HC Deb 05 May 1959 vol 605 cc341-9
Mr. Blenkinsop

I beg to move, in page 92, line 39, at the end, to insert: except as hereinafter provided in this section. It is customary in this House to object to the negative procedure on Orders submitted before the House. Right from the start, therefore, there may be a good deal of sympathy with the Amendment which calls for the affirmative procedure for the one set of regulations, and one set only, provided for in the Bill.

This is a paving Amendment for the consequential Amendment in page 92, line 41, at end insert: (3) No statutory instrument containing rules made by the Lord Chancellor under section one hundred and twenty-three of this Act shall have effect until approved by a resolution of each House of Parliament. This Amendment relates to the very important rules which under Clause 143 are to be established by the Lord Chancellor to deal with the operation of the tribunals. I think it would be agreed that these are some of the most important of the rules that we have to consider. There is common agreement in the House that one of the difficulties of orders submitted under the more normal negative procedure is that there are not only no opportunities of amendment of the Order but that there is a danger that Orders may pass by without the full consideration of the House. It is particularly important in this case, when we are dealing with a matter of so much relevance to the liberty of the subject. Therefore, I am not only appealing to the interest of the House, which is traditional on this type of Amendment, but to the special consideration of the House in relation to the specific provisions of the Clause.

I think it right that I should explain to the House that we had some discussion of this matter generally in Committee and it was suggested that there were very wide powers of Order making in the Bill. Indeed, one can find in the Bill all too many cases in which the Minister has wide powers to provide by regulation for a whole series of events. We have looked at these, at the Minister's own invitation, rather carefully to discover which we feel most clearly justifies the affirmative procedure. We have had correspondence from the right hon. and learned Gentleman, which we have welcomed, explaining his views on other regulations in other parts of the Bill and why he feels that he is following long-established precedent in using the negative procedure in these cases.

We would agree that in many of these cases the matters to be dealt with are relatively minor. Many of them are administrative matters and it is not easy to isolate the more important matters of principle from the general question of administration. For that reason, we have not pressed for the affirmative procedure to be used in all these cases, although it would have been quite open to us to have done so. We feel that the success of the Bill largely depends on the acceptance of the tribunal procedure as being the real safeguard of the liberty of the individual.

The anxieties expressed on Second Reading and in Committee can best be set at rest in our view by the emphasis which we give to the way in which this tribunal procedure is to operate and the form of its composition, which we may be discussing at a later stage. It seems to us, therefore, that here is abundant evidence of the desirability of using the affirmative procedure. We would hope that even if it is the case that the Minister is not able to accept the Amendment at this stage he would look at the matter again and consider whether he would follow the precedent which he himself has been setting, offer a further opportunity of amending this point and table a suitable Amendment at a later stage in another place.

9.45 p.m.

I hope that he will feel himself able to say that he will look at this matter again sympathetically. I am sure that he wants this procedure to be successful, and I sincerely feel that it would add to its success if he would accept that point of view, even though he may wish to give further consideration to the way in which he carries it out. I do not think that we on this side of the House would wish to press the matter to a Division. I hope that he will be able, as he has made many concessions to our points of view during the course of the Bill, to show his good will on this further occasion.

Dr. Johnson

I rise to support the Amendment and to ask my right hon. and learned Friend whether he will give it his consideration in the manner that has been urged on him by the hon. Member for Newcastle-upon-Tyne, East (Mr. Blenkinsop) who proposed it.

We have had a series of debates in Committee on this question of individual liberty, and several of us were reluctant to accept these review tribunals, in the first place, as a court of appeal and rather urged that they should take the place of the justices. We struck that out in Committee and accepted the majority decision of the Committee on it.

We are left now with the tribunals as the defenders of individual liberty on this important, complicated and frequently contentious question. I have expressed my own anxieties on the question of these rules in the Amendment which is on the Order Paper in my name and the name of three other hon. Members on both sides of the House. You, Mr. Deputy-Speaker, quite correctly, did not call it because we had discussed this matter rather fully in Committee, when I took the opportunity of making a rather invidious comparison between the rights of ordinary mental patients who would be taken into hospital and detained and the rather superior rights of those who came into the courts. As I went into that question fully in Committee, I do not want to detain the House with any arguments on those lines now.

The rights that are retained in the Bill in the case of patients from the courts, as set out in Clause 61, are the basic safeguards for the individual against wrongful detention. I am pleased to say that I have found them elsewhere in my researches during the last day or two. I was pleased that my right hon. and learned Friend had given us an assurance that these tribunals would come under the Council on Tribunals under the recent Act and be guided by it.

I am glad to find that our own Government literature set out generally the aims in regard to tribunals and the changes that have been made recently. This states that the change is to ensure that in these inquiries and tribunals the individual citizen will get a fair hearing. He will have access to reports, he will have the right to see certain documents and know the reasons for decisions, he will not suffer from a ban on legal representation, and he will be able to call and question witnesses.

These are the basic things which have been generally adopted by all Government Departments and naturally one is pleased to have the assurance from my right hon. and learned Friend that these will be the principles governing the tribunals. So we are not really very far apart on this point and there is only a small difference between the fact that the Minister has given these various promises and the matters which I have set out in my Amendment which we would like to have seen written into the Bill.

I hope I may say just a word on this matter from a purely personal point of view, because I have special reasons for feeling strongly on this subject. It may be, to use the jargon in which we are working at present, that I am slightly paranoiac on the subject, so I hope I may be pardoned a brief reference to my personal experience. The right hon. Lady the Member for Warrington (Dr. Summerskill) said we might all be potential patients. I can speak as an actual former patient, so I am rather one up, so to speak. May I, therefore, briefly use my experience not only as an illustration but also to help to express the strength of my feelings on this matter? Several hon. Members, in addition to the right hon. Lady, have told mental health stories, and we were particularly touched by her own when we debated the Report of the Royal Commission.

For obvious reasons, I have had a certain amount of diffidence about telling my own story, but now I get round to it I feel that, instead of providing a spice of novelty, I may be in danger of proving to be something of a bore if I go into it in full. It gives us perhaps a natural feeling of élan as Members of Parliament when we appear in the Sunday papers, as I did last Sunday, with an incident that happened some eight years ago. But, of course, a wealth of speculation and mystery, such as appeared to surround me, does not really replace proper and contemporary evidence, which may be brought at the time, or the chance to examine witnesses and so on. We have a large amount of lore on the question of detention in mental hospitals to draw upon, and I am drawing from transatlantic lore when I use the phrase about being rail-roaded into a mental hospital. That is an American phrase, of course, and conditions there have been in many respects similar to those in this country in the past.

Not only should that not be done, not only should there be no chance of that kind of thing being done, but there should not even be the suspicion floating about that it might have been done at any time. If we are to have confidence in the working of this Measure and in the general mental health services. I am not happy about one part of the rules already contained in Clause 123. In subsection (2, c) of that Clause there is the prohibition of the publication of reports of proceedings.

Mr. Deputy-Speaker (Sir Charles MacAndrew)

We are far past that. We are now on Clause 143.

Dr. Johnson

My apologies, Mr. Deputy-Speaker, that was something of a digression.

To revert to the question of rules in general, there is possibly some object in these things, because even though some stories may seem fantastic the patient should have the opportunity to examine witnesses since sometimes even the most fantastic story can prove true.

Mr. Deputy-Speaker

I think that the hon. Member is now dealing with an Amendment which was not selected.

Dr. Johnson

My apologies. I will return to the Amendment now before us.

Those are my reasons for supporting the Amendment. These are very important matters and the House should have the opportunity to debate them under the affirmative procedure. I hope that my right hon. and learned Friend will consider the matter, and, between now and the time the Bill goes to another place, will meet a number of us who are particularly anxious about this matter and who would like to have the opportunity to talk to him about these things.

Mr. Walker-Smith

The rules which the Lord Chancellor will make to guide the procedure of these tribunals are a matter of great importance on which we had some discussion in Committee. Whether a Statutory Instrument is subject to negative or affirmative resolution is not constitutionally so important as hon. Members are sometimes disposed to suggest. The importance to some extent varies with the geographical positions which we occupy in the House from time to time. Experience of these things tends to show that there is less difference than one might suppose, because basically there is an effective form of Parliamentary control with either method.

Part of the case of the hon. Member for Newcastle-upon-Tyne, East (Mr. Blenkinsop) is that a Statutory Instrument which is subject to negative procedure cannot be amended. However, that is an inhibition which flows not from the form of Parliamentary control, but from the very nature of the Statutory Instrument itself. Whichever way it is done, one cannot amend a Statutory Instrument.

As the hon. Member was good enough to tell the House, I have had some correspondence with him and one of his hon. Friends about this matter, and I said then that the principle seemed overwhelmingly in favour of the negative procedure in this context. The negative procedure for a Statutory Instrument is normal unless the Statutory Instrument falls into one of those categories of case to which the affirmative resolution is constitutionally and procedurally considered to be more appropriate.

10.0 p.m.

Those are, in fact, three. First, where the powers are given which, when they are exercised, will substantially affect the provision of an Act of Parliament either by altering its language or increasing or limiting the extent of its duration. Secondly, powers which impose a financial charge such as, for instance, the Purchase Tax Orders to take a familiar instance. Thirdly, what are known as skeleton powers where the parent Act fixes the purpose but leaves the whole of the substance to be dealt with by subordinate legislation as, for example, in an Act passed during the period in office of right hon. Gentlemen opposite, the Industrial Organisation and Development Act, 1947.

When the Select Committee on Delegated Legislation considered this matter in 1953, it quoted the evidence of senior Parliamentary counsel to the effect that at least three-quarters of the instances of affirmative procedure would in fact come within these three categories to which I have referred, and the residue would come within the various miscellaneous cases which, for a particular reason, were thought to be of special importance.

That is the broad principle which governs the procedure as to whether it be affirmative or negative, and rules made to govern the procedure of tribunals occupy a clear position in the negative part of the field. They do not come within any of the three categories to which I have referred, and they are therefore within the negative category. Even the rules of the Supreme Court under the Supreme Court of Judicature (Consolidation) Act, 1925, are subject to negative resolutions only, and we could hardly invest these rules, important as we think them to be, with higher constitutional safeguards and procedures than are considered necessary in the case of the Supreme Court itself.

We have abundant safeguards here under the negative procedure, apart from the negative procedure itself, which, we all know, having attended here late at night to hear these matters debated, is a very effective form of Parliamentary control. In addition to that, the rules are to be made not by an ordinary Departmental Minister but by the Lord Chancellor himself. But, not only that, they are to be submitted in draft to the scrutiny of the Council on Tribunals.

Having regard to the long tradition which puts these so inescapably into the negative part of the field, it would be a very odd time to depart from precedent in that regard when we have got the Tribunals Act working and have got the advantage of a Council on Tribunals to which we can submit these rules in draft.

I hope that on reflection the hon. Gentleman, who was perfectly right to raise this matter on the Floor of the House—I am sure the right hon. Gentleman does not think he was wrong—will, having heard the overwhelming arguments against it, now give still further evidence of the rectitude of his judgment by agreeing not to press the Amendment now.

Mr. Blenkinsop

I listened with a little sorrow, and not altogether with surprise, to what the right hon. and learned Gentleman said. I confess that the precedents he has submitted for our attention are strong ones, but the difficulty about the negative procedure is that the Orders become operative as soon as they are published and before the House has an opportunity of discussing the matter. I will not urge that point further.

I would make the plea to him that he should find some way, both in relation to these rules and to other regulations that are provided for in this Bill where they are of some considerable significance, particularly affecting the liberty of the individual, of discussing them as widely as possible before they are published so that we can have the widest understanding of their purport. I hope that if I beg leave to withdraw the Amendment the right hon. and learned Gentleman will recognise that we shall keep in mind the arguments that he has made and that they may become of value and of use within who knows how soon—perhaps within a short period of time.

On that understanding, I beg to ask leave to withdraw the Amendment.

Amendment by leave, withdrawn.