of the claimant. That is an example of where justice might not have been done and where there is the need for a further right of appeal. Where there are legal points there should be an appeal to the Industrial Injuries Commissioner.
The other aspect I want to present concerns the National Assistance appeal machinery. The Franks Committee concluded that no further appeal was needed from the decision of a local tribunal to any kind of national tribunal or to the National Insurance Commissioner. The reason is stated in paragraph 182 of the Report, which says:Although in form these Tribunals hear and determine appeals against decisions of local officers…in practice their task much resembles that of an assessment or case committee, taking a further look at the facts and in some cases arriving at a fresh decision on the extent of need. For this reason and also because by their very nature questions of assistance require to be finally determined as quickly as possible, we do not think that the provision of a further appeal on merits from the Tribunals is appropriate.That is probably true of the majority of National Assistance claims but not of all of them. According to the Report of the National Assistance Board for 1956, there were 9,789 appeals heard during the year by the tribunal. Of that number, 9,241 related to the rate of assistance but 548 other appeals were concerned with 460 other matters, such as whether an applicant was refusing to maintain himself or his dependants, and with arrears of insurance benefits. In those 548 cases and probably in some of the larger number the tribunal was not merely a case committee but had to interpret what the Act intended in relation to those facts. There are 151 different National Assistance tribunals. The House has been reminded that many of them have non-legal chairmen. It is unsatisfactory that different interpretations are put upon the Act in different parts of the country, and that there should be no right of appeal.
I would cite a case which came to my attention some years ago of a man who was living on practically nothing. Most of his sickness benefit was taken up with paying his rent and it is no exaggeration to say that he was slowly starving to death. He was a very sick man. On his mantlepiece was a quantity of doctor's prescriptions which he had not been able to take to the chemist. The local National Assistance appeal tribunal decided that his wife, who was living in the house and was earning a weekly wage but was taking no steps to help to maintain him, should be considered as a member of his family. The tribunal rejected the appeal and the man had no further right of appeal. I am glad to say that by writing to the Chairman of the National Assistance Board I was able to get the case re-investigated and assistance was granted. In such cases there should be a right of appeal, which shoud be automatic.
Many of the matters I have been raising may seem minor criticisms of schemes which, on the whole, are working well, but in these matters we are dealing with the human problems of people for whom this legislation was intended and towards whom the community has a special responsibility. If there is an injustice even in one or two cases only we must take very great care to examine matters to see whether improvements can be made. I hope that the Government will consider the suggestions that I have made.
§ 6.38 p.m.
§ Mr. John Morrison (Salisbury)
I am very glad that I have caught your eye, Mr. Speaker, I do not try to catch it very often and nobody can complain that I take up a great deal of the time of the Chamber.
461 I speak as one of three hon. Members who sat on the Franks Committee, the only hon. Member from this side of the House. I speak, like the hon. Member for East Ham, North (Mr. Prentice), as a layman and not as a man of law. With reference to the hon. Member's speech, I hope that I may say—and I mean this—that it showed great understanding of the personal problems of many of the people who are concerned with the ultimate results of the work of these tribunals.
Before I say anything else, I would pay a personal tribute to our Chairman, Sir Oliver Franks. A tribute has been paid to him by right hon. Gentlemen on the Front Benches, but all those who served on the Committee, whether they be in this House or not, would agree that I speak for them all when I say how grateful we were to him for the conduct of our affairs in that rather long two years of committee work.
It was indeed a pleasure to work under Sir Oliver Franks. He is a man of great experience, a man of letters and of law. He was a distinguished civil servant in the war, a distinguished diplomat and ambassador, and now he is a distinguished banker. It is very difficult to find a man who has more varied experience, and the Government are to be congratulated on finding such a man to take on the chairmanship of this Committee.
I am sure that Sir Oliver Franks, if he were taking part in this debate, would like to pay tribute to one other member of the Committee, and that is Lord Justice Parker. As the senior man of law on that Committee, he acted as our unofficial second-in-command, or deputy-chairman; he did a great deal of extra work in looking into the complicated facts and many of the legal questions, and he also kept people like myself, who are not primed in the law, on a straighter and narrower path than would otherwise have been the case.
I was very glad to hear from my right hon. Friend the Home Secretary, in his opening remarks, that the Government wholly or substantially accept the recommendations of this Report. I was also very glad to hear the right hon. and learned Member for Newport (Sir F. Soskice), who spoke from the Opposition Front Bench, say that the Opposition as a whole accepted in general, with certain reservations, the whole principle of the 462 Report. It will make those of us who spent a long time on the Committee feel that our labours have not been entirely in vain and have not been pigeon-holed, as has so often happened to many Reports in the past. I am glad to see in the Chamber at the moment the hon. and learned Members for Cardigan (Mr. Bowen) and for Paisley (Mr. D. Johnston), who also served on the Committee.
I believe that the setting up of this Committee and the 95 recommendations that it made are of great and lasting constitutional importance to the rights and liberties of all citizens, men and women, throughout the land. Therefore, I am very glad that the recommendations have had a favourable reception from Her Majesty's Government. There were two reservations from one member of the Committee, Lord Silkin, but when one thinks of the number of members, and hears in mind their different shades of political opinion and their knowledge of different walks of life, I think that to have 95 recommendations, with only two small outstanding reservations, is a remarkable piece of unanimity and a remarkable tribute to the Chairman.
Lord Silkin was, unfortunately, seriously ill towards the end of our deliberations and was not able to participate in our final meetings, but I am very glad to say that I have since seen him in another place, fully recovered, and I am sure that all of us who sat on the Committee are glad to know that.
There is one question which I do not think has been touched upon in this debate. In a way, the Committee was exceeding its terms of reference in dealing with it at all, but I think it should be mentioned, and perhaps my right hon. and learned Friend the Attorney-General, who may be winding up the debate, will see tit to say something about it. I refer to the question of compensation in cases of compulsory purchase. We as a Committee felt unanimously that this should not go without mention, and that much of the trouble and difficulty of legal tribunals could be avoided if only the market value could be paid in the case of compulsory purchase. I ask the Government to dwell seriously on that matter.
My right hon. and learned Friend the Member for Kensington, South (Sir P. Spens) referred to a little book with which he was concerned, as was my hon. 463 and learned Friend the Joint Under-Secretary of State for the Home Department—"The Rule of Law." As another little book was produced on the benches opposite, I should like, without wishing to be over-political on this occasion, to say what a great help "The Rule of Law" was to all of us who sat on the Committee, particularly the lay members like myself.
The salient recommendations of the Committee seem to come under various headings: first, the setting up of the Council which is to co-ordinate and guide existing tribunals. I was glad to hear the Home Secretary say that that recommendation, in general, was accepted. He also said that the appointment of the Chairman would be a matter for the Lord Chancellor, and I believe that will give satisfaction to all of us who worked on the Committee.
I was not quite clear what my right hon. Friend said about the appointment of the members of the Council. I shall not labour that point today because I would like to give it more thought, but it may be that I shall not be quite so happy about that matter.
The general function of tribunals was accepted by the Franks Committee as working satisfactorily, with the exception of agricultural executive committees. I have heard the observations on that subject from hon. Members opposite, but I welcome very much what my right hon. Friend the Home Secretary said about it.
With regard to administrative inquiries, I should like particularly to welcome the fact that the inspector's reports are to be made public, although I am not quite so happy about the Home Secretary's suggestion that the inspectors themselves should be appointed by the Ministers. I hope that matter will receive further consideration. I believe it would give added comfort to the public or to anybody appearing before an inquiry if inspectors were appointed by an independent authority.
But I know that this is a difficult question and that it is easier to make these statements than to decide what actually should happen. At the same time, I hope my right hon. Friend the Home Secretary will heed some of the things which have been said today, not only on the matter 464 which I have just been discussing but on other matters, as well as some of the things which may be said by the civil servants who may see difficulties arising from the acceptance of some of the recommendations. We in this country are very fortunate in having a very good Civil Service, though I sometimes think that if they were promoted and paid for saving the country a bit more money, rather than spending it, it would be better still; but that is by the way.
I should like to emphasise one matter which was agreed unanimously by the Committee, and it is this:We wish to emphasise that, whatever our recommendations under either part of our terms of reference may be, nothing can make up for a wrong approach to administrative activity by the administration's servants. We believe that less public resentment would be aroused against administrative action if all officials were trained in the principle that the individual has the right to enjoy his property without interference from the administration, unless the interference is unmistakably justified in the public interest. For example, the attitude of an owner or occupier may well turn on whether…notice of a proposal to inspect the landis properly given. It is worth remembering that particular point.
I do not want to take up more of the time of the House. I am very grateful for the words of the Home Secretary and I hope that we shall find that a great many of these recommendations will shortly get on to the Statute Book.
§ 6.51 p.m.
§ Mr. Julian Snow (Lichfield and Tamworth)
I think that many hon. Members have been profoundly disturbed at the lack of interest with which this Report has been received by the public at large. I have no doubt that to a very great extent we have been responsible in our constituencies.
I think I should couple with ourselves the responsibility of the Press in this matter. It sounds a boring subject, but in reality the operation of these tribunals and the holding of these inquiries touches upon the lives of many of our constituents who, in my experience, tend to raise an issue rather late in the day. Bearing in mind the atmosphere in which this discussion has taken place this afternoon, I should not like to say anything which sounded unduly critical about the conduct of local inquiries, but I wonder whether we should not face the fact that 465 the esteem which some inquiries have incurred has suffered slightly by the very structure of the court of inquiry itself.
I have in mind the sort of situation that arose in my constituency about three years ago, when it was proposed to build a series of pylons to carry an overhead power cable from a place called Drake-low. I was brought into the matter when a number of pylons had been constructed, quite a large number, with concrete foundations and there was entry on to land long before the inquiry had taken place. The inquiry had been publicised and everyone knew that it was to consider the route which the line should take. I am told that that is something which has happened quite a few times.
I wonder whether, possibly tonight, when the Attorney-General winds up the debate, we can be told, as a matter of interest, on how many occasions an inquiry has followed the starting of operations and building construction? The public may say, "They are just doing this as a face-saver. The work is going to be done anyhow, so why waste time?"
Speaking from this side of the House, I realise that I am rather vulnerable in raising the rôle which is played in this matter by nationalised industries, but I think that in a debate of this kind should raise the question. I do not think hon. Members can chide me with adopting an unduly uncritical attitude towards nationalised industries, which I support politically. I am concerned with Recommendation 75, to which the Lord Privy Seal addressed his remarks. I am referring to the question of evidence at inquiries.
Purely in a private capacity, I attended an inquiry about the establishment of the nuclear power station at Bradwellon-Sea, in Essex. I corresponded with Sir Anthony Eden after that inquiry, because I was so perturbed about the situation which, it seemed to me, had arisen. The acquiring authority in that case was the Central Electricity Authority and the inspector was provided by the Ministry of Power. The chief witness for the Central Electricity Authority—this is not a criticism, but a mere statement of fact—was quite incapable of answering questions which were addressed to him, by others and myself, about the need for the acquisition of that particular piece of land, as opposed to others.
466 Under the rules, no evidence was provided by other Departments. The original intention of the Ministry and the Authority was to locate the power station at a place on the River Crouch, about 15 miles from Bradwell. It was decided before the inquiry that they could not put the power station there because the effluent of hot water would affect the oyster beds in the locality, the oyster beds in question belonging to the Ministry of Agriculture. In due course, it was decided to locate the power station at Bradwell-on-Sea, where there are important oyster beds owned by private individuals and companies.
At the inquiry we were not in a position to ask officials of the Ministry of Agriculture how it was that the Ministry was prepared to defend its own oyster beds, but not prepared to defend the oyster beds which were not under the Ministry's control. I ask the House to bear with me on this, because I am trying to illustrate the fact that there is a substantial reason for querying Recommendation 75.
When I asked the Central Electricity Authority's chief witness what steps had been taken to find in the area land which might be superfluous to Government Department requirements, a very distinguished "silk" appearing for the Authority asked, "How on earth can this witness know that?" I rather agreed. Perhaps I may add, in parenthesis, that the Central Electricity Authority was supported on that occasion by no fewer than 43 officials to provide evidence during the conduct of the inquiry.
I raised the point that it might well be the case that the War Department owned land in the area of a suitable nature adjacent to the sea, which could be used for cooling purposes and that land might have done just as well as the land in question. In the light of weapon development, such land might not be needed by the War Department much longer, if now. Of course, an answer was not forthcoming. It was on that point that I wrote to Sir Anthony Eden and in due course I had —not from him but from the War Office —a most unconvincing reply, which made it quite clear to me that the Department had never been consulted.
If I may hark back to the Crichel Down affair, hon. Members may not know that one of the more unfortunate results of that 467 affair was the abolition of a committee which had been established, I think, in 1948 under the rather ponderous title of. "The Inter-departmental Committee of Property Owning Departments"—a bad title for a very good committee whose chief function was to correlate the requirements of various Service Departments and to define those areas of land which were not needed any more and pass them on to other Departments which might need them. I understand that no such correlating committee exists now. Had it existed, I believe that some justification could have been produced at the Bradwell inquiry. There was, to my knowledge, at least one site in the vicinity of Bradwell which should have been considered, and which today is in an area which need not be used by the War Department. It is adjacent to the sea, and should have been considered.
My plea, therefore, is that the Government should reconsider Recommendation 75, the first sentence of which reads as follows:Officials of the Department of the deciding Minister should be required to give evidence if the enquiry is into a proposal initiated by that Minister, but not otherwise.Where does a nationalised industry come in? Could we have an explanation of that, because, whatever may be the constitutional set-up, most people will assume that a nationalised industry is an agency of a Ministry. Therefore, in the case which I have been quoting, this agency was not in the same position as an acquiring authority—the sort of authority which is referred to in Recommendation 71, where the intention is presumably to refer to authorities acquiring land for building development, and so forth.
Having made these criticisms and having particularised about one nationalised industry—the Central Electricity Authority—which, because of its nature, must lay itself open to this sort of thing and which has a function to fulfil which we do not want to disturb, I should be grateful if the Government would have another look at this particular recommendation.
§ 7.2 p.m.
§ Sir James Duncan (South Angus)
The hon. Member for Lichfield and Tam-worth (Mr. Snow) has drawn attention to a matter which is not dealt with in the Report. He referred to the attitude 468 which should be adopted in these matters by the Government in relation to the nationalised industries. We are grateful to the hon. Gentleman for bringing that point to our attention. I hope the Government will watch that point when eventually they introduce legislation in the next Session.
I wish to congratulate the Franks Committee on this magnificent Report, with its 95 recommendations. What has not been emphasised so far is the unanimity with which the Committee has submitted its recommendations. It is true that there were certain reservations by Lord Silkin on two points, but the bulk of the 95 recommendations were unanimous. When one remembers that on one side of the Committee there was my hon. Friend the Member for Salisbury (Mr. J. Morrison) and on the other side the hon. and learned Member for Paisley (Mr. D. Johnston), it seems to me a matter of some importance that this body, studying these questions for two years, should have been able to get together and produce something which we can all welcome and which has been unanimously agreed.
I like the views which the Committee took about the general principles that there should be openness, fairness and impartiality between the Government authorities and agents and the citizen. This attempt after all these years to redress the balance between the citizen and authority will, I am sure, be very fruitful if the Government, as they have said they will today, take the action that is required on the various sections of the Report.
I want to see the Minister dissociated from adjudicating functions altogether. I recognise, as does the second part of the Report, that the Minister, after making certain inquiries, has to make the decision; but as far as possible we want to dissociate the Minister from the adjudicating function. I refer particularly to the county agricultural executive committees, because I think this matter is important. This is a typical example of the way in which the Minister ought to be dissociated from adjudication either through himself or through his agents, which are the executive committees.
It seems to me that the principles laid down in the Franks Report are quite right, but I should like to support my hon. Friend the Member for Warwick 469 and Leamington (Mr. John Hobson) in urging the Government to think again about implementing them. My hon. Friend said that the agricultural executive committees' adjudicating powers should be removed, and I think all, or most of us, are agreed about that; but the Franks Report rather seems to recommend that there should be a lower tier type of agricultural land tribunal, with a right of appeal to the agricultural land tribunal itself, with a further right of appeal, on points of law, presumably, to the courts.
My hon. Friend made the suggestion that there should not be a lower and a higher tier, but only one. I am now talking only about England and Wales. I think I am right in saying that in England and Wales at present there are eight agricultural lands tribunals. It may be necessary to extend them, but to have one tier of agricultural land tribunal alone should be sufficient.
I think the right hon. and learned Member for Newport (Sir F. Soskice) made the same point that there should be only one tier of tribunals to which these cases could go, in replacement of the adjudicating function of the agricultural executive committee, with an appeal from this tribunal to a higher court of law. It seems to me that that suggestion would be a very much better way of dealing with the matter than to have a series of tribunals eventually arriving on points of law at the Court of Appeal.
Speaking now as a Scottish Member, I suggest that a Scottish point arises here. I understand that we are to get rid of the adjudicating function of the agricultural executive committees in Scotland also, and that new tribunals will be set up. I agree with that and I think it is right, but in these cases the right of appeal lies to the Scottish Lands Court. I am not certain—and here I am thinking aloud—that in that case, with a fairly large extension of the work of the Scottish Lands Court, it is manned sufficiently strongly at the moment to carry that additional load.
The Scottish Lands Court, I think, consists of one legal chairman and four or five lay members. If it is to have a great deal more to do, it seems to me that the legal side of the Court will have to be strengthened. I hope that the hon. and learned Member for Paisley does not think that I am referring to personalities. 470 I am not; I am talking purely of the theory.
I should like the Scottish Office, when bringing in new legislation, either separately or as part of a United Kingdom Bill to deal with this point, to bear in mind that the extra load on the Scottish Lands Court may mean more than it should carry. It has to do all or a great deal of the work in the Highlands area, and it devolves some of this work on the purely lay members under the present system. Now, we are to give the Court more work to do, and I think it should be strengthened, particularly on its legal side.
I have promised to be brief. I welcome paragraphs 71 to 76. This procedure will be a great advantage to farmers and landowners; the new procedure should be laid down quite clearly so that the man who is faced with the possible acquisition of his land knows the case which he has to meet, has an opportunity of leading evidence and is given a fair hearing.
I echo what was said by my hon. Friend the Member for Salisbury that much of this trouble in the past has arisen from the fact that market value has not been given in compensation, and I hope that the Government will reconsider their decision not to take that step. Even if they do not, the Report will make much difference to these cases where land is being taken for local authority or national purposes, always against the wishes of the owner. He does not want to be disturbed; he wants to be left in peace. I submit that at any rate he is entitled to a fair hearing, and up to now it has been quite clear that he has not always had it.
I wish my right hon. Friend the Home Secretary had gone as far as that in respect of the Services, because recommendation 87 is quite clear on the point. It seems to me that it ought to be workable. It reads:Save in time of emergency or threat of emergency or in special security cases the Service Departments should be required to adopt the same procedure for acquiring land as other Departments.My right hon. Friend did not go as far as that. I hope he will reconsider this matter and go as far as that. I agree that in certain cases there are special considerations, but the Service Departments are just as had at grabbing land as anybody else and I think that in peace-time they ought to be put in the straitjacket in the same way as any other person.
§ 7.12 p.m.
§ Mr. William Wells (Walsall, North)
I think that the reasons the Home Secretary gave for exempting the Service Departments from the full rigour, so to speak, of the Franks Committee's recommendations were adequate, and I think that the hon. and gallant Member for South Angus (Sir J. Duncan), as a Scots Member, will understand why I, a mere Englishman, have not the temerity to follow him in his criticism of the Scottish Land Court.
I was left in some doubt when the hon. Member was dealing with the agricultural courts in England and Wales. It seemed to me that his hon. and learned Friend the Member for Warwick and Learning-ton (Mr. John Hobson) had made a rather self-destroying argument. He said that he agreed that the adjudicating functions should be taken away from the county executive committees, and I think he was quite right when he expressed that; the Franks Committee refers rather to taking away adjudicating functions from those committees than to constituting a new court of appeal. The hon. and learned Member for Warwick and Leamington then went on to criticise the long delay which ensued before it was possible to take a case to the agricultural land tribunal, and said how stale the cases were when they went to appeal.
§ Mr. Wells
If we have more of them we must to some extent reduce the quality. Surely, given the need for an expert appeals tribunal, which is in line with the whole of the recommendations of the Franks Committee, it is better to do as the Committee suggests and have a national tribunal dealing with matters of appeal and have local tribunals, the members of which are able to go and see the land at the time the complaint is made and deal with the matter while it is fresh, to sit as the court of first instance. I do not propose to pursue the agricultural argument any further.
It would be presumptuous of me to say any more than has already been said in praise of the Franks Committee and its work, but there is one matter in relation to the Report which is a little saddening. I and the hon. Member for Putney (Sir H. Linstead) have been engaged for a considerable time on another report for 472 which the Home Secretary is responsible, which concerns the question of homosexual offences and prostitution. The Franks Report describes very clearly the impact of the subject matter with which it deals on the population of this country. Paragraph 18 of the Franks Report reads:The general impact of decisions by tribunals and Ministers on the public today is illustrated by the fact that Rent Tribunals have in some recent years dealt with as many as 15,000 cases and that the annual number of planning appeals is about 6,000. Although the number of cases heard by National Insurance and Industrial Injuries Local Tribunals (50,000 to 60,000 annually) is smaller than the number of unemployment insurance cases heard in the years just before the war, the scheme is now on a wider basis and potentially affects nearly everyone.Following the publication of the Wolfenden Report, the members of the Wolfenden Committee, including myself, received invitations to appear on television and were pursued with inquiries from the Press. Sir John Wolfenden has been asked to address a meeting at Cambridge. I addressed a meeting at Oxford last week-end, and I have been invited to attend a debate in Liverpool University at the end of November and to address an Institute of Insurers in December on the subject matter of the Report.
The News Chronicle published a Gallup Poll only a few days after the publication of the Report, and an astonishingly high proportion of the people who were interviewed knew, broadly speaking, what is the subject matter of the Wolfenden Report. Sir John Wolfenden himself, as he well deserves to be, though not for the same reason, is almost as well known to the British public as Mr. Elvis Presley.
The sad thing about all this is that when we deal with the Wolfenden Report in the House, as we shall before long, our discussions will be conducted before an educated and instructed democracy; whereas this evening I feel very sad to say that we are not conducting our discussions on this even more important matter, affecting much more intimately much wider strata of the population than the Wolfenden Report, before an educated democracy. I hazard a guess that the most cursory references to this debate will be made over the B.B.C., that probably no other broadcast commentary will be made at all, and that the report of today's debate in tomorrow's newspapers will be of a very limited character.
473 That is not the fault of the Government, it is not the fault of Parliament, and although I have one or two criticisms of what the Government are doing in this matter, I think that, in the essentials, they have done what they ought to have done.
The Government have stated quite frankly and freely that they accept the principles of this Report. I would like them to be able to go further and give themselves a time limit in which to bring in a programme definitely introducing those changes which they intend to make; but, at any rate, so far so good.
I think that the Government are exposed to the much more serious criticism—voiced from this side of the House by my hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas), amongst others, and from the other side by the right hon. and learned Gentleman the Member for Chertsey (Sir L. Heald)—that the terms of reference on which the Franks Committee operated precluded it from considering the wider question of the relationship of the administration to the citizen, with which such public interest as there has been in the Franks Committee is really concerned. In this debate we have not been able much to discuss, because we have no material from the Report on which to discuss it properly—because of the Committee's terms of reference—the exercise of Ministerial discretion.
Hon. Members may have read articles by Professor Mitrany in the Manchester Guardian, published shortly after the publication of the Report, in which the Professor referred to the methods adopted in Sweden to ensure that the Administration acts fairly and properly in relation to matters affecting individuals. He pointed out that in that country a very high-level official—the High Commissioner for Justice—has a roving commission, with his staff, through the transactions of every department in the State. Were an innovation of that kind applicable at all in this country—and whether it would be suitable or compatible with our ideas of Parliamentary control—is a matter of question, and a question, unfortunately, that we cannot discuss now because the terms of reference of the Committee precluded it. Looking at the subject as a whole, we 474 are, as one hon. Member has said, really at the beginning of the inquiry and not at the end of it.
There are one or two matters of relative detail on which I should like to comment and about which I should like to ask one or two questions. I do not disagree very much with the recommendations that the Government have adopted, adapted and modified in relation to inspectors and their reports. I think that there is quite a lot to be said for making an exception of the Ministry of Housing and Local Government and letting the inspectors in that Department remain to be appointed by the Minister.
More important than the formal recommendations in this sphere is that the inspectors themselves—of whom, in general, no criticism is, I think, to be made—should enjoy a higher status in their Department—whichever Department it is. It may be that they will not achieve that position whilst they are within the Department, but one of the sad facts that the Committee brought out, not at all incomprehensible, is that the Administration at so many levels does not understand the nature of a judicial inquiry and, in consequence, that many of the complaints that have given rise to the' setting up of the Committee have ensued simply from the fact that the Executive and its devoted servants have not given sufficient weight to the claims of the individual.
There are two points in particular about which I should like to ask questions. First, I did not hear the Home Secretary, when dealing with the recommendations that he had accepted, deal with No. 91, namely, that there should be an appeal from the Minister on a question of law on what constitutes "development." That is, indeed, a startling innovation, because to have an appeal on a matter of law from the Minister himself, although I think probably perfectly proper, seems to me to be such a novelty as to deserve specific mention as to whether or not it is being adopted.
Another thing that I think is more important than may appear is what the Government intend in relation to those who are to be clerks to tribunals. The Committee heard considerable evidence and argument as to whether the clerks of tribunals should be appointed ad hoc or whether there should be a corps of clerks. In the end, the Committee came 475 to the conclusion that, on the whole, it was better not to have a corps of clerks but to have clerks appointed ad hoc. It seems to me that, prima facie, the clerks, if they were an organised body or corps, could serve a most useful function in acting as a link between the tribunals and the Council which the Lord Chancellor will appoint.
The ground on which objections was taken to a corps of clerks seemed to be singularly thin. It was said, in effect, that there would not be sufficient prospect of promotion to attract the right sort of clerk. I should have thought that was not a very strong argument at all; that, in the first place, if it were true that there would not be much prospect of promotion, the device of seconding clerks from Government Departments could be adopted. I should have thought that it would have been a most valuable experience for an administrative official to have spent a certain amount of time as clerk to a tribunal. But I would very much question whether, given the hierarchy of tribunals which we are to have, there will not, in fact, be perfectly adequate prospects of promotion for a good clerk.
I apologise for the time I have taken. It has emerged from the debate that a very large measure of support exists in this House for the recommendations of the Committee. I merely express the hope that, in some way, the interest which we in this House feel may spread to the country and that the country will take the measure of a problem which so deeply concerns every person who may ever be entitled to any kind of National Insurance benefit.
§ 7.30 p.m.
§ Mr. W. R. Rees-Davies (Isle of Thanet)
I am particularly happy to follow the hon. and learned Member for Walsall, North (Mr. W. Wells), because he began by taking a point which I took when speaking on this subject at my own party conference, in Brighton. I only hope that he enjoys a little more reporting tomorrow morning than I or any of my friends did on that occasion. Perhaps I might just say that the Labour Party, at its conference in Brighton, did not discuss this subject. It was given high priority by the Conservative Party, being the subject of the first motion for Friday 476 afternoon, discussion to be opened by the Home Secretary.
§ Mr. A. Fenner Brockway (Eton and Slough)
Does the hon. Gentleman realise that he is a little out of date? We are so much ahead of the party opposite that we discussed the matter a year ago.
§ Mr. Rees-Davies
I appreciate that a year ago the Labour Party discussed a matter which Professor Robson, that eminent Socialist lawyer, described as having very little relevance to the circumstances of the case. If I may say so, the hon. Gentleman and his friends did not discuss the Report of the Franks Committee, which was published only in July of this year, and, therefore, could hardly have been discussed twelve months ago by the Labour Party.
As a result of this subject having high priority, one would have thought that some of the leading newspapers of the country might have paid a little attention to the subject matter of the debate which took place, at least, at the Tory conference. Nevertheless, despite the fact that some newspapers devote much space—the Sunday Express, in particular, devoting one whole column to it every Sunday, to the very important question of the liberty of the subject, very properly, if I may say so, and producing a great many examples of administrative injustice which take place—not one single word devoted to the basic arguments which lie behind this subject was to be found in the main national newspapers of the day.
Today, as one would expect, there is a first-class leader on the subject in The Times. Not one word do we find in the popular Press, for, unfortunately, unlike the sexual pleasures which form the subject of the Wolfenden Report, the subject we are debating has no "human story" in it which is really worth selling to the public in these days of competitive television and B.B.C. broadcasting. What is worse is that there has, as yet, been no opportunity on any television or radio broadcasting system to give due attention to what is really the most important of subjects, namely, the liberty of the individual and his position as citizen vis-à-vis the State. There has, as yet, been hardly anybody inside or outside the House who has really criticised and censured the 477 Press, as I feel we should do, for the attitude it has adopted in this matter.
Let us consider what is the basic point lying behind the whole question. All government today is ruled by committee, by inquiry and by tribunal. There was an extremely able article, which some may have read, by my hon. Friend the Member for Ashford (Mr. Deedes), in the Daily Telegraph about a month ago, in which he drew attention to the proliferation of trade unions, trade associations, committees, councils, conferences and all the other paraphernalia of the modern State. Indeed, one can nowadays hardly express a personal view unless one is Sir John Wolfenden or Sir Oliver Franks, having one's committee behind one and the whole chariot of the modern State in one's support, or one is Mr. Cousins with 5 million votes to be put on the table. The individual is no one otherwise.
Fundamentally, the country does not like this situation very much. People are becoming a little "fed up" with the absence of individual rights. What they want to see is somebody who can determine a method by which there shall be a proper balance between the rights of the individual and the power of the State. The astonishing feature is that the man who expressed this best was none other than the very well-known Labour leader, Professor Harold Laski. In the Conservative Party's book to which reference has been made, The Rule of Law—I think the author of this particular paragraph was my hon. and learned Friend the Joint Under-Secretary of State for the Home Department—it is said:We see no logical reason for limiting the rules of natural justice to those cases where a dispute is already in existence before the decision is arrived at. We are fortified in this view by the opinion of the late Professor H. J. Laski, a constitutionalist by no means jealous of executive powers and himself a member of the Donoughmore Committee, who said:Executive discretion is an impossible rule unless it is conceived in terms of judicial standards.'We would not ourselves care to state the principle more narrowly.I am happy to say that a number of us took that view. It is a view which lies at the heart of things, and I should like to repeat it. Professor Laski said thatExecutive discretion is an impossible rule unless it is conceived in terms of judicial standards.478 I believe that that meets the fundamental difficulty, for at the basis of all administration there must be some known set of principles based upon these judicial standards, whether they are decisions between citizen and State or proceedings within inquiries or tribunals.
The Franks Report, together with the Donoughmore Report, is, I believe, by far the most important document to appear in recent times in this country, and it is the more remarkable because it is all-party, layman as well as lawyer, civil servant as well as lawyer, the Committee being unanimous in its view. The really great importance of it is that it is laying down the future basis of our administration, although its particular terms of reference were limited.
The Committee itself stated the basis, namely, that two fundamental notions lie at the root of the problem. First, what is judicial, the antithesis of that being what is administrative. Secondly, what is according to the rule of law, the antithesis being what is arbitrary.
The rule of law upholds the view that decisions must be made in accordance with a known set of principles which are predictable. An arbitrary decision is one which is made without principle, without rules, and unpredictable. The Civil Service view, in substance, as put before the Franks Committee, was that, in the main, these tribunals and inquiries are purely administrative and not in any sense judicial.
That approach was rejected by the Franks Committee, which expressed the belief that Parliament intended decisions to be predictable, in accordance with a set of rules, and that, in any event, such decisions are an adjudication. As was said rightly by The Times this morning, it is for this House to say quite firmly whether the process is an adjudication or not I have no doubt that the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) was quite right on the point. It is an adjudication, not just an administrative process, when one sets up an inquiry or tribunal.
There is, however, a much more important question which, so far, has not been touched on today, largely because it is not really within the four corners of this Report. It is what we are going on to do. The next stage in this battle is this. The standard which one lays down where 479 there is a decision to be adjudicated will be no less a standard than the standard which we will expect from the Administration where there is no inquiry and no tribunal. It is quite simple.
It comes down to this. There must be laid down a known set of principles of the rules of natural justice. Certain of those rules are applicable only where there is an inquiry or where there is a decision to be made. There are, however, three rules which can be applied to every decision taken between a citizen and the State, whether there is an inquiry or not.
Those three rules are, briefly, as follow. Where any decision has to be taken in which the rights of the citizen are affected by the decision of the State, it is the duty of the State, first, to consult with the citizen; secondly, to give an opportunity for a fair presentation of the facts; and, thirdly, to state openly the reasons for that decision if required to do so. The hon. and learned Member for Northampton (Mr. Paget) would have none of that. His speech—I know that he did not intend it—was pure dictatorship.
In the case of Crichel Down, or when any other decision has to be taken, when a person goes to the local office to inquire whether he can put up a garage, or whether there is to be compensation for the take-over of his land, irrespective of whether there is an inquiry, there is no reason why there should not be consultation. He must have an opportunity to talk it over. There is no reason why he and, indeed, the individual who happens to be the civil servant should not be able to express their views openly and accurately. That is what was wrong with the case of Crichel Down. There is no reason why the decision should not be given openly and publicly in any event.
What I am saying is that it seems to me that the newspapers—and the Press is important in this matter—have failed the public and that the whole of the country outside is not willing to grasp what is the purport of the discussion here today: that we are seeking, through the assistance of the Government and of this remarkably fine Report, to create something which is really worth while for the country. No doubt the hon. and learned Member for Walsall, North (Mr. Wells) was entitled to something otherwise when he was sitting on the Wolfenden Committee, but 480 he would be the first to agree that matters like that are of really small importance compared with the liberty of the individual and the subject.
My interest in this matter dates from a particular moment. In 1948, I had the privilege to be concerned with the new towns cases at Stevenage and Crawley. It was in the course of those cases that none other than the right hon. and learned Member for St. Helens (Sir H. Shawcross) came out with a remark which shocked me profoundly, when he said that it was simply an opportunity for the objectors to raise objections and nothing else.
The right hon. and learned Member was, however, quite right. He was perfectly justified in saying that in accordance with the law. One would expect him to be right, and he was. It was, to my mind, the appalling obliteration of the standards of the rules of natural justice at that time that started me off on this course, and it was in 1951 that Mr. Ashe Lincoln and myself and a committee first sat to consider the question of administrative tribunals and to offer the first report to the Conservative Party. It was following that that my hon. and learned Friend the Joint Under-Secretary led his team, in turn with my right hon. and learned Friend the Member for Kensington, South (Sir P. Spens), into the pamphlet "The Rule of Law", and it was that part of the Conservative Party's programme, in its 1955 Election manifesto, which led to the setting up of the Franks Committee.
What is so nice to think is that it is that Committee, wholly independent in its views and having seen the whole picture, who realised that here was a subject which really can cut across party philosophy; for although in the background this is true party philosophy of the Conservative Party, none the less it is my belief that the great majority of the Labour Party can join in and say, "Here is something in which we equally and sincerely can believe" and that any question of whether one gives the lead or not will not be important fifty years from now.
If only one can make the country forget sex and fights over whether the Archbishop is right or wrong over religion, if people can be made to wake 481 up and realise that this busines is something which affects the lives of the people deeply, and if the Press can get a little more responsibility into it and report matters which are news instead of gossip, this debate and the future may be worth something to our country.
§ 7.47 p.m.
§ Mr. David Weitzman (Stoke Newington and Hackney, North)
The hon. Member for the Isle of Tranet (Mr. Rees-Davies) said something about the Labour Party joining in. I believe that what we are discussing today is a fundamental part of true Labour policy. There is, therefore, no question whatever of Labour joining in.
The unfortunate part of a debate of this kind is that the same views are expressed again and again, and one cannot help that happening. I should have been reluctant to join in at this late hour were it not for the fact that the Home Secretary asked us to try to proffer our own views on this matter. Therefore, although there may be repetition, particularly in view of the fact—this criticism is very justified—that the Press has given so little publicity to what is so very important and grave a matter, it is important that we should express our views upon it as strongly as we can.
We have had an excellent Report on a most important subject. The administration of justice in this country is second to none. It is built up on the recognition of the fact that justice is not only done but is seen to be done. I know that there has been a good deal of criticism of lawyers and courts, a good deal of it coming from this side of the House. I would have taken the view that, wherever it is possible, administration by the courts was the best possible system. Quite obviously, however, the work of tribunals could not be vested in the ordinary courts of judicature. From the practical point of view, it would throw such a burden of work upon the courts that they could not be carried on; and it is, of course, true that there are amongst many tribunals important characteristics which are not found in the courts: cheapness, informality, expert knowledge on particular subjects and matters of that kind. That view was very well expressed, as referred to in paragraph 39 of the Report, in the opinion of the Permanent Secretary to the Lord Chancellor.
482 With the growing activity of Governments and their responsibility in many fields—something that was unthought of in former years—the tendency is clearly for these tribunals to increase. They will, of course, continue to increase. It is therefore very important that three cardinal principles have been laid down with regard to them. I refer of course, to the principles that have been expressed—openness, fairness and impartiality—and I accept the fact that the application of these principles is an excellent basis on which to view the constitution of these tribunals and make recommendations as to their future.
It is obviously advisable, so far as possible, that there should be uniformity in order to achieve these three objectives, and, therefore, I join in pressing the recommendation for standing councils on tribunals. I think that recommendation is a very good one. I do not mind the Home Secretary having said that instead of having two he is going to have only one, so long as we have the idea accepted. Such a council, I gather, would keep the constitution and working of tribunals under continuous review. It would advise with regard to the appointment of new tribunals, it would formulate procedure on the lines of the Franks Report, and, I gather, although this is not accepted, the recommendation is that it would appoint members of the tribunals. I still feel that the Government ought to reconsider that matter and that the appointment of members ought to be made as recommended by the Franks Committee.
Again, in accordance with these principles, these requisites of openness, fairness and impartiality, as has already been pointed out, it is important that every citizen should know his rights. He should know the case that he has to meet. For example, as proposed in the Report, the acquiring or planning authority should, in my view, provide a written statement with full particulars, and, if possible—I do not think this has been referred to—as suggested in the Report, a statement of policy applicable to the case. It is of great importance that the case should be proved by the evidence of witnesses.
I am attracted by the recommendation that the hearing should be in public unless there is some very grave reason for holding it in private. I apprehend that reasons for holding it in private might well be those set out in the Report, 483 the discussion of intimate relations, financial matters, or where one's professional conduct is involved. I would repeat the point made by my right hon. and learned Friend the Member for Newport (Sir F. Soskice) with regard to National Health Service tribunals and the appeal from them.
I would, quite shortly, point out that if one looks at paragraph 203, which is the paragraph in the Report dealing with the question of appeals from National Health Service tribunals, and one contrasts that with paragraph 207, there does appear to be some contradiction, and I should like to have it made clear whether the suggestion is that the appeal to be held in public is an appeal limited to a case where the punishment is the removal of the medical practitioner from the list. If it is anything else, I think that it would be a bad thing to hold it in public. In a case, however, involving removal from the Medical List, it might well be held in public.
I have noted the reservations made in the Report by Lord Silkin. Frankly, I do not agree with those reservations. I think myself, although the Government do not adopt this idea, that inspectors ought to be under the control of the Lord Chancellor, as indicated in the Report. Apparently, some compromise is being put forward. It is suggested that they be appointed by the Minister after consulting the Lord Chancellor. As has been pointed out by my right hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas), that really means nothing. Obviously, that consultation could, in practice, mean nothing.
On the other hand, as the Report says in paragraph 303, it is the appearance which counts in this case. It is exceedingly important that the atmosphere of impartiality should be as pronounced as possible. If we get inspectors appointed by the Lord Chancellor, then we do, at any rate, get the appearance of the atmosphere of impartiality, the public presented with the fact that the inspector who is dealing with the case is not attached to the very Department which has the matter in hand. After all, from a practical point of view, is there any reason why this should not be done? The inspector could be in touch with the appropriate Department and obtain any information with 484 regard to the matter. I hope that the Government will look at it again.
Turning to the other reservation made by Lord Silkin with which I do not agree, and where I agree strongly with the recommendation of the Committee, the matter is far more important. I think that it is a very valuable suggestion indeed that the inspector's report should be communicated to the parties by the Minister together with his decision, and that such reports should contain a summary of the evidence, the finding of the facts and the reasoning from those facts. I appreciate the criticism made on this matter by my right hon. and learned Friend the Member for Leicester, North-East. I listened with interest to the attempt he made to show that there was a division between the judicial capacity and the administrative capacity of the inquiry in respect of the functions of the inspector. Frankly, I cannot see why there is a difference.
I should have thought that, if an inspector is appointed to preside over an inquiry and make his report, he listens to the evidence, makes up his mind as to the facts, reports upon those facts, draws his inference from them and makes recommendations. I should have thought that that was a wholly judicial procedure, and I cannot for the life of me see why one should describe such procedure as partly judicial and partly administrative.
I can see no reason why there should be this criticism and an attempt to say, "Keep these inspectors' reports confidential." It is of the greatest importance that the parties to the case should know what the inspector has found. One remembers in connection with this the further recommendation that is made in the Report that the parties should have an opportunity of dealing with factual evidence, particularly that of experts which is obtained after the inquiry. Perhaps the most important matter in this connection is with regard to the decision of the Minister. I am glad to see that the Government have decided to accept the recommendation that, in giving that decision, the Minister shall give his reasons. It is clearly frustrating to a party to engage in the whole of the paraphernalia and machinery, call his witnesses and put forward his views and then have the matter decided against him 485 for some reason of which he has not the faintest idea. I therefore welcome the acceptance by the Government of this recommendation as a great advance in this matter.
I want to say a word about what I consider to be one of the most important points in the Report. Recommendation 16 deals with legal aid. I mention this particularly because I was most disappointed to hear the decision communicated by the Home Secretary that the Government had no intention of implementing it. The recommendation says:The official scheme of legal aid should be extended at once to tribunals which are formal and expensive and to final appellate tribunals. Any extension of the scheme to cover a wider range of proceedings in courts should be accompanied by an extension to other tribunals.Paragraph 89 is the relevant paragraph. It puts the recommendation in respect of legal aid in the strongest possible terms. It says:We have already drawn attention to the connection between legal representation and legal aid. The importance of access to the courts has been recognised by the enactment of the Legal Aid and Advice Act, 1949, and arrangements for the provision of legal aid have recently been extended to the County Courts. This in itself provides a strong argument for extending legal aid to tribunals, particularly since some tribunals have a status equal to that of the County Courts and involve greater legal costs.It represents a very great hardship to parties that the Government should announce their decision, which means that the benefit of the legal aid scheme is given to litigants in the high court and the county court, but is not to be given to parties engaged in an inquiry before a tribunal.
Before I leave the subject, I should like the Attorney-General to look at paragraph 70, on the basis of which I have a very real complaint. I have on a number of occasions in the House raised the subject of advice under the Legal Aid and Advice Act. The implementation of the Section dealing with advice is long overdue. I draw attention to the important words in paragraph 70:The provisions of the Legal Aid and Advice Act, 1949, relating to legal advice, as distinct from legal aid, have not vet been brought into effect. On balance we do not feel able to recommend that an official scheme of legal advice should be introduced for tribunals only, that is to say piecemeal, but there is evidence that the absence of such a scheme causes difficulty and hardship in some cases 486 and we draw attention to the desirability of its general introduction at the earliest possible date.I know that recently there has been criticism—I believe there was some today in one of the evening papers—in relation to the legal aid system. I have no doubt that considerable criticism can be expressed upon individual cases and of money being ill-spent, but there is not the slightest doubt that the legal aid scheme has conferred tremendous benefits on the country and is of very great assistance in thousands of cases. I suggest that if legal advice could be made available to possible litigants a great deal of money might be saved.
I hope the Government will look at the matter again, first from the point of view of providing legal aid for parties appearing before the tribunals, and secondly, and still more important, from the point of view of introducing some legal advice scheme as provided for under the Act. I regard that matter as one of the most important among the questions that we are discussing today.
The Report is a well-thought-out document with many valuable sugeestions. It reflects very great credit on the Committee. No doubt there is room for detailed criticism on a number of points, but I hope that, broadly speaking, the recommendations will be implemented in the near future. I am very glad to hear the views expressed by the Government, and I hope there will be no delay in making them effective.
§ 8.5 p.m.
§ Mr. Bryant Godman Irvine (Rye)
It is not often that I have the opportunity of following the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) and finding myself in such complete accord with a good deal of what he has said.
We have today had a friendly debate on the subject of 95 recommendations put forward by a very able Committee. I want for a moment to deal with two matters referred to by two hon. Members which are really outside the Report, but are mentioned at the and of it.
The first is mentioned by my right hon. and learned Friend the Member for Chertsey (Sir L. Heald), the importance of compensation in matters of the acquisition of land. It does not matter how much we discuss the ways in which 487 we can improve the machinery for acquiring land if at the end we find that the person whose land has gone is dissatisfied with the basis on which his compensation is calculated.
The other matter is the importance of officials being trained in the principle that the individual has the right to enjoy his property without interference. I am sure that if the original approach is made in a courteous and helpful manner, and if the sort of thing referred to by the hon. Member for Lichfield and Tam-worth (Mr. Snow) is not repeated, there would be much more possibility of these tribunals not being required and of a settlement being reached by discussion and mutual agreement.
I have had correspondence with a number of people in my constituency who are interested in business, and it seems to me that the following points emerging from the Report are the ones about which they feel most strongly. The first is that inspectors dealing with cases should be put under the jurisdiction of the Lord Chancellor. The second is that a local planning authority should be required to make a full statement of its case before the appeal is heard. Many of us have had the difficulty of going into court and having to resist a case when we have not known exactly what were the facts against us. The third is that the inspector's report should be published.
I think it proper for me to mention that before being elected to this House I sat as chairman of an agricultural land tribunal. Some of the other things that I want to say relate to experience acquired in that capacity. When I looked at the paragraphs about agricultural land tribunals in the Report, I was naturally pleased to see that there was not very much about them and what there was was reasonably complimentary.
I noticed with considerable enthusiasm the proposals that there should be a Council on Tribunals. I wish to mention three things which will in due course be considered by the Council. First, it has been said that there will be a code of procedure. A number of hon. Members have made suggestions about what should be included in the code. The most important suggestion is that at the beginning of a case a statement of the case should 488 be made by the Ministry or the local authority in such a form that those on the other side know exactly what it is and what they have to meet.
I wondered whether it might be worth suggesting to the Council on tribunals that there should be something in the code about evidence being taken before tribunals. Anyone who has appeared before a tribunal which has a lay chairman and who has had a layman appearing against him will know of the difficulty which arises when the principles of evidence are not fully appreciated. I know that it is not possible to work that out in great detail, but I should have thought that a code of procedure could usefully have had a short paragraph explaining some of the major principles on which evidence ought to be accepted or rejected. It would be of considerable assistance in arriving at a reasonable conclusion.
Clerks are mentioned in paragraph 61 which says that the clerk's dutyshould be confined to secretarial work, the taking of such notes of evidence as may be required and the tendering of advice, when requested, on points connected with the tribunal's functions.The order setting out the rules of procedure on which any tribunal is based is a fairly lengthy document and provides plenty of scope for legal argument and legal talent. A lay secretary trying to administer that order, possibly when attacked by a solicitor who is very active on his client's behalf, is put in some difficulty and in that respect something is missing from the arrangements envisaged for the tribunal. I am not able to suggest an answer, but it may be possible to have a senior clerk on the staff of the Council on Tribunals to act as a sort of master in chambers for clerks to consult on points of procedure rather more difficult than those with which they, as laymen, would be able to deal.
Another point about procedure is the suggestion in paragraph 74 that inspection should take place only in the presence of both or all parties. I know that it is essential to have both parties present during the hearing, but I am unable to follow why it is necessary to have both parties present during an inspection. It is difficult for me to see how a tribunal, perhaps consisting of three people, trying to inspect some land could be assisted in its deliberations by 489 having two sets of parties, and their legal advisers, wandering around and buttonholing members of the tribunal and asking them to look at this or that. I should have thought that it would not be necessary to say that they should all be present on all occasions. There may surely be occasions when it might be beneficial not to have them present.
I want to refer for a moment to agricultural executive committees. I am sorry that the hon. and learned Member for Walsall, North (Mr. W. Wells) has left the Chamber. He was complaining that the case put by my hon. and learned Friend the Member for Warwick and Leamington (Mr. John Hobson) had destroyed itself because the suggestion that the judicial functions now carried out by the executive committees should be removed and given to the agricultural land tribunal would only lead to further delay. The hon. Member seemed to think that handing those functions over to the agricultural land tribunal would mean that things would get even worse.
The difficulty about the delay with the agricultural land tribunal is not the amount of work which is piling up, but the time it takes to get through the executive committee and other stages before the matter comes before the tribunal in accordance with the proper procedure. That criticism of my hon. and learned Friend's case did not seem to be valid.
The criticisms of agricultural executive committees set out in paragraph 147 of the Report seem to be based largely on a belief that the major work done by the A.E.C.s is connected with supervision orders and dispossession. I made some researches into what agricultural executive committees are entitled to do and what they do do. I found that there are 75 different functions which have been delegated to them at various times. I have no doubt that my right hon. and learned Friend the Attorney-General could expand that list considerably. The supervision and dispossession functions amounted to 19, and other matters, such as fixed equipment, notices to quit and so on, would account for 56.
Looking at paragraph 147 in the light of those figures especially in the case of notices to quit, I cannot follow why an independent decision could not be achieved by the present method. I am, however, prepared to accept the view that it is entirely desirable to divorce the 490 Minister from judicial considerations, and for that reason I support the proposal of my hon. and learned Friend the Member for Warwick and Leamington.
I am unable to see what a new court would contribute to the procedure. If a new court were set up, A.E.C. members would be called upon to act as a sort of prosecutor in that court and there might be some difficulty in persuading some of the members to do that with a great deal of enthusiasm. Another difficulty about the new court is that it is a big enough job to work on the panels available and to get a full tribunal for ordinary purposes. If in addition there are to be other panels and other courts, there may well be great practical difficulties ahead.
My last criticism of the new court is of the suggestion that the chairman must be wholly independent of the area. I am not aware that it is necessary for the chairman of the local bench, for example, to be wholly independent of his area, nor is it necessary for a judge of assize not to take the assizes in the county in which he happens to live. I cannot see why the chairman of the new court, if there is to be one, must be someone who lives outside the area.
Apart from those criticisms, my main reason for coming to the same conclusion as that reached by my hon. and learned Friend the Member for Warwick and Leamington is that it is most desirable to keep the Minister as far from these judicial proceedings as possible. For those reasons, that proposal will have my support.
I am pleased these matters have been discussed in such a friendly way today and that the Government have been able to come to such a quick conclusion and make such firm recommendations as on this occasion.
§ 8.20 p.m.
§ Mr. A. J. Irvine (Liverpool, Edge Hill)
I agree with the hon. Member for Rye (Mr. Godman Irvine) that it is very satisfactory that the Government have been able to find time so promptly to discuss this very important Report. It is also a very striking thing, and of great importance—whether or not it is widely reported in tomorrow's newspapers—that such a marked degree of agreement has been demonstrated in the debate. Hon. Members on both sides of the House seem to approach this matter in very similar frames of mind and with similar outlooks.
491 I have always thought that it was especially the responsibility of hon. Members on this side of the House to insist upon the necessity for a system of administrative inquiry which was manifestly fair and just in its method of procedure. To the extent that hon. Members on this side desire a greater degree of control exercised by the Administration and a greater rather than less intervention by the State in running the country, there is a very special importance for us in ensuring that the system of administrative procedure and inquiry, which is so important a part of State activity, shall be effective and fair. I have viewed the recommendations of the Report with that consideration in mind. What we want is that combination of fairness and efficiency which is easily practicable if reasonable procedures are adopted and pursued. I want to deal with Parts IV and V of the Report.
At planning appeals, and to some extent at compulsory acquisition inquiries, there is at present often some sense in the appellant or objector, as the case may be, that the deal he is getting is not absolutely fair and square. One has to be very careful in one's treatment of this subject, because there is a great deal about these proceedings which is very impressive. Great care is taken by the inspector; a great deal of consideration is shown to those appearing; there is nearly always an agreeably informal yet orderly, helpful and considerate atmosphere. One can, indeed, pay so many tributes to the way that the matter is handled that one may be asked, "Well, where is the criticism?" The criticism lies in the belief which a party will often entertain that, with all this considerateness, informality and courtesy, there may prove to be comparatively little relevance between the inquiry and the eventual decision.
That decision is to be made by the Minister. It will be made by him in secret. "I can have no confidence," says the appellant to himself, "that the evidence which has been heard at this inquiry will be the decisive factor. The Minister is to consult other Ministries before he writes his letter of decision; it may be the Ministry of Transport or the Ministry of Education, or some other. It is in these consultations that the 492 decision will be made." The citizen is thus inclined to feel that there is a kind of divorce between the impressive parade of fair treatment and inquiry, and the real decision made at the point, far from where the inquiry is held, where power lies.
If, as I believe, that is a fault of the existing procedure, the Committee's recommendations to cure it are very significant. If these recommendations are implemented I believe that it will result in the kind of objection that I have endeavoured to adumbrate ceasing to be applicable. First, there is the very important proposition that there shall be a written statement from the Minister both of policy and of the relevant facts.
That is an immense safeguard. To my mind, it is a most important reform. The main objection at present is that there is this feeling that the decision is taken in secret and upon material not available to the inquiry. If this recommendation is put into effect that criticism will cease to be valid. If it is effectively implemented by the Department—as we know it will be—the Minister's viewpoint will have been made clear on certain relevant matters before the inquiry. The whole investigation will start coming out into the open—and that is what we want.
That is not merely a good thing for the appellant and the parties at the inquiry; it is also a very good thing for Parliament. Parliament created these tribunals. Parliament has initiated this procedure and found it of admirable use in the public interest, and it is very important for Parliament, as well as for the parties interested in these inquiries, to be able to check, not unreasonably but none the less carefully, and not too often, but regularly, how these Departmental inquiries are faring, what degree of consistency there is between the decisions, what level of fairness is achieved and questions of that kind.
I suggest that this will all be much assisted by the written statement. I attach great importance to that, and I think it will be of considerable value. It may sometimes have the result, the rather unexpected result, that an appellant will discontinue his appeal. If this written statement becomes the practice, as one hopes that it will, it is quite possible that a Department will set out matters of fact and statements of policy arrived at 493 and approved by Parliament which, if implemented, would have the effect, inevitably in all logic, that the appeal would be bound to fail.
Although that may happen, and perhaps sometimes will, it is not necessarily a had thing. Far better to have a statement of policy which is conclusive against the appellant in the written statement, and let him discontinue when he has that statement, than that he should go forward into all the paraphernalia and pretence of an inquiry which is prejudged and serves no useful purpose but merely presents the surface and pretence of a process of adjudication.
There are key factors in this central matter of bringing the process of inquiry into the open. May I say, in parenthesis, that there is a great deal of detail in this Report which will need much consideration and study? I think it important that the House of Commons should not lose sight of the circumstances that in all this there are some key factors of central importance in coming to the heart of this problem of how to establish a system of tribunal or inquiry procedure which avoids the kind of disadvantages I suggested earlier.
The first key factor is the written statement which, in my judgment, is of great importance. The second is the fact of the publication of the inspector's report. If we have the written statement of the Minister's policy, where that is a relevant factor, and if, in addition, we have the relevant facts found, after weighing the evidence, by the inspector, the appellant or objector has the material, as also has Parliament, with which to determine whether, on a basis understood and set out and upon facts found there has been a reasonable and fair application by the Minister of a judicial mind to the resulting problem.
I feel bound to say that those of us who are concerned in this kind of thing have found a great variety of quality in Minister's letters of decision. One has seen letters of decision which have been almost abrupt in their treatment of the matter; which have not endeavoured to reason from any premises. There have been others where the greatest care has been taken, where the decision letter is a wel-constructed document arriving at a conclusion which earlier propositions supported. How well worth while is that 494 work, because it is so much more satisfactory for an objector or an appellant to see that the thing has been dealt with in a thorough and logical fashion. If it becomes mandatory, as we hope, not only for there to be a preliminary written statement from the Minister in appropriate cases, but also publication of the report with the relevant facts, I think that a considerable advance will be made.
Another key factor is, I suggest—and this is one of the few matters in which the Government's attitude has caused me any disappointment—to be found in the recommendation that the inspectors should be, as the phrase goes in the Report, "under the control of the Lord Chancellor." I am in favour of that recommendation. In saying that, I recognise the force of the argument the other way. None the less, it is of great importance that we should avoid the difficulty that the outlook of the inspector tends to be coloured by his Departmental experience and sympathies.
I have the greatest admiration—I say this very sincerely—for the corps' of inspectors, particularly in the Ministry of Housing and Local Government, whose work I have been privileged to observe. They are a most admirable and very fair body of men. Nevertheless, it is asking too much for them to shed Departmental prejudice entirely at an inquiry. It is part of the very marrow of their bones. Even if a paragon were found who could rid himself of the Departmental outlook, the procedure would still be open to the objection that the appellant, the citizen whose status in the matter we are seeking to safeguard and improve, would believe that the Department, through the inspector, was both judge and party in the dispute. That is how it would seem. A very great deal of difficulty arises from that impression.
The difficulty would be overcome if inspectors came under the control of the Lord Chancellor's Department. It would be much more than a nominal change. If the change were made now, no doubt the present inspectors would continue to act and the consequences of the alteration might not be felt noticeably at once; but in due course, as new men came up, making their applications to the Lord Chancellor's Department, and getting into the way of thinking as servants of that Department, the change would be felt. 495 And it would mean an improvement. In this way the movement into the open of these inquiries and procedures would be carried further to the great advantage of us all.
§ 8.38 p.m.
§ Mr. Charles Fletcher-Cooke (Darwen)
Like the hon. Member for Liverpool, Edge Hill (Mr. A. J. Irvine), my joy has been slightly marred by the refusal of the Government to adopt the recommendation relating to the inspectors. I appreciate the logic and force of what was said by the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas). Logically, he is absolutely right. The function of the inspectors is not only adjudication but more than that.
Nevertheless, that consideration must be outweighed by the fact that the people who go into an inquiry think, perhaps wrongly but absolutely firmly, that they are going into a court. It may be silly but the idea is there, and I do not believe anybody will disabuse their minds of that belief. So long as that is the case I prefer the point of view of the hon. Member for Edge Hill to that of the hon. and learned Member for Leicester, North-East.
This afternoon, my right hon. Friend the Home Secretary asked for the views of hon. Members on the recommendations relating to appeals. In the short time that we have left we ought to respond to that request.
It has been most interesting that everyone who has spoken from personal experience of different tribunals has urged the provision of appeals. I have in mind particularly the speech of the hon. Member for East Ham, North (Mr. Prentice) who spoke from great experience and urged the need for some tribunal of appeal in his field, if only to harmonise the differing decisions of tribunals. I think it nothing short of a scandal that so far there has been no sort of appeal from the rent tribunals. In paragraph 161 of the Report the Committee says that it received more criticism of those tribunals than of any others, and in paragraph 165 it says:In view of the financial importance of these decisions to the parties concerned and of the criticisms made of the existing arrangements, we think it essential that some form of appeal should be provided.496 I think anyone with any experience of rent tribunals realises that that is a "must". It is time for some unanimity to be provided over the adjudications of the rent tribunals. That can be done only by providing some sort of appeal from them.
It is good news that the mystical constitutional doctrine is no longer to impede the giving of evidence by one Government Department before a tribunal of another. It was said to be quite impossible constitutionally, but I am glad that that impossibility has disappeared overnight. I hope, however, that when the evidence is given it will not take the form, as so often happens, of some minor official being sent with a prepared statement already typed which is simply handed in. Then when the objector or whoever the opposite party is, tries to ask some questions about it, it is perfectly clear that the minor official is nothing more than a postman who knows nothing about the subject but has just come to hand in that bit of paper. I hope that will not be considered as giving evidence in any material sense, because this decision to adopt the recommendation will be set at nought if that is the way it is carried out in practice.
I would add my voice to the many we have heard today, and particularly to the voice of the Committee in paragraphs 10, 11 and 12 of the Report in which it emphasises that:Over most of the field of public administration no formal procedure is provided for objecting or deciding on objections.In other words, what we have been discussing today is really that small part of the iceberg which appears above the surface, while something like six times as much is totally submerged.
§ Mr. Fletcher-Cooke
I was thinking of Government decisions because that is what the Committee was considering. It mentioned:For example, where foreign currency or a scarce commodity…is rationed or allocated, there is no other body to which an individual applicant can appeal if the responsible administrative authority decides to allow him less than he has requested.I believe that in every other civilised country where there is exchange control 497 there is provision for an appeal to a tribunal, but here one gets the one word "no" from the Bank of England and that is the end of that. One does not even know whether the facts found by the tribunal have been rightly found. It may have made an elementary confusion of identity. The Department may have thought that the applicant was someone else, but there is no way of putting it right. It must be remembered that in the Crichel Down case, which was a case in this category, a great many mistakes of simple fact were made and were only exposed accidentally.
A lot of that must go on. I am not blaming civil servants because this goes on also in any business, but in most cases the facts can be put right when they are challenged in the courts in actions between private individuals. To anyone who has practised in courts it is quite obvious that people have been proceeding on a wrong basis until that is pointed out, but in this case we are faced by Government decision affecting the health, wealth and property of private citizens. The area below sea level is not seen at all except for the occasional word "no" or "yes" if one is very lucky. I ant quite sure there are a great many elementary mis-statements of fact which could be exposed if there were something in the shape of an appeal against such a decision to a body which would have the power to find the facts, if nothing else.
We must tell the Government that, though today has been a good day for them and for all of us, and we are most grateful, there is no limit to our appetite for freedom in this country. They must not think that because today they have given a good deal, we ought to go away satisfied for a long time. There can be no compromise on this matter, and we must warn them that we shall go on pressing for some sort of machinery to provide for the cases where at present there is no tribunal and no appeal.
I should like the Government to say to the members of the Franks Committee, "You have done a marvellous job, and that is recognised throughout. Is it too much to ask you to do what apparently you would have liked to have done, if we may judge from your Report, and go on to this further work?" No better body could be found to do it. Is it too much to ask the Government to resolve or at 498 least to consider that, and see if something of that kind cannot be made known to us in three-quarters of an hour's time?
§ 8.46 p.m.
§ Mr. A. Fenner Brockway (Eton and Slough)
We have had an extraordinary debate today. We have had speeches which have been dealing with constitutional principles and practice. We had a speech from my hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas), one from the hon. Member for the Isle of Thanet (Mr. Rees-Davies) and one from my hon. Friend the Member for Edge Hill (Mr. A. J. Irvine), which have discussed the deeper issues. We have also had a whole series of speeches dealing with concrete and practical issues, like that deeply moving speech from my hon. Friend the Member for East Ham, North (Mr. Prentice).
I should love to have engaged in these discussions of principle and of some of these wider questions, but in view of the time I will content myself with saying this on the issue of principle. I believe that the constitutional problem which we have to settle today is the relationship of individual liberty with the growing power of the State, and, because I believe this Report makes a contribution which will extend personal freedom, as a Socialist I welcome this Report.
We have had speeches during this debate from members of the Committee, but I want to contribute a speech from the unusual point of view of someone who was a witness to the Committee. The tribunals which this Report covers extend over nearly the whole sphere of our social life. They deal with land and property, with National Assistance and national health, with transport, with rents, and with many other things. They also deal with one sphere which is unique, where the tribunal does not have to decide a matter of fact, but has to decide an issue of mind and of spirit. These tribunals are the tribunals which decide whether an objector to military service is conscientious or not.
I gave evidence to this Committee as the Chairman of the Central Board for Conscientious Objectors in this country. I want to recognise at once the extraordinary courtesy, sympathy and understanding with which we were received. We gave evidence on a number of 499 matters. Every one of the points which we raised is dealt with in this Report and on every point specific recommendations are made. I want to acknowledge our great satisfaction at the way in which this Committee has met our proposals, although we represent a small minority in the community.
Some of these recommendations will require legislation—the arrangement for the appointment of tribunal members, the general oversight by the Council on tribunals, the question of legal aid and the right of appeal to the courts on points of law—but there are other recommendations which need not await legislation, and I am pressing on the Government tonight that the recommendations which can be applied by administration should be applied.
May I give one or two illustrations? There is the issue which we put in our evidence of the age of the tribunal members. The boys who come before the tribunals for conscientious objectors are 18; they are little more than adolescents. They are accustomed to leaders of youth clubs, they may be accustomed to the leaders of boy scouts, and they come before the tribunal to express themselves and their inner thoughts. One of the members of the tribunal who has to judge their consciences is 82 years of age. Two people who have died recently, while still chairmen of tribunals, were 83 years of age. They live in another generation from the boys of 18. There is hardly contact of mind with them. We have urged that if tribunals are to understand youth today, they must be of this generation. Justices of the peace are required to retire at 75 years of age. We are asking that members of tribunals shall be brought more into relationship with the age of these boys who are the applicants.
I am glad that the Committee agreed with us. These are its words:We have already recommended that the Council on Tribunals should give consideration to the question of age-limits for tribunal service and we consider it relevant to the particular case of Conscientious Objectors Tribunals that it has been thought desirable to introduce a special age-limit for justices sitting in juvenile courts.We have had a letter about this from the Minister of Labour and National Service, in which he says:Owing to the small membership of the tribunals, we could not, at present, impose a 500 general age-limit without losing an undue proportion of experienced members. We are, however, appointing several younger members, and intend to continue to lower the average age.My only comment is that if the general age limit cannot be reducedwithout losing an undue proportion of experienced membersit indicates that the age limit must be very high.
Several members of these tribunals have sat there since 1939—for eighteen years. We are urging the Government to go further than this letter from the Minister of Labour suggests, and to appoint to the tribunals, before which these adolescents appear, men of an age that can understand their point of view.
The next administrative recommendation that might be applied is that the location and atmosphere of the tribunals should be more sympathetic to the kind of issues heard. In Leeds, these matters of conscience are discussed in a law court. The members of the tribunal sit two tiers above the applicant. Until recently there were uniformed policemen in attendance —all the atmosphere of a trial.
A place in London that I know well is the Fulham Town Hall—a vast building. Again, the members sit well above the applicant, who is almost lost in the well of that hall. In such circumstances there cannot possibly be the kind of personal contact between the boy and the members of the tribunal that is necessary to reach the truth about the applicant's sincerity.
I am glad to say that, again, this Committee has met us on that point. Paragraph 218 of the Report says:Some Tribunals sit informally round a table in a fairly small room. Others occupy a court or other public building where seating arrangements introduce a formal atmosphere. Such differences are not justified, and we need only refer to our earlier general recommendation in Part II that for tribunals in general an informal is to be preferred to a formal setting.As for atmosphere, some of these tribunals have imposed the taking of the oath—again, an atmosphere in which it is quite impossible to get to the mind in this informal spirit-to-spirit contact which, alone, can get the truth of the position about conscience. Again, we are glad to find that the Committee accepts our view about the formal taking of the oath.
The Committee says that, while it is not prepared to rule out the oath 501 altogether, it considers that it should not normally be necessary for the tribunals to exercise that power. On this issue also, we ask the Government to apply the change by the method of administration.
The next point which I urge upon the Government is contained in the suggestion we made that the decisions of the appellate tribunals in test cases should be distributed to the local tribunals. We have an extraordinary situation now. If a conscientious objector goes to the local tribunal in London, he has no chance whatsoever of being regarded as a sincere conscientious objector unless he is an absolute pacifist and is opposed to war and violence in all circumstances. The local tribunal interprets the military service Acts in that way.
The man then passes to the appellate tribunal, which interprets the Statute entirely differently and says that a man to whom the matter is one of right or wrong in his personal conscience need not necessarily be opposed to all wars to be recognised as a conscientious objector. Thus we have a local tribunal and an appellate tribunal in the London area taking opposite views.
There is another illustration. Under the military service Acts, a man may be exempted entirely, he may be exempted conditionally, or he may be put into the Army in non-combatant service. The tribunals interpret these provisions in different ways. In Scotland, 18 per cent. of applicants are given total exemption. In London, only 0.6 per cent. of applicants are given total exemption. In Scotland, few are given exemption on the condition that they may do this or that form of work. In London, many are given such exemption.
The point which we put to the Committee, which the Committee has endorsed, is that some guidance ought to be given to local tribunals by circulating the decisions of the appellate tribunals. This used to be done. It was done in the First World War, and it has been done even under the present National Service Act. I have in my hand now copies of the decisions of the appellate tribunals distributed to local tribunals between 1940 and 1943; they are decisions in test cases. But the Government have stopped the practice and will not allow it to continue. I now ask the Government to apply the recommendation of the 502 Committee in this respect by the method of administration and not to wait for legislation.
Those are the particular points I wished to bring to the notice of the Government. I make no apology at all for raising these issues, because I believe that, in the long run, a nation will more than by anything else be judged by how it treats the claims of conscience, how it treats a man's sense of right or wrong, and how it treats individual personality in these things. If we can develop a system in our tribunals which can meet the extraordinarily difficult problem of judgment in these spheres, we shall have gone very far indeed towards meeting the problem of the liberty of the individual and his relationship with society.
§ 9.0 p.m.
§ Mr. James Griffiths (Llanelly)
We have had a very interesting, very valuable and, on the whole, harmonious debate. Having listened to it, it seems to me that we are reaching out towards a House of Commons decision upon the Franks Report and its recommendations. That is something to be desired and something for which to be grateful.
I find myself in the unusual position of having to congratulate the Government, first, upon providing the opportunity for this debate, and, even more, upon the speed with which they have arrived at their conclusions. I hope this is really the turning over of a new leaf. Perhaps the Attorney-General knows—if not, his colleagues know—that there are other Reports lying about the Table which were produced long before the Franks Report. I am thinking of one in particular, a Report called the Gowers Report.
If I remember correctly, the Government, as they have done today, accepted the recommendations of that Report. They proceeded to implement part of it. They began to implement a second part of it and produced a Bill in another place—the Shops Bill. That Bill, too, is about here somewhere. Then, somebody got very angry with the Government in the 1922 Committee, if that is what it is still called, and they ran away from it. I hope that this speedy decision to implement with reservations the recommendations of the Franks Committee is, in fact, the turning over of a new leaf and that when we come back next week we shall find it announced 503 that Her Majesty's Government, in the Session which we shall then begin, propose to put before the House and to carry through very quickly the Shops Bill which they abandoned in the last Session.
In intervening in this debate, in which we have had valuable speeches from right hon. and hon. Members with varying experience, both legal men and lay men, I ought perhaps to say why I have any right to speak at all in this matter. First, it so happens that for many years it was my duty as a trade union officer to appear for my members before one of the tribunals which in many ways set the pattern for the tribunals which we have since established in the sphere of social insurance. That was the old court of referees, under the Ministry of Labour. I was also privileged for a period to serve as one of the lay members on the court of referees. That experience was a valuable one, and I hope that it entitles me to look at this problem today with some experience.
There is one thing that I would say about this from the experience of the court of referees. I entirely endorse the view of the Franks Committee that tribunals must be looked at not as a part of administration, but as bodies to adjudicate. It is important, therefore, that no Government shall give to these tribunals matters to decide which they cannot adjudicate except by subjective considerations.
Let me give an experience. It is important for us to remember it and it may be related to something that my hon. and learned Friend the Member for Northampton (Mr. Paget) had in mind. I am not an agriculturist, but I have grave doubts as to whether questions of whether the farmer was a good farmer or farmed his land badly or well should be adjudicated in that way.
This was my experience. It is not a party matter, but history. When we began the courts of referees to adjudicate in unemployment insurance, we began with objective criteria laid down in the unemployment insurance legislation. Then, on the pretext or excuse, or for the reason—it does not matter which—that the Fund was running into difficulties, the Government of the day decided that the courts of referees should decide, not whether the man was unemployed because there was no work available for him or because the 504 Ministry of Labour could not provide a job for him, but should decide in each individual case whether the man was or was not genuinely seeking work. It nearly wrecked the courts of referees. Let me admit quite frankly that it became a farce.
I had sat on these courts of referees for some years, and I think everyone will agree that we gave the courts of referees a job which we should never have given to them. It led to all kinds of practices. It is history now, and we can joke about it sometimes, but let me say that it is something that I shall never joke about and never forget, and I find it very difficult to forgive.
I remember that an unemployed miner would go before a court of referees and the chairman would ask him whether he had looked for work yesterday, the day before and last week, and where he was going the next day. The fellow had to sit down and do his homework the night before, preparing a list to give to him. It became a farce.
It is very important that we should not give to any of these tribunals, if we are to regard them, treat them and maintain them as bodies of adjudication on problems of that kind, the power to decide matters on which there is no criterion by which any body of men can actually come to a judicial decision. That is one experience.
The second experience was when I was Minister of National Insurance. It was my privilege and honour to promote legislation and, indeed, to establish tribunals as a system of adjudication under the National Insurance Acts. The most important of these—and it was a very great departure from tradition and previous practice—was under the Industrial Injuries Act. We changed the whole system of providing for men and women who were disabled by accident or disease. We transferred it into a social service, and we decided, partly for that reason and partly for other reasons, that adjudication in cases under the Industrial Injuries Act should henceforth be determined by tribunals very largely in the manner—adapted and renamed—as laid down as a pattern by the courts of referees. That was nearly ten years ago.
I have been greatly encouraged by the fact that in the Franks Committee Report the tribunals established under the 505 National Insurance Acts came out very favourably. Indeed, it is very interesting that, so far as I know, there is no representative body of men anywhere, neither the T.U.C. nor the workers, nor anyone in this country, which suggests that adjudication in industrial injuries cases should revert to the courts, except with one reservation to which I will return in a moment. I come, therefore, to this matter with that experience.
What the Franks Committee tells us is that in its view the system of tribunals has justified itself, that tribunals, as a system of adjudication, have come to stay and that they are likely to increase. Therefore, it is important that all of us who are concerned with this problem should face it in the setting that we are to have the present tribunals and a larger number of tribunals. I attach the greatest importance to the proposals that have been made and to which the Lord Privy Seal referred, and about which I want to ask some questions.
Since these tribunals have come to stay and are likely to increase, the Committee has, for that reason, suggested that there should be set up two standing councils and that these councils should be given certain functions, keeping the tribunals under review and doing other things. That is a most important point. It is a body outside Parliament. I want, therefore, to ask questions of the Attorney-General and the Lord Privy Seal about the councils.
The Home Secretary himself said, quite rightly, that when it comes to the implementation of those parts of the recommendations which the Government have accepted, the first step will be to set up these councils. They are very important. Have the Government yet considered and made up their mind about the composition of the council? The chairman will be a very important person, and the membership will be very important. The Franks Committee recommends that it should be a small body, consisting of ten members, and that it should have members with legal knowledge, experience and qualifications, but that the majority should be laymen. It is very important that when the council is first established its membership should create confidence in it.
This is a debate in which we express our personal views. That is what the 506 Home Secretary wanted. Consequently, I wish to ask the right hon. Gentleman whether he has given any consideration, or ought to give any consideration, to whether members of the House of Commons should be eligible for membership of the council. The Franks Committee had Members of Parliament upon it. Is there advantage or disadvantage in having Members of Parliament on such a body? I do not put forward a definite proposal, but it is a matter which ought to be considered.
Having regard to the functions and powers which the Council will have over the whole field of social insurance, another important question arises, and that is whether representatives of those in industry—employers and the Trades Union Congress—should be included in its membership, for they will be deeply concerned. Consequently, I hope the Government will give consideration to the composition of the Council when they make the necessary appointments.
We have not had an intervention from a Scottish hon. Member. I do not know whether the Scottish hon. Members realise that the Government have thrown Scotland overboard. There is not to be a separate Scottish council, but it has been decided that there shall be a separate panel for Scotland, whatever that means. Perhaps the Attorney-General will explain it. If there is to be a single Council for the whole country and not a separate one for Scotland, I reserve the right of my Scottish colleagues to return to the battle some other day. On the other hand, if there is to be one Council for the United Kingdom with a panel for Scotland, then I must reserve the position of my Welsh friends. If there is to be a panel for Scotland, why should there not be a panel for Wales? That is another matter to which we shall have to return.
On the whole, I feel that the case for the Council has been made out. We must all appreciate that the membership of the Council will be enormously important. If it seems to be overweighted in its political opinion, views and experience and does not carry the confidence of the country, it will not be the useful body which it could be and which the Franks Committee desired it should be.
I now turn to some of the detailed recommendations and what the Home Secretary has said about them. I read 507 with very great care the detailed recommendations made by the Franks Committee about the procedure before tribunals. I have been very much impressed by the careful way in which the Committee examined the problem and by its very important recommendations. With regard to what happens before the hearing, before the tribunal begins its job, the Committee lays down how very important it is that the claimant, the man with a grievance, should know that he has a right of appeal and how he should appeal. With all respect to my former Ministry, I doubt whether we have really lived up to what we hoped we should do in the social insurance sphere. There are still people who do not know that they have a right to appeal in social insurance matters. This is a matter of publicity, of telling the people. I hope that this recommendation, to which I attach very great importance, will be considered very carefully.
It is also very important that before he goes to the tribunal the man who is to appeal shall have set out the case he has to answer. The Committee also recommended that the document setting out the case against the appellant should be sent to him not by the Department, but by the tribunal.
§ The Attorney-General
The documents which will come from the tribunal will deal with tribunal matters, but the statement of the case which the Department wants to make will come, as it should come, from the Department.
§ The Attorney-Generalindicated assent.
§ Mr. Griffiths
We were all deeply impressed by the speech of my hon. Friend the Member for East Ham, North (Mr. Prentice), who has great experience of these subjects, and I entirely agree with what he said about whether the hearings should be in public or in private. That decision should be left to the chairman, but the appellant ought to be consulted. Generally speaking, the hearing ought to be in public unless there is a very good reason for holding it in private.
It is especially important that industrial injuries cases should be heard in public, because so many people are concerned.
508 One of the advantages in the old days when such cases went to court was that people read about workmen's compensation cases and came to understand them and to know them. If hearings of industrial injuries and National Insurance cases were in public and were attended by the Press, the people would be informed about how the National Insurance schemes were working. That is a good method of publicity, and there is nothing to be lost and everything to be gained by having hearings in public.
The Franks Committee recommended that the chairmen of tribunals should be appointed by the Lord Chancellor. In the policy statement of our party, prepared by a committee of which I was a member, we anticipated that by saying the same thing fifteen months ago. We said that there was much to be said for members as well as for chairmen of tribunals being appointed by the Lord Chancellor. The Franks Committee recommended that the members of tribunals should be appointed by the new councils, but the Lord Privy Seal rejected that and the Government's view is that members of tribunals should be appointed by the Minister after consultation with the Council on Tribunals.
Appointing members of tribunals after consulting the new councils will not be the best way to proceed. Members of local tribunals are to be appointed all over the country and there will be hundreds of tribunals. A committee of ten sitting in London will have to appoint tribunals in Llanelly, Northampton, Newport, Leicester and so on. How will they be guided in deciding on those appointments?
Whether they are appointed by the Lord Chancellor, by the Council or by the Minister, I suggest that the best advisers as to suitable persons to serve on these committees in the areas are the local advisory committees of the Ministry of National Insurance. I am certain that they are the right bodies, with the right kind of experience. There are now over 200 of them, and their members are drawn from all ranks of contributors to the National Insurance Scheme—employers, trade unionists and others. They all have wide experience. They have the function of supervising and keeping in close touch with the administration of the Ministry through the whole 509 country. They are the right kind of people to advise as to membership, and I hope that when we discuss this question in detail that fact will be borne in mind.
I now turn to the question whether the chairman should always be someone with legal qualifications. My view is that in the case of an industrial injuries tribunal he should be. In other kinds of tribunal there is a good deal to be said for maintaining at least a proportion of non-legal or lay chairmen. That is at least so with National Assistance tribunals.
Next comes the question of legal representation at these tribunals. There is an unanswerable argument for providing legal assistance for the man who is not able to state his case and has no one else to do so. I shall explain in a moment. I admit that I have one fear about it. Once it begins on any kind of large scale it will become the general practice. If an appellant who is a non-unionist has a lawyer when he appears before a tribunal, on the next occasion when a trade unionist has a case before it, he will say. "If the non-unionist can have a lawyer I must have one."
On the other hand, it is very important that everyone who goes before these tribunals in connection with matters which are of great importance to him should have every assistance in fully stating his case. I hope that we can achieve that without destroying what is of the very essence of the success of these tribunals, namely, their informal—not injudicial but informal—atmosphere, which has done an enormous amount of good. This country owes a great debt to them. We have recently been discussing the problem of what is to happen in industry. One of the causes of the greatest bitterness in the coal-mining industry was the knowledge that if a man did not get workmen's compensation he felt that he was denied it, or that he had been unjustly treated and robbed of his rights by his employer. One of the contributions that we made towards improving industrial relations in this country was to take the problem of the treatment of injured people out of the contentious industrial field.
§ Mr. Griffiths
I do not think that any consideration has been given to it, and I very much doubt whether it would work.
If we provide for legal representation in these tribunals—and I am thinking particularly of the industrial insurance field—we shall be giving nothing unless the Government are prepared to expand the legal aid service. What chance has a man appearing before such a tribunal of getting legal assistance unless he receives help in doing so? If there is to be any reality about providing the right of appellants to legal representation before these tribunals it is essential, as the Franks Committee said, that the legal aid scheme should be expanded to cover the case of appellants appearing before them. Secondly, the means test which is now applied must be made much more generous.
Regarding the right of appeal, there is a growing feeling that on points of law there should be an appeal from the Commissioner to the courts in insurance cases. There is no time to do so this evening but I should like to have read what was written to me by someone with wide experience. I will put the case to the House as it was put to me. It was suggested that under the present system sometimes cases heard by local insurance tribunals result in an appeal by the insurance officer acting as a statutory officer, but when the case comes to the Commissioner it is not a question of an appeal against the decision of the local tribunal on the facts before the tribunal but a rehearing of the case.
I have in my possession a letter from a man from my own union, the South Wales Miners' Union, referring to a case in which a widow made a claim for benefit under the National Insurance (Industrial Injuries) Act on the grounds that the death of her husband had been caused or accelerated by pneumoconiosis. The local tribunal decided in her favour and awarded a benefit appropriate under the Act. The local insurance officer appealed to the Commissioner. I am told that when the case came before the Commissioner new medical evidence was produced and a battery of witnesses and, in effect, it was a new hearing and not an appeal. In such cases there should be an appeal to a higher court.
511 When I was piloting the legislation through the House it was interesting to me that my colleagues and friends in the trade union movement, who supported the proposal to set up tribunals, thought it was wise to consider whether there should be appeals from the Commissioner to the House of Lords sitting as a judicial tribunal. They knew from experience of decisions under the Workmen's Compensation Acts that the House of Lords had given a generous interpretation of many of the provisions contained in that legislation.
Today we are dealing only with a small part of the problem and inevitably we have been concerned about protecting the citizen against the abuse of the power of the State. As a democratic Socialist who sees the State extending more and more I accept responsibility for the fact that we must ensure that the citizen is protected.
In order to give this debate some degree of balance may I end by saying that while we have been concerned with the State as a power, and with the "man in Whitehall" to whom someone referred, we must remember that in the history of this country, and particularly during this century, the State has not always been a tyrant or despot. The State has been a protector. Positive State action has made personal freedom a reality for millions of people. My first experience of the State was that as a miner I was told it would be illegal for me to work more than an eight-hour period in the pit, which pleased me. It prevented my employer, unless he wished to break the law, from making me work more than eight hours, which did not please him.
The establishment of the Welfare State has brought real freedom to millions of people. The problem is to realise that the State has a positive function and to discover how in a planned society we can ensure that all the time the State is the servant and not the master, and that those who serve the State are servants and not masters. How can we combine a planned economy with personal dignity and freedom? I believe that we can do both. The Franks Committee, in the limited field in which it was allowed to roam, has made a valuable contribution to those twin necessities of modern society, reconciling authority and power with the 512 preservation of personal dignity and freedom.
§ 9.36 p.m.
§ The Attorney-General (Sir Reginald Manningham-Buller)
The right hon. Member for Llanelly (Mr. J. Griffiths) began by saying that he found himself in the unusual position of having to congratulate the Government. I thank him for his congratulations. I am sure the House will agree with me that the right hon. Gentleman showed in his speech that he found the position enjoyable. I hope that he will repeat that experience.
I agree with hon. Members who have expressed the view that this is a very remarkable and astonishing debate. It indicates a change of attitude which I welcome. I do not want to be provocative at all tonight, if I can avoid it, but, looking back to those years between 1945 and 1951, I do not believe we could have had a debate of this kind then. I am sure that if proposals had been put forward by us during those years we should have been told, in terms such as were used in those years, that these inquiries were only for blowing off steam. To stop the tribunals would impede the progress of Socialism and stop the Socialist Juggernaut. It shows a change of attitude.
The Socialist Party cannot claim to be the holders of the banner of individual freedom; nor, indeed, can the Liberal Party. This debate has been remarkable for another feature; apart from the hon. and learned Member for Cardigan (Mr. Bowen), who played a valuable part on the Committee, it has been remarkable for the absence of every other Liberal Member of the House. That shows what real regard the Liberal Party have for matters of this sort and for individual freedom.
I want to add my voice to the chorus of praise which has been given to the Franks Committee. It was a formidable task, which must have meant many hours of labour and of complicated, detailed work. The right hon. Gentleman congratulated us on the speed with which we reached our decisions, and he expressed the hope that no long delay would be taken in implementing them. We shall, of course, welcome the assistance of the party opposite in securing the passage through the House of the necessary changes which they approve and which we put forward. 513 We will press on with administrative arrangements which do not need legislation as soon as we can. We recognise the importance of this work.
It is significant that there has been so little criticism of the Franks Report and of the Government's attitude towards the recommendations. The total number of recommendations is 95, of which 71 have been either completely or broadly accepted, eight have been accepted in some degree, four not accepted, and 12, we feel, must be reserved in whole or in part for further consideration. Our attitude has been to accept as many of these recommendations as we can and, when we cannot accept for one reason or another, to try to find some alternative method which complies with the spirit of the Franks Report.
My task tonight is easier because of the general approval of the Report and the favourable reception which has been given to the Government's proposals. The only real critic has been the hon. and learned Member for Northampton (Mr. Paget), and I shall come to him a little later. As has been said by my right hon. and learned Friends the Members for Chertsey (Sir L. Heald) and for Kensington, South (Sir P. Spens), tribunals are with us and serve a useful purpose. In that connection, I think the Report is extremely important where it expresses the view in paragraph 40, to which reference was made, that these tribunals are not ordinary courts but neither are they appendages of Government Departments, and where it says:We consider that tribunals should properly be regarded as part of the machinery provided by Parliament for adjudication rather than as part of the machinery of administration.We endorse that and hope that view will long prevail.
I come next to the question to which the right hon. Member referred in relation to the Council on Tribunals. I am glad that that proposal has met with such general acceptance. The right hon. Gentleman asked if I could now state what would be the composition of the Council. I cannot. I agree with him that it is necessary that its membership should command confidence, not only in England but also in Wales and in Scotland. I would emphasise that there is a great advantage in having one Council on Tribunals for Great Britain. So 514 many of the tribunals are common to England, Wales and Scotland, and if we had separate bodies for England and Scotland, or for England, Scotland and Wales, I do not think the effect of their recommendations in relation to tribunals which were common to the whole country would carry or would be likely to carry as much weight as the united recommendations of a Council on Tribunals for the whole of Great Britain. Our proposal is that there should be a panel to deal with and consider the position with regard to purely Scottish tribunals. I think I am right in saying that there are no purely Welsh tribunals.
§ The Attorney-General
There could be; I would not exclude the possibility for one moment, but that is a consideration to be borne in mind. The right hon. Gentleman asked about the composition of the panel. All I can say is that that is our approach so far as we have gone on the subject. But he ought not to say that the Government have thrown Scotland to the winds and allege that no Scottish Member on this side of the House has taken part in the debate in view of the admirable speech of my hon. Friend the Member for South Angus (Sir J. Duncan).
Another matter I should like to emphasise is that we regard the functions of this Council as advisory, not executive. We do not think it right that a body which is not accountable to Parliament should have executive powers. It was in relation to that that the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas), I am afraid, misunderstood something my right hon. Friend said in opening this debate. My right hon. Friend was dealing with the question whether members of tribunals should be appointed by the councils, and he rejected that suggestion on the grounds that the councils would not be accountable to Parliament. It was in that connection that he used the word "accountability". I want to make that clear. I should not like to undervalue the importance of the functions of this Council, because, as I see it, it will be concerned to see that the three main principles of openness, fairness and impartiality are generally observed and maintained.
515 I want to come straight away—rather out of order—to the important question the right hon. Gentleman asked about appointments to tribunals and the part the Council will play in them. The system which has worked so well of local bodies in the National Insurance field will not be scrapped or abandoned, but we feel that there is an advantage in having consultation about appointments with this Council, not for the purpose perhaps of selecting individuals, but so as to ensure that the balance of the composition of these tribunals is right.
We have had allegations tonight of some members of these tribunals being far too old for the performance of their duties. The Council on Tribunals, as I see it, will be able to keep a general eye upon them and draw the Minister's attention to the position. It may say that a particular tribunal in Wales is getting a little bit too old. [HON. MEMBERS: "Why Wales?"] I was taking that merely as an example. In that field, I think the Council on Tribunals will serve a useful purpose, but it may also serve this purpose. People may like to write to the Council and give information about the tribunals. They may say "We do not think that you ought to re-appoint Mr. So-and-so, because he goes to sleep most afternoons." There may be other comments and information which would assist us in maintaining what we want to maintain—really efficient tribunals for the performance of their various functions.
I come to a subject which was somewhat criticised and debated today—the question of legal representation. My right hon. Friend, in opening the debate, referred to "a lawyer's paradise." I do not believe that giving the right of legal representation will result in anything like a lawyer's paradise, and I do not believe that it is right to give any restricted right of legal representation.
The hon. Member for East Ham, North (Mr. Prentice), whose speech I listened to with great interest, and which I will draw to the attention of my right hon. Friend the Minister of Pensions and National Insurance, suggested that the right of legal representation should be given only with the consent of the chairman. I do not think there should be that fetter upon it. Why should not an individual have a lawyer if he so wishes and 516 if he can get one? Why should not an old lady in a case in which perhaps no question of law is involved employ a lawyer to speak for her and put her case for her as best he can?
I have never been able to understand or attach much weight to the arguments for restricting the right to legal representation. The right hon. and learned Member for Newport (Sir F. Soskice) suggested that possibly it might lead to an absence of informality, and others too have suggested that. I do not think that there is anything at all in that argument. Whether a hearing is formal or informal does not depend upon the fact that there may be a member of the Bar or a solicitor appearing for a claimant, but upon the way in which the tribunal conducts its business. That is all it depends upon, and not upon whoever goes to the tribunal to speak for any of the parties. It depends upon the tribunal and its chairman.
Then, it may be said, and this is a more difficult accusation to answer, that lawyers are always long-winded. They sometimes are, but that again depends upon the tribunal. There are some judges, and I will not mention any names, before whom the most persistent advocate would find it impossible to be at all long-winded. Seriously, it is the duty of lawyers to present cases for individuals and render that service to the community. I think it was quite wrong of the hon. and learned Member for Northampton to suggest that to give the right of legal representation before conscientious objectors' tribunals would mean that the result depended entirely on the advocate. I do not think so. I think that that is a reflection upon these tribunals which is unwarranted. If we get the right tribunal, then legal representation, when it takes place, should assist, and will assist, and not hinder the tribunal to arrive at correct conclusions.
I want to say a word about legal aid. I think what my right hon. Friend said about that was misunderstood. We have not rejected the proposal that there should be legal aid before tribunals but we have said that we have not as yet been able to implement legal aid for all those kinds of litigation for which it has been recommended, and that legal aid before tribunals must take its place in the 517 queue and cannot be implemented at present. I am sorry to say that, and I do not think I need say more.
§ Mr. J. Griffiths
If we are to admit legal representation at these tribunals, does not the Attorney-General realise that this is the opportunity to extend legal aid coterminously with legal representation?
§ The Attorney-General
The right hon. Gentleman need not impress upon me the importance of the value of legal aid, for I served on the Rushcliffe Committee.
I want to turn to a question which was much canvassed about the Franks Committee's recommendations in respect of agriculture. Some hon. Members opposite criticised these proposals by the Committee. May I put this question: what ground is there for departing in this particular respect from the three main principles which the Committee laid down and which have been so clearly approved in the House? The hon. and learned Member for Northampton said there was no criticism of these tribunals and of the way in which they function, but paragraphs 146 to 148 of the Franks Committee Report read:We have heard substantial criticism of the County Committees and…there is no doubt that the workings of the County Committees, as adjudicating bodies, are far from satisfactory. We must say at the outset that their constitution as adjudicating bodies is in conflict with the principle of impartiality…substantial objection has been taken to the fact that these Committees combine the functions of detective, prosecutor and judge, so that a fair hearing of the case and an independent decision cannot result.…We regard it as wholly undesirable that these Committees should continue to exercise adjudicating functions in addition to their executive functions.That is very strong and very powerful language, and to those who say that we should not make the change recommended by the Franks Committee that the adjudicating functions of the executive committees should be terminated, I would say that it is incumbent upon them, if they wish to establish that proposition, not only to controvert the allegations made by the Franks Committee but to produce overwhelming evidence to justify such exceptional treatment.
§ Sir L. Ungoed-Thomas
Will this matter of the agricultural executive committees come before Parliament for consideration before any reforms are made about it? Will the administrative reforms 518 which the Attorney-General has in mind be brought before the House in each case even though no statutory amendment is required?
§ The Attorney-General
The second question is one which the hon. and learned Gentleman asked twice in the course of his speech.
§ The Attorney-General
I have not yet reached it. I hope to reach it in due course. As for the first part of the question, it is quite clear that legislation is required to implement the Franks Committee Report.
I will move quickly to the next major point, which concerned the inspectors. That raised a good deal of argument. We were told that the appearance was all that matters. I do not think that that is so. I do not think that that is really the true test. Merely transferring the apparent responsibility to the Lord Chancellor whilst leaving the real responsibility with the Minister of Housing would savour rather of the nature of a sham.
The hon. Member for Edge Hill (Mr. A. J. Irvine) put the point that the inspectors get a sort of Departmental outlook. Transferring the appointment to the Lord Chancellor would not prevent that happening, because in order to get through their work the inspectors have to work in the closest collaboration with the Ministry of Housing. That is really not the answer. There have been no complaints against the way in which these inspectors perform their duties, and with the new steps that are being taken it will become more apparent than ever that they perform their duties really well.
The real answer is the acceptance of the recommendations that a statement of the facts has to be put forward on paper before the inquiry takes place, that the report of the inspector will be communicated to those concerned—and the recommendations he makes—and that the Minister's decision will be announced. That is the real thing. I do not think that the other point matters very much. It really has a certain amount of unreality.
§ The Attorney-General
The hon. Member for Eton and Slough (Mr. Brockway) raised a number of questions about a particular form of tribunal. I can only say that to implement all the recommendations we have accepted will obviously involve legislation in many directions. A great deal of time may elapse in dealing with that. I hope not. I hope that with the good will and the kind of spirit we have seen on both sides of the House today we may bring about the legislative changes fairly speedily. So far as the administrative changes are concerned, some do require further consideration. Details have to be worked out. In some cases, we feel that we should consult the Council on Tribunals, particularly on procedure. I cannot give any time but, again, this is not a matter which we want to shelve at all. I think our attitude shows that.
I conclude by saying that I feel sure that the proposals which the Government have outlined today, and the fact that we have accepted so many of the Franks Committee's recommendations, will lead not only to a greater sense of fairness being felt by all who come before these tribunals but also to a far better determination of the problems that come before those tribunals; I feel sure, too, that the proposals in regard to inquiries will, again, assist in the proper determination of the matters that come before these inquiries and on which Ministers have to decide.
§ Question put and agreed to.
That this House takes note of the Report of the Committee on Administrative Tribunals and Enquiries (Command Paper No. 218).