§ 10.1 p.m.
§ Mr. R. E. Prentice (East Ham, North)
I beg to move,That an humble Address be presented to Her Majesty, praying that the National. Insurance (Determination of Claims and Questions) Amendment Regulations, 1958 (S.I., 1958, No. 701), dated 25th April, 1958, a copy of which was laid before this House on 1st May, be annulled.I submit that it might be for the convenience of the House if we could discuss, at the same time, the other two Motions on the Order Paper, which are in similar terms:That an humble Address be presented to Her Majesty, praying that the National Insurance (Industrial Injuries) (Determination of Claims and Questions) Amendment Regulations, 1958 1ST. 1958, No. 702), dated 25th April, 1958, a copy of which was laid before this House on 1st May, be annulled.That an humble Address be presented to Her Majesty, praying that the National Assistance (Appeal Tribunals) Amendment Rules Confirmation Instrument, 1958 (S.I., 1958. No. 714), dated 28th April, 1958, a copy of which was laid before this House on 1st May, be annulled.
§ Mr. Speaker
I think that all these Motions refer to different tribunals but deal with the right of representation before them. It is really the same point, so they may be discussed together.
§ Mr. Prentice
The changes in the procedure before the tribunals which are mentioned in these Regulations are not large or fundamental changes. They are changes of detail. Nevertheless, they raise points of importance, and I want to submit to the House that the tribunals which we are discussing tonight are also of great importance within the framework of the Welfare State.
To put the matter in perspective, may I remind the House that in the last year for which figures are available, the local appeal tribunals under the National Insurance Act heard a total of 38,000 appeals, those under the National Insurance (Industrial Injuries) Act heard a total of over 7,000 appeals, and the tribunals under the National Assistance Act heard a total of nearly 10,000 appeals. In the same year, more than 50,000 people had their cases considered by these local appeal tribunals—people who, in the main, were appealing against the rejection of 1438 their claim or the reduction of their benefit under National Insurance legislation, and who, in many cases, were suffering from hardship or tragedy in the form of bereavement, sudden unemployment or some other tragedy which led them to make application for these benefits. Therefore, we make no apology for bringing this matter before the House at this rather late hour, because we are dealing with something of great human importance to a large number of people, and particularly people in need.
I believe that the changes proposed in this procedure are clearly small within the framework which was laid down nearly ten years ago or which came into force nearly ten years ago and which has worked very well. It is now nearly a year since the Franks Committee issued its Report on Administrative Tribunals and Enquiries. In the course of that Report, the Committee examined all kinds of different tribunals, and this group which we are considering tonight was the one which affected far more people than any other group which the Committee had to consider, and yet it devoted rather less space to this group than to the others, and made fewer recommendations.
The Committee found that they were working well, and said, in paragraph 171:The impression which we have gained of the working of the system of adjudication for national insurance and industrial injuries claims is most favourable. The system is generally considered to have operated smoothly for many years, and we are satisfied that no structural changes are called for.I think that that verdict is borne out by the experience of most of us who have worked before the tribunals and have had experience of the way in which they operate. I believe that the system laid down in 1946 was, on the whole, a wise system, but that, after it has been in operation for about ten years, we should certainly examine it in case some reforms are required, though on the whole no structural alterations are necessary.
The Regulations which we are considering propose very few changes. The first proposes four changes affecting the National Insurance tribunals, the second extends two of those changes to the Industrial Injuries tribunals, and the last one makes one change relating to the National Assistance tribunals. I wish to deal with the four changes under the National Insurance Act and to refer to the others as far as may be necessary.
1439 The first change to which I wish to refer is that which lays down clearly the right of a claimant before a tribunal, or other parties who have a right to be there, to call witnesses and put questions to them directly in evidence. This is a useful extension of the claimant's rights. I do not anticipate that any hon. Member will wish to quarrel with it. My hon. Friends and I have no objection to it.
The second change is the one which allows an automatic appeal from the local appeal tribunal to the Commissioner under the National Insurance Act without the claimant having to seek leave to appeal. Again, that is something which most of us would welcome. If I may speak as one who has had experience from the trade union point of view, the trade unions have enjoyed the automatic right of appeal all along, and I see no reason why claimants appealing on their own should not have the same right. As I understand, the Commissioner will retain the right to refuse an oral hearing of an appeal if he thinks it is not merited. That is a wise safeguard against appeals which do not merit an oral hearing. This is also a change which we welcome.
The Regulation dealing with the Industrial Injuries Act does not make a similar change. I understand that the reason is that it cannot be done by regulation, but will require legislation. I hope that such legislation will be forthcoming at an early date, because the same principle should apply.
I now turn to the two other changes, where there are some grounds for criticism. One relates to legal representation before local appeal tribunals. The first Regulation says that:Any person … may be represented by some other person whether having professional qualifications or not. …This is a fairly big departure from the existing position. At the moment, in cases under the Industrial Injuries Act a claimant may be represented by a legally qualified person with the leave of the chairman. I believe that in about 2 per cent. of the cases before the industrial injuries tribunals a lawyer is present under that rule.
However, under the National Insurance Act there is at present no provision for a lawyer to represent a claimant. I think that this was a deliberate decision when 1440 the Act was before the House in 1946, because it was felt that, above everything else, there should be established in the local tribunals an atmosphere which would be informal and in which the people in the room could get straight to the point and the claimant would feel at ease. The desire was to avoid an atmosphere of professional disputation. It was left to the claimant either to state his own case or to be represented by a friend or a member of a trade union or other organisation of which he was a member.
That was felt to be right for the local tribunals, which would be concerned mainly with finding out facts rather than with legal arguments. However, that did not mean to say that there could not be a legal argument at a further stage. To get the matter into perspective, we must recognise that from the beginning there has been a right for lawyers to argue cases before the Commissioner. It is at that level that the case law has developed. It is important that lawyers should be able to appear, and, in fact, in many cases the Ministry of National Insurance, rather than leave it to its insurance officers, expert though they are, have briefed counsel in cases appearing before the Commissioner.
The Commissioners' decisions were available to the chairman of local tribunals. Many of them are lawyers, or people with considerable detailed experience of the Act. Therefore, the law is there in the background, and the local tribunal could do its job without a legal atmosphere coming into its proceedings. That was a sensible sort of compromise. The Franks Committee proposed modest changes. It recognised that some people would come before a National Insurance tribunal who would not feel confident to state their own case; who did not belong to an organisation which could provide them with someone who could speak for them; who would have no one else to whom they can turn and who desired to have a lawyer representing them, particularly if their case was legally complicated.
The Committee therefore suggested that the same rule which applied already under the National Insurance (Industrial Injuries) Act should apply under the National Insurance Act as well. It suggested that a claimant could ask leave of the chairman to be legally represented. 1441 This is an important point, so I should like to quote from para. 174 of the Franks Report, which states:There are, however, claimants who do not belong to an organisation which can provide them with skilled lay representation. They may find great difficulty in conducting their own cases and may have no friend or acquaintance with the necessary skill to represent them. Such persons are particularly handicapped by a ban on legal representation While we do not wish to recommend changes which would lead to the general employment of legal representatives before National Insurance Local Tribunals or which would foster the impression that legal representation was necessary if the claimant were to have a chance of success, we are in no doubt that some provision should be made to covet this type of claimant.The Committee goes on to make the recommendations to which I have referred. I think it would have been right to have accepted that recommendation. There was force in the argument and I do not think that many people would quarrel with the change proposed. But these Regulations go much further than the recommendations of the Franks Committee. In all three of them it is proposed to give the claimant the unfettered right to have legal representation. Therefore, I think we run the two risks to which the Committee referred in the extract from para. 174 which I have read.
The first is that if it becomes common for lawyers to argue cases before these tribunals, the atmosphere of the tribunals may be damaged. I do not wish to appear to be too prejudiced against the legal profession, for which I have great respect. I do not wish to generalise too much. But I have had experience of appearing before tribunals, particularly medical appeal tribunals, where lawyers have been allowed to appear, and while awaiting my turn I have listened to the cases which have been argued. There is a tendency for a barrister to arrive with a rather wordy brief; to stick to his brief; to give a long recital of facts already well known and take up time which keeps other claimants waiting.
§ Mr. Prentice
That may be why he tends to carry on in that way.
Another thing is that a barrister is inclined to use legal terminology which 1442 is not often understood by his client or by some of the non-legal members of the tribunal. I realise that what I am saying is a generalisation and that it depends on the individual. But these professional habits which are appropriate in a court of law are not necessarily appropriate before a tribunal. There is a danger that if this happens on too general a scale the whole attitude of the tribunals will alter even towards claimants who are not legally represented and we shall damage the informal atmosphere to which I have referred.
The second danger is that people may get the impression that to succeed they need a lawyer. They may feel that the only safe way of presenting their case is to have a lawyer with them. People who cannot afford a lawyer and who lose their case may feel aggrieved, and may feel that if they had had one they would have succeeded. On that point, I would remind the House that at the moment the Government have no proposals for extending legal aid in these types of case. The ability to employ a lawyer before these tribunals will depend on the ability to pay for a lawyer, and that introduces a distinction between claimants, as to their ability to pay.
The proposal was looked at by the National Insurance Advisory Committee, which said that it felt that on balance there was no danger of lawyers being employed too widely. That may be so. I hope that the Committee was right, but it is a curious situation, in which the Government are introducing this change and are hoping to avoid various dangers—hoping that people will not take advantage of the benefits they are being given. If people do take wide advantage of them it may be that the dangers to which I have referred will materialise. I can only urge that this point should be very carefully watched, and that the Government should bear in mind the possibility of introducing at some future stage the proposals recommended by the Franks Committee.
I want to refer, finally, to the fourth change proposed in the Regulations. The relevant paragraph in Statutory Instrument No. 701 says:Every hearing by a local tribunal shall be in public except so far as the chairman of the tribunal may otherwise direct if he is of the opinion that intimate personal or financial 1443 circumstances may have to be disclosed or that considerations of public security are involved.This proposal was criticised by the National Insurance Advisory Committee, and I support its criticism. It said that hearings should be in public unless the claimant insisted on a private hearing. The point is that the Regulations suggest that the chairman should decide whether or not a hearing should be in public, and the Advisory Committee think that the claimant should have the last word. I believe that the Committee's reasoning is sound.
In these cases, in which intimate personal, financial and family details may be brought into the open, a claimant may feel that it is essential for him to have a private hearing. Whereas, in 99 cases out of 100, the chairman may accede to the wishes of such a claimant, in the hundredth case he may not, and in those circumstances the claimant may be caused great embarrassment. In such circumstances some people might feel that they did not want to go ahead with their appeal. Unless they can be assured that their appeals will be heard in private it is possible that some people with a good case for appeal may refrain from appealing. This situation is open to criticism, and I hope that it will be watched to make sure that no troubles arise from it.
It is clear, therefore, that my hon. Friends and I are taking rather a mixed view of these Regulations. We feel that some are useful changes, but that others may be criticised. We hope that the dangers will be watched. At some stage in the not-too-distant future I hope that we shall have an opportunity for a wider debate on the working of these tribunals than is allowed within the scope of these Regulations, because the tribunals do an important job. The people serving on them deserve much credit. They serve voluntarily, and their work is making the operation of these schemes a success. They deal with vital human questions, and the House should look at their working at fairly frequent intervals to make sure that we are doing everything possible to lay down a framework in which a fair system can operate and people can feel that they are having a fair deal.
§ 10.20 p.m.
§ Mr. R. H. Turton (Thirsk and Malton)
Never in my experience in the House have I heard an hon. Member more anxious than the hon. Member for East Ham, North (Mr. Prentice) that his Prayer should not be answered. I find myself in general agreement with a great deal of what the hon. Member said. However, when I was serving in the Ministry of National Insurance, my experience was that these tribunals worked extremely well and that they had a very friendly and informal atmosphere. The evidence and the findings of the Franks Committee supported that view.
After very full consideration, the Franks Committee came to the conclusion that a certain alteration could be made and I should like to take this opportunity of congratulating my right hon. Friend on being so quick about implementing the Committee's recommendation. All of us had been worried about some of these problems ever since Lord Hewart wrote the book, "The New Despotism" and these Regulations make the position very much better.
The very minor criticisms which the hon. Member made—and I regard them as minor—were directed to legal representation. However, the Regulations do not refer to that. They permit any claimant to be represented by some other person, whether having professional qualifications or not. If the claimant goes to a tribunal and desires that his case should be put by some other person, it is rather difficult to argue that he should be denied that right. This happens especially when the claimant is not a member of an organisation. He should be allowed that protection before a National Insurance tribunal.
The hon. Member argued that such a procedure would destroy all the informal character of the tribunal. All I can argue against that is the fact that we have had a similar provision for Industrial Injuries tribunals and that has not happened, except in 2 per cent. of the cases.
§ Mr. Prentice
The position is not quite the same, since under Industrial Injuries legislation legal representation has been allowed only with the consent of the chairman, and it was that proposal which 1445 the Franks Committee wanted to extend to National Insurance tribunals. However, these Regulations open the door to legal representation without the chairman's consent.
§ Mr. Turton
I think that my right hon. Friend is right to make this an unrestricted right and not to leave it to the discretion of the chairman. The circumstances in which a person may wish to be represented will not always be known to the chairman and it may well be that the claimant is not able satisfactorily to put his own case. The weakness of the system under the Industrial Injuries practice is that to succeed in his application that he is not fit to put his own case, the applicant must argue that very point before the chairman. In justice it is better to give this unrestricted right of legal or other representation.
The hon. Member was a little unfair to a profession in which I once practised some thirty years ago—although I have not since—in saying that lawyers would protract the proceedings. The class of case where it is in the interest of the claimant before a National Insurance tribunal that he should have some professional help is the type of case which is of vital importance, because it is that where some issue of principle is involved. I would far rather that that question were argued properly before a local tribunal than that it were left to be dealt with later before the National Insurance Commissioners. There is here a slight disagreement between the hon. Member, with his great experience of these local tribunals, and myself with my experience of considering these matters in an administrative capacity. I believe that this change is of very great importance.
We come finally to the question of the public character of the proceedings. My right hon. Friend is adopting the recommendation of the Franks Committee. Perhaps the hon. Member for East Ham, North will reverse his argument on the last point about an unrestricted right as to whether the proceedings are held in camera or otherwise left to the discretion of the judge of the court or whoever is in command. I do not believe that the judge can rid himself of that responsibility. That is the difficulty of those who put the opposite argument. The publicity or otherwise of the proceedings must be left to the court.
1446 Knowing that that is the procedure for the tribunals, and having seen them working, I cannot believe that that discretion will be exercised unreasonably. The hon. Gentleman said merely that he thought we ought to watch how this recommendation of the Franks Committee worked out when implemented; I agree that we should, and I believe that we can do so with every confidence. The chairmen of the local tribunals have been successful in keeping both the dignity and the friendly atmosphere of the courts. We have to guard against a certain amount of malice on the part of claimants who make unreasonable applications.
It is therefore right that we should adopt the recommendation of the Franks Committee—we have great confidence in those who were members of the Franks Committee—and not make an exception to the general rule by derogating from the responsibility of the court by saying that the appellant himself should demand whether the proceedings should be in camera or not.
The hon. Gentleman mentioned legal aid. When I was a young Member of the House twenty-nine years ago, I introduced and brought into law one of the first Measures to give legal aid to persons brought before a court and who had not sufficient means; so I think I can be regarded as friendly to the argument put forward by the hon. Member. That cannot arise on this Regulation. Whether legal aid can be implemented or not is another matter, which is not in the hands of my right hon. Friend. Those who have recourse to any tribunal should never be denied the right of legal representation through lack of means.
My right hon. Friend has met that point fairly well by saying that the person concerned can be represented either by a legal representative or by some other friend and that will meat the case in a great number of instances. I hope that the Government, when looking into the operation of the Regulation, will remember this point and in due course will secure some system whereby legal aid can be given to those who are without means and who want to argue a difficult point of law before a National Insurance tribunal.
§ 10.30 p.m.
§ Mr. Douglas Houghton (Sowerby)
The House always listens with close attention to the views of the right hon. Member 1447 for Thirsk and Malton (Mr. Turton) on matters which so recently have been within his official Ministerial responsibility. I think that the House will agree that in both the speeches which we have heard so far opinions have been well balanced and expressed with moderation and understanding of the difficulties of this trouble. Especially I would congratulate my hon. Friend the Member for East Ham, North (Mr. Prentice) on the comprehensive and fair-minded way in which he presented the arguments for and against the change which it is proposed to make by these Regulations.
It is a fundamental condition of what we are proud to call British justice, our judicial procedure, and the procedure that we have before all committees and commissions of inquiry, that anyone who has a case to present should be given the utmost facility to do it to his best advantage, and if he feels unable to do that adequately himself he should be allowed assistance in doing so. We all want to see that preserved.
The only tribunal that comes readily to my mind where that right is denied is the tribunal in the Civil Service which inquires into alleged security risks of individual civil servants who, when they appear before the tribunal, which we generously call the "three wise men," are not allowed to be represented either by their trade union or by a lawyer or even by a friend. However, there are special reasons which the Government have adduced for that procedure, and it would be quite out of order for me to pursue that matter any further. I just mention it in passing as perhaps the one exception that comes to mind in the observance generally of the principle that I have mentioned.
I was not in the House when the National Insurance Act was being considered. I saw my right hon. Friend the Member for Llanelly (Mr. J. Griffiths) a little earlier in the evening and we exchanged reminiscences about the early days; and, whether we were in the House or not, we perhaps remember some of the reasons why at that time the House felt that it was proper to make the arrangements which these Regulations propose to alter. Perhaps I am wrong—I do not know—in thinking that a good deal of prejudice against the legal intervention in these social benefit questions arose 1448 from the operation of workmen's compensation. There is no doubt that many a lawyer sent his sons to Eton on his profits and gains from operating in the field of workmen's compensation.
The stage was reached when one was not dealing with the employer. One was dealing with the insurance company which was covering his risk; though, in fact, one was dealing not with the insurance company but with its lawyers, and it had unlimited funds at its disposal to employ the best counsel in the land. Therefore, the citizen, the worker, felt quite unequal to the forces ranged against him, and he went to his union. The union felt inadequate to meet the strength of legal representation which confronted it in the courts, so the union had to employ lawyers, and the whole thing got into the hands of the legal profession.
It seemed to be far removed from the origins of the principles of workmen's compensation where the workman had a claim against his employer and where, generally speaking, they tried to settle the matter on commensense lines within the confines of the organisation in which they were both employed. I think it was the desire of the Government of the day to avoid the appeals machinery, under the National Insurance Act especially, being swept up into this jet stream of legal representation.
The Franks Committee commented on the criticism which there had been of the ban on legal representation. I do not know how widespread that criticism was, but if any citizen felt at a disadvantage in not having the opportunity of representation at an appeal tribunal, it seems to me that the ban on representation had to be reconsidered. I admit that.
It is true that most of the appellants, under the National Insurance Act at all events, had trade union representatives there with them, not all of them, admittedly, competent to represent their member's case. But I am not sure that lawyers will find this a familiar field or that they will easily take to the complexities of National Insurance, the contribution conditions and all the other things which now make the whole field of National Insurance a little bewildering to the ordinary person.
I am a member of the General Council of the Trades Union Congress and of its Social Insurance Committee. The T.U.C. 1449 gave evidence to the Franks Committee against any change in the old arrangements, which it thought worked very well; there seemed to be no strong reason for making any change. When the Franks Committee recommended that the same procedure should be applied to National Insurance appeal tribunals as was applied to Industrial Injuries appeal tribunals, however, that seemed to be a compromise and reasonable middle course to meet the problem. The Minister, with the approval now of the right hon. Member for Thirsk and Malton, has gone the whole way and given unfettered representation at the appeal tribunal, thus going somewhat further than the Franks Committee recommended.
We can only express hopes and fears about it. We cannot dogmatise on what may be the result. That is why we are approaching this Prayer with reason and appreciation of the differences of the problem and are not being dogmatic about what we think the consequences will be, but we shall have to see how it goes. I express the hope that the trade unions will not feel it necessary now to employ lawyers because of a feeling that non-trade unionists are employing lawyers in increasing numbers and because the trade unionist, who is probably now at some advantage in being able to be represented at an appeal tribunal, soon feels at a disadvantage if he has not legal representation. We certainly do not want to see a gradual approach to the situation which I described about workmen's compensation.
As for the National Assistance tribunals, I can only say that it strikes me as rather odd that any appellant before a National Assistance appeal tribunal, whether for National Assistance or for a non-contributory pension, should be represented by a lawyer. In National Insurance tribunal cases there are frequently little, tricky questions of eligibility for benefit by reference to the conditions under the Act, but before a National Assistance appeal tribunal it will mostly be evidence of need and factors which have to be balanced between the need of the appellant and the general practice of the National Assistance Board in meeting it.
I have misgivings about this, I frankly confess. They are, perhaps, made a little greater by reason of my feeling for quite a long time now that many claimants for benefits under the National Insurance 1450 scheme are told as a matter of form that if they are dissatisfied with the decision of the National Insurance officer they can, of course, appeal to the statutory tribunal, when it seems pretty obvious to any well-informed person that they have not a dog's chance if they do.
After all, in some cases there is no evidence of the qualifying contributions, and nobody can find any. In those circumstances one can employ Sir Hartley Shawcross, but he cannot convert disqualification from benefit into a successful outcome. The straw is not there with which to make the brick. Yet the claimant is in many cases given the impression that there is some chance if he avails himself of this opportunity. "Otherwise," he says, "they would not have told me I can appeal. They would not, if I have not any chance." It is only when the claimants go to their trade union officer or Member of Parliament—and we all get these cases—that we are able to see that it really would not profit them to go to the tribunal unless they could find some rebutting evidence against the opinion. "You do not satisfy the qualifying conditions for benefit."
In these circumstances, are these hapless claimers going to a lawyer to be advised that they have no chance, and are they to pay to be told it? Or will the lawyer say, "Let us see. Let us make a case of it"? They pay the lawyer, and go to the tribunal in vain. These are dangers. I have not exaggerated them.
All I can ask the Minister to do tonight is to keep in close touch with those who have their misgivings, to take note of any tendencies which he feels are undesirable, and to report to the House as he feels necessary, and ask us, if necessary, to approve amending regulations. I hope that will not be necessary. It is far better to have the fullest rights which are not abused and which do not get into undesirable channels than to impose restrictions in order to avoid those abuses and undesirable tendencies. I hope that everything will go well, and that nothing will occur which will lead those of us who have misgivings at the moment to feel that we told the Minister so.
In conclusion I would say that the Trades Union Congress is equally concerned. Without attempting to represent its view officially in this House, which it would not be proper for me to do, I 1451 think that what I have said broadly represents the approach to these Regulations of the Trades Union Congress.
§ 10.44 p.m.
§ Mr. Charles Doughty (Surrey, East)
This debate has certainly been conducted upon a high level, with very much the same views being expressed on both sides of the House. Personally, I should like to congratulate the Minister on the very prompt way he has read the Report of the Franks Committee and adopted it, with variations to which I shall refer in a moment. I hope that my right hon. Friend will be an example to other Ministers who may be tempted to read it and not to follow it up. It is an extremely important Report, and one of which we shall hear a great deal more in the future. It would not be right of me—indeed, I should be out of order if I did—to refer at greater length to that Report, or to the subsequent tribunals to be formed, we hope, after legislation is passed, to keep an eye upon this type of tribunal and upon all tribunals to see that they function correctly and efficiently.
My right hon. Friend certainly has followed the Report, and I feel sure that this change will make an improvement, in a small way, in the tribunals which hear so many cases in the course of a year.
Let us look at the matter from a practical point of view. If people were to have the advantage of the services of the hon. Member for East Ham, North (Mr. Prentice) and if they knew that their case would be presented with fluency and detail, as the hon. Member presented his own case tonight, no one would be more satisfied with the result. At least they could say that their case could not have been better presented.
But that is not always the position. To begin with, the people concerned may not have the services of an official of a trade union. They may not, for reasons best known to themselves—I am not suggesting that they would be right—wish to be represented by a trade union official. After listening to the argument of the hon. Member for East Ham, North, I would say that a claimant should be represented by no one except a lawyer. Is that really what we want to say?
1452 I want to explain that I am not saying a word against trade union officials who conduct such cases extremely fairly and with great skill; but supposing that professional people, members of the legal profession, were to be excluded, would there not grow up a different type of person, an undesirable type of person, with perhaps the gift of the gab and a rough knowledge of these Regulations, who could easily impose themselves for small sums upon the gullible? Such persons would be responsible to no organisation and no professional tribunal could have them up for unprofessional conduct.
Does the hon. Member for East Ham, North really wish to encourage that type of person and to loose them upon the public? That is what he is encouraging by this Prayer.
§ Mr. Prentice
Has the hon. and learned Gentleman seen the evidence to the effect that this is happening now, because the existing practice of excluding lawyers has been in operation for twenty years?
§ Mr. Doughty
A Herbert Committee sat between the wars to consider this matter and it said that this type of individual was becoming a nuisance. There is evidence of that. Recently that nuisance has not appeared, but there is no reason why it should not appear again.
We are in complete agreement about the first two matters referred to in the Regulations. It is right that witnesses should be called and that there should be a chance of appeal to the tribunal.
Coming back to the question of legal representation, one talks about an informal atmosphere. What is meant by that? I am sure that the hon. Member does not mean that a lot of extraneous matter, irrelevancy and hearsay should be brought in and that the time of the tribunal should be wasted by that means. One knows—the hon. Member for Huyton (Mr. H. Wilson) referred to it—
§ Mr. Doughty
I meant the hon. Member for Sowerby. We as Members of Parliament know that people come to see us in order to put their case before us. 1453 One knows the irrelevancies and extraneous matters which are sometimes dragged in and that one has to pick out the bits relevant to the case. A man with a legally trained mind or a trade union official is able before the case is presented to get the relevant facts, and the relevant witnesses if necessary, so that the case is properly presented to the tribunal. In an informal atmosphere one gets everybody talking at once. Everyone will be contradicting everyone else and extraneous matters will be brought in. If we are to have this informal atmosphere, let us know exactly what we mean.
What about legal aid? I am not arguing about that for a moment, but let us consider the priorities. The day may come—I do not know whether it will or not—when everyone who is qualified to claim it may have legal aid when appearing before any kind of tribunal, but that will not happen for some years. The scheme is working well, with possible criticisms, but if we overload it we shall break it down. The hon. Member may not have been present when a recent announcement was made extending legal aid for further criminal cases. That was a step forward. That should certainly come before any question of representation before these tribunals where, in any case, only a small percentage of cases will be affected.
I am not disagreeing that this is a matter which can be brought under these Regulations, but in my view it is not a matter which should be brought in, at any rate for some time to come. I think that on reflection the hon. Member will agree with the Franks Report that people who wish for it should have legal representation before almost any tribunal before which they may have to appear or before which they bring a case.
On the question of public hearings, it is a fundamental principle of our law, with a few exceptional cases, that all hearings should be in public. On the whole, that is a very good rule. I do not mind whether it is a civil or a criminal case, or an appearance before a tribunal, it should take place in public. If members of the Press want to attend, they should be allowed to do so. It may mean injustices to some against whom a crime has been committed, and who may not wish to come to a court and discuss matters which they do not wish to be made public, but on balance the 1454 system works well and I would rather have that system than that tribunals should hold trials in secret—
§ Mr. H. A. Marquand (Middlesbrough, East)
These tribunals do not hold trials. They merely decide whether people are entitled to pensions and inquire into their circumstances.
§ Mr. Doughty
I was dealing with the general question of whether cases, both criminal and civil, should be heard in public or in private. On balance, I think it is better that both should be heard in public. It is much better that we should have justice done in the open, rather than behind closed doors. In exceptional cases the chairman has the power to order a hearing in camera. That follows the general practice of the law, with which I am wholly in favour.
It is true that the variation from the Franks Report is an unqualified right to legal representation. The Franks Report suggested that there should be legal representation only where the chairman thought that the applicant was not capable of presenting his own case. That is really not practicable. A chairman would have to wait until a case was half over before saying to the applicant, "I have heard what you are saying, but I cannot follow it, and I think that you had better get yourself legally represented." The case would then be adjourned when it had been half-heard, or half mis-heard, and it would come before the Tribunal again on another occasion. The chairman could not make a decision until he had heard at any rate part of the case whether the applicant was a fit person to present his own case.
Having heard the hon. Member for Sowerby referring to the complexity of the Regulations and the detailed matters which have to be gone into, I would say that it is clear that an ordinary person with no experience of this kind of work would do one of two things. He would get someone to speak for him who could be better understood and followed, or he would waste a great deal of the time of the tribunal, which would itself have to do the work of finding out the facts of the case before it could decide upon those very facts.
I welcome these Regulations. I hope that our discussion tonight has made clear the reason that they were brought in, and I hope that I have been able, 1455 in some small degree, to set at rest some of the fears which have been expressed, perhaps not very forcefully but very correctly, by hon. Gentlemen opposite.
§ 10.55 p.m.
§ The Minister of Pensions and National Insurance (Mr. John Boyd-Carpenter)
I should be the last Member of the House to be in any position to object to any hon. Member putting down a Prayer. But in any case, I certainly should have no grounds for quarrelling with the hon. Member for East Ham, North (Mr. Prentice) and his right hon. and hon. Friends in putting down these Motions and so giving us an opportunity to discuss these very important Regulations. As the hon. Member for East Ham, North said in his own opening remarks, of all the changes which flow from the Franks Report, these are perhaps those which, in human terms, have the greatest importance. I am bound to say that I very much welcome the opportunity which these Motions have given me to say a word or two to the House about the reasons which led me to follow, and in one case to go further than, the recommendations of that very expert Committee.
It might be for the convenience of the House if I were very quickly to summarise what the three sets of Regulations before us actually do. The hon. Member for East Ham, North said that they do four things. In a formal and technical sense, that is so, but one of the four matters which he included, that which related to the express right given to persons concerned before these tribunals to call witnesses and to ask questions of witnesses, is, in fact, declaratory of the existing practice, as I think he knows, and does not constitute a change. I thought, none the less, that it was right, when setting out in new form the Regulations governing certain aspects of the procedure of the tribunals, to set out clearly that, I think, very important right. But I should not like to appear to be claiming credit for a change which is no change at all except in the purely formal sense. That part is declaratory.
The National Insurance Regulations give the automatic right of appeal, they provide for public hearings subject to the right of the chairman to vary that—on which I will say a word in a moment—and 1456 they abolish all restrictions on legal representation. The Industrial Injuries Regulations do not deal with the right of appeal. For the reason which the hon. Gentleman the Member for East Ham, North hinted at, that matter being already dealt with under the Industrial Injuries Act, it can be varied only by leglislation. Also, the Industrial Injuries Regulations do not provide for public hearings, because that is already the position, but they do remove all restrictions on legal representation. The National Assistance Regulations also remove the restriction on legal representation, and they follow the Franks Committee in providing neither for public hearings nor for further appeals. In both cases, that is strictly to follow the Franks recommendation.
The hon. Member for East Ham, North concentrated the greater part of his speech upon his cricitisms of the provisions relating to National Insurance tribunals—and, in particular, he criticised the unrestricted right of legal representation. He indicated, I thought, that he had no great enthusiam for legal representation, but he would not particularly mind it if it were permitted at the discretion of the chairman, as is the existing practice in the Industrial Injuries tribunals.
I will deal with that point in a moment, but perhaps I ought first to remind the House of the somewhat anomalous position which has existed so far. It has been the position that a claimant before one of these National Insurance tribunals could be represented by a friend, provided that that friend had no legal qualifications. I came across that matter some two years ago and, but for the appointment of the Franks Committee, I should have laid regulations dealing with that anomaly some time ago. I thought, however, that, as it was clearly within the purview of the Franks Committee, it would be an impertinence on my part to do so and, therefore, I let the matter rest. The present is not only a slightly ridiculous situation—and neither you nor I, Mr. Speaker, can for one moment accept the view that a lawyer cannot be a friend—but in individual cases it has also had embarrassing and unfair effects.
There was one case when an elderly widow who desired to be represented before a tribunal by her son was unable to 1457 do so because her son happened to be a qualified solicitor. My hon. Friend the Member for Devonport (Miss Vickers) has on a number of occasions raised with my hon. Friend the Joint Parliamentary Secretary the case of a solicitor who is good enough to give free advice on National Insurance questions to poor people affected by the Regulations but who has been debarred from representing them before the tribunals. Clearly, that is not consonant with fairness to the applicant.
Let me take now the narrower point that this should be at the discretion of the chairman. On principle, I do not see any advantage in putting that on the chairman. I see some disadvantage. It is extraordinarily difficult for the chairman to form a view as to how to exercise that discretion. I understand that the practice in the Industrial Injuries tribunals, where that has been the rule, has been that almost invariably permission, when asked for, has been granted. If that be so, however, there would seem to be little justification for entrusting the chairman with that duty and there seems to be, on principle, almost everything to be said for saying that if, in a matter of importance to him that is being argued before one of these tribunals, a person wants to be represented by somebody, he should not have arbitrary and artificial limitations imposed on his choice of that somebody. That is why it seemed to me that though it is true that the Franks Committee recommended more the assimilation with the Industrial Injuries rule, the right thing to do was to go further and give an unfettered choice to the applicant as to whom he should be represented by.
Fears have been expressed—my hon. and learned Friend the Member for Surrey, East (Mr. Doughty) has dealt effectively with some of them—that this will result in the wholesale introduction of lawyers into these tribunals with unfortunate effects upon their procedure. I do not believe there is any reason to assume that the right to legal representation will be very freely exercised. On the contrary, I think it will be in only the exceptional case that a lawyer will appear professionally, although it may well be that in a certain number of other cases a man who happens to be a qualified lawyer will appear, as in the cases I have mentioned, in the rôle of friend.
1458 I have had a check made of what has happened in tribunals in three of the National Insurance regions since these Regulations came into effect on 5th May. That check reveals that in 1,084 appeals heard in those three regions, there has been legal representation in five cases. It may be said that that was the early days of the Regulations before their effects were fully appreciated and that the tendency may be for numbers to increase. That may well be so. So far as it goes, however, that appears to indicate that the view which I have taken is right and that it is unlikely that in any very large number of cases applicants will feel it desirable or necessary to have legal representation. They will, after all, not be opposed by trained lawyers. There is no suggestion that the normal practice in respect of insurance officers before the tribunals will be changed.
In that context, perhaps I might correct the hon. Member for East Ham, North in what he said about legal representation before the Commissioner. I understood him to say that my Department was inclined on occasions to brief counsel in front of the Commissioner. Quite apart from the point, which is a good deal more than a technicality, as the hon. Member knows, that it is the chief insurance officer, not the Ministry, who is the party, it is not the practice of the chief insurance officer to brief counsel. If he finds, even before the Commissioner, that the case is one requiring legal assistance, he falls back upon the extremely able lawyers on the legal staff of my Department. As the hon. Gentleman, who has had such a long experience, had fallen into that slight error, I felt that it would be right if I were to put the record straight.
On the broader issue, going back to the tribunals, I do not feel that the fears which have been expressed of any damage to their extremely effective procedure, to which the Franks Committee paid a justified tribute, are likely to be realised. What happens in front of the tribunal is, after all, largely in the hands of the chairman of the tribunal. It must be the experience of many of us familiar with advocacy that it is extraordinarily poor advocacy for any advocate to try to impose his methods on the tribunal before which he is appearing. The better advocate adapts himself with some flexibility to the procedure which the tribunal 1459 approves and practises. Even if I am wrong in my earlier suggestion that legal representation will be the exception rather than the rule, I do not think that we need fear that the expeditious and sensible procedure of these tribunals will be adversely affected by having professionally qualified advocates appearing before them.
I should like to make it clear that there is no reason to assume that it will be necessary for any applicant before the tribunals to be legally represented if he is to obtain justice. The chairmen are now very experienced and the procedure is well settled, and I do not think that any applicant need be under the impression that unless he is legally represented he will in general be subject to some handicap. I should not like that impression to get about.
As to the hon. Gentleman's point that lawyers may be incomprehensible to the tribunals, I must point out that with two exceptions the tribunals have legal chairmen, and, once again, that an advocate, feed or unfeed, who addresses a tribunal in such a way that the tribunal is unable to understand him is not on the whole a very good advocate.
§ Mr. Boyd-Carpenter
They have the advantage on points of law of the guidance of the legally-qualified chairman. Again, when one is addressing a tribunal, it is best to make sure that one's argument is understood by the members of the tribunal. Therefore, though I fully understand the hon. Gentleman's point of view and would not wish to regard it as frivolous, I do not think it is well founded, but I will, of course, as is my duty, watch what effect the change may have on the practice of the tribunals. If, contrary to my views, there were a deterioration in their working, I would not hesitate to consider what should then be done.
I turn to the other point to which the hon. Gentleman addressed himself, as did the hon. Member for Sowerby (Mr. Houghton)—the matter of public hearings. As my hon. and learned Friend the Member for Surrey, East pointed out, the argument of hon. Members opposite here was almost the converse of that which they put forward on the subject of legal representation. Legal 1460 representation, they said, should be, if at all, at the consent of the chairman, not the absolute right of the claimant. Here, on the other hand, they say that the right to a hearing in closed court should be the absolute right of the claimant and not at the discretion of the chairman.
We can possibly exaggerate the importance of this matter. It is not realistic to believe that the opening of the tribunals will cause immense flocks of the public to queue up for the purpose of attending. Their work is extremely interesting to those of us interested in this matter, but it does not, which is perhaps fortunate, have the sensational character which sometimes attends a criminal trial. I do not believe that the question of coping with the public gallery will necessarily be one of the major problems with which we shall have to deal.
However, it is true that the opening will mean that some people will attend and in many circumstances it is a good thing that the local Press should be able to attend. I hold very strongly as a matter of principle that, as my hon. Friends have said, justice is much best done in public and abuses or suspicion of abuses are much better prevented if judicial bodies do their duty in public where, if the Press so desires, the Press can come and report what is done, and where if anything is done amiss, newspapers, the public and Members of Parliament can become quickly aware of it and can take the necessary steps.
I start with a very strong bias in favour of the public doing of justice. I accept that when that principle is applied to these tribunals, there are circumstances in which someone may genuinely be deterred from going to the tribunal if he feels that intimate and personal matters may have to be brought out in public and perhaps reported. That is a problem which to some extent faces those who attend our courts of law where closed sittings are very exceptional, indeed.
§ Mr. Boyd-Carpenter
That, of course, is a matter solely of personal circumstances, and I do not think that that is in pari materia with this. At any rate, we provide the necessary safeguard in the discretion of the chairman. It would 1461 be somewhat derogatory to the position of the chairman, who, after all, is responsible for the conduct of the tribunal, if the decision as to whether it should sit in public should be taken from him and placed in the hands of the claimant.
There is another side to this. There may be cases, possibly exceptional, in which the chairman may well think that the hearing should be closed, even though the claimant has no wish to apply for that. There may be cases, not unknown, where there is a malicious desire to bring out things about other people in public which might be very harmful to those other people and where the chairman might think it his duty to use his discretion, whether the claimant asked or not, or even if the claimant specifically asked otherwise, for the hearing to be closed.
The right method is to leave it with the chairman. I appreciate, however, that the National Insurance Advisory Committee expressed some doubts about the matter and that it is my duty in connection with my responsibility for these tribunals to watch this matter very closely. Perhaps I may tell the House what I have arranged to do.
I have arranged that for the first three months from 5th May—and the process is now going on—the clerks of the tribunals shall report the number of requests for private hearings, the number of such requests granted, the number of cases where a private hearing has been refused and the claimant has thereupon declined to proceed personally with his appeal or taken some other step to withdraw it. I am arranging for reports to be made available to me, and if any hon. or right hon. Member cares at the appropriate time to put down a Question, or in some other way to elicit the information, I shall be happy to give it to the House.
Hon. Members will agree that that is probably the best and most satisfactory way of testing whose judgment is right in this matter. Once again let me say that, if I saw that this provision was adversely affecting the working of these very important tribunals, I should not hesitate to make any adjustment which in the circumstances seemed necessary.
So far, on the test check to which I referred a few moments ago, in three regions there have been twenty-four applications by claimants for closed hearings. Twenty-thee have been granted, and the 1462 twenty-fourth case—of which I have obtained particulars with which I do not want to weary the House—was one, in which, although it would be impertinent for me to express any view upon the chairman's decision, the circumstances were plainly very unusual.
Despite the views expressed on these two matters, I think that the House generally has taken the view that these three Regulations constitute a real step forward. They involve the acceptance, over quite a wide sphere, of the recommendations of the Franks Committee, and they will involve some new problems for those concerned with the administration of these tribunals, as well as those concerned in appearing for either party before them.
I was glad to hear my right hon. Friend the Member for Thirsk and Malton (Mr. Turton) pay tribute to the very high quality of the chairmen whom we are fortunate to get on these tribunals—and I would also like to pay a tribute to the other members. These Regulations will mean new problems for them, but I believe that in following the principles which the Franks Committee recommended, after most careful study, and which public opinion has overwhelmingly accepted, we are taking a step which will ensure that these important tribunals will do their vital job even better than they have done it in the past.
§ 11.16 p.m.
§ Mr. H. A. Marquand (Middlesbrough, East)
My hon. Friend the Member for East Ham, North (Mr. Prentice), in his excellent speech, reminded us that during the past year 50,000 individuals had appeared before the various tribunals whose work we are discussing. It was principally because of the very large number of our fellow-citizens who are affected by the workings of the tribunals that we decided to put down these Prayers.
In doing so, we had two main objectives. One was to give greater publicity than might otherwise be obtained to the very important changes which these Regulations are making in the workings of the tribunals. We are very grateful to the Minister for the full way in which he dealt with these changes in a very short time the excellent explanation he has given as to how he thinks they will work, and also the evident care with which he will watch their operation. Although this matter is being taken late at night in the House of Commons and 1463 arouses no political controversy, I very much hope that the newspapers will find room to report, not my speech, but what the right hon. Member has said, in order that all the people affected by the working of these tribunals can get to know what their new rights are. I think my hon. Friends will agree that although there may have been misgivings many of them have been removed by what the right hon. Gentleman has said.
Our second objective was to examine the way in which the tribunals worked, and the Reports of the two Committees which have commented upon them. Although little has been said about it, I want to say how much I approve of two of the main changes made in the procedure by the Regulations which the right hon. Gentleman has laid. First, there is the extension of the right of appeal. That is a very welcome improvement. I attach enormous importance to the right of appeal, as part of our social services. I have been a Minister of Pensions myself, and I know extremely well how valuable it is to the working of the system of pensions—war pensions and civil pensions—that the applicant should feel that he has the right of appeal if his first application, put forward in good faith, is found to be faulty. It strengthens our social services, and the acceptance of the services by our citizens, if that right of appeal is obvious, regular and automatic. I go further; I say that it strengthens the operation of the rule of law in our society generally if people feel that they have a right of appeal; the right to a second opinion. I could not express my pleasure too strongly that this automatic right of appeal is now being granted. In the same way, it is valuable that the unfettered right of persons concerned to bring witnesses and have evidence put before the tribunal by their witnesses if they so choose is granted to them. These things are excellent.
As my hon. Friends have said, we had some misgivings about the extension of representation, particularly because it was evidently intended to be an extension of legal representation. I do not propose in the short time that is left to say very much more about that. The case has been well put by my two hon. Friends, and two Members opposite, both of whom have legal experience, have put the other case. I think that case has been well debated.
1464 I hope that all lawyers in this House who have pride in their profession will not misunderstand us when we remind them that the ordinary man in the street is a bit intimidated when a lawyer appears and takes part in an argument in front of a tribunal. He feels uneasy and unsure of himself. He feels afraid that some sort of learned jargon is being used which may misrepresent his opinions and feelings.
What we were doubtful about, and the danger to which my hon. Friends wanted to draw attention, was not that there had been legal representation, but that the right hon. Gentleman was taking action which went even further than the recommendations of the Franks Committee itself. That seemed to us a very srange thing. We were certainly entitled and bound to ask for an explanation of that. If there were no other reason to move a Prayer, this was certainly a reason: why should the right hon. Gentleman think it right to go beyond the recommendations of that formidable Committee?
I think that what the right hon. Gentleman said tonight was reassuring on those aspects. It was certainly very interesting to hear his explanation of the anomalies which sometimes arise with regard to the absolute bar on legal representation. I at any rate was not aware that that kind of case which he cited had arisen. I personally have some sympathy with his argument that if, after all, the applicant wants to have legal representation one is going rather far if one says that the chairman is entitled to deny that. Whatever our views and however far we go—I may not go so far as my hon. Friends in my doubts of the wisdom of the legal representation before these tribunals—we were all reassured to know that in only five out of the 1,084 cases in a recent period had legal representation taken place.
Particularly we were glad to hear the Minister say that there will be no need for any applicant to believe that he will be handicapped if he is without legal representation. That was a most significant sentence which, I hope, will be reported and related to all the people who may have cause to go before these tribunals. That is a very valuable assurance, and we are glad to have had it. I am glad also that the right hon. Gentleman gave the assurance that he will 1465 watch the working of the tribunals and will not hesitate to change it or ask the House to change it if it proves in any way unsatisfactory.
On the question of publicity of the hearings of the tribunals, I am not yet won over from my misgivings about this. I must say that I cannot help attaching in this matter more validity to the opinion of the National Insurance Advisory Committee than I do to the opinion of the Franks Committee. The National Insurance Advisory Committee, which has on it men with great wisdom and knowledge and vast experience of the working of our system of social security, said categorically,In our view it would be preferable for the applicant to have an unfettered right to a private hearing.The right hon. Gentleman said categorically that he regarded it as his personal duty to watch this aspect of the new changes, in particular, very closely, and he added that he is doing so already, that he is collecting the information and that so far there has occurred only one refusal when a claimant has asked for a private hearing.
§ Mr. Boyd-Carpenter
In case I have misled the House, I should repeat that that was in the three regions where we made this test inquiry and out of the 1,084 cases. I do not wish to give the impression that it covers the whole country. We have not yet obtained the figures.
§ Mr. Marquand
I am obliged to the right hon. Gentleman. I remember that he said that, but for the moment it had slipped my memory. In any event, the proportion was very low. I dare say that from time to time my hon. Friends will take the opportunity at Question Time to ask what the figures show.
I feel that we have gained a great deal through having put the Prayer on the Order Paper tonight. I am sure that if the Press do as I have asked them and give publicity to our proceedings, we shall have helped thousands of our fellow citizens considerably. We shall do so if we make known to them the availability of these new provisions and if we make known to them the assurance about fair dealing which the right hon. Gentleman has given us tonight.
Having said that, I hope that my hon. Friends feel that they can now withdraw the Motion.
§ Motion, by leave, withdrawn.