Lords Amendment: In page 48, line 22, at end insert new Clause "A":
A.—(1) An inspector appointed under section 52(1) or (5) of this Act shall not be personally liable in respect of any act done by him in the execution or purported execution of
this Act and within the scope of his employment, if he did that act in the honest belief that his duty under this Act required or entitled him to do it:
Provided that nothing in this subsection shall be construed as relieving an authority by whom an inspector is so appointed from any liability in respect of acts of their officers.
(2) Where an action has been brought against such an inspector in respect of an act done by him in the execution or purported execution of this Act and the circumstances are such that he is not legally entitled to require the authority by whom he was appointed to indemnify him, the authority may, nevertheless, indemnify him against the whole or part of any damages and costs or expenses which he may have been ordered to pay or may have incurred, if they are satisfied that he honestly believed that the act complained of had been within the scope of his employment and that his duty under this Act required or entitled him to do it.
§ Read a Second time.
§ Mr. MacDermot
I beg to move, as an Amendment to the Lords Amendment, in line 1, to leave out subsection (1).
Perhaps it would be convenient to discuss, at the same time, my second Amendment, in subsection (2) to leave out "such an inspector" and to insert:an inspector appointed under section 52(1) or (5) of this Act".That is consequential.
§ Mr. MacDermot
I wish to express some slight reluctance in moving the Amendment, solely for the reason that the new Clause was moved by one of my noble Friends, Lord Shepherd, in another place, and anyone who has read the reports of the debates on this Bill in another place will be conscious of the careful and valuable contributions made by Lord Shepherd to the consideration of the whole Bill.
I know that he moved the new Clause solely with the intention of trying to assist the local government inspectors in what is obviously going to be a difficult task, especially in the early stages of enforcement. But I am moved to propose the Amendments because it seems to me that the new Clause raises an important question of constitutional principle which the House should consider.
The House will remember that nearly all the enforcement under this Bill will be done by local authority inspectors. What the new Clause proposes, as it 2006 stands, is two things. First, in subsection (1) it proposes that those local authority inspectors shall be exempted from any kind of personal liability in the courts in respect of any act done by them in the execution or purported execution of their duties under the Act provided that they act within the scope of their employment and did so in the honest belief that they were either required or entitled to do the act complained of. That, broadly speaking, is what subsection (1) would do.
Subsection (2) provides an additional and, in my belief, useful protection for the inspectors. It provides that where in perfectly good faith a local government inspector has, in fact, exceeded his authority and acted outside the scope of his authority so as to render himself liable for an action, perhaps for damages, the local authority would have the power—would not be obliged to do so—to indemnify him if it is satisfied that he was acting in perfectly good faith and thinking that he was acting within the scope of his employment and, again, doing something which he was required or entitled to do.
I would not wish to interfere with the second subsection, and my Amendment would preserve it. But it is the first subsection which, in my submission, raises important questions of principle. I suppose that all of us who have studied the law, and, indeed, most hon. Members, whether they have studied it or not, will remember reading with pleasure the great work on The Law of the Constitution by Professor Dicey. In that work he singled out two distinguishing features which he said throughout our history have been the cardinal principles of our constitution. They are the sovereignty of Parliament and the rule of law.
I suppose that it is particularly upon us as Members of Parliament to sea that we do not abuse the first of those principles, the sovereignty of Parliament, by whittling away the rule of law. As defined by Professor Dicey the rule of law had, of course, three separate meanings, and the second of those was the principle of equality before the law. I do not think I can do better than to read his own words which will be, I am sure, familiar to many hon. Members. He says:We mean in the second place, when we speak of the 'rule of law' as a characteristic 2007 of our country, not only that with us no man is above the law but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. In England the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary courts, has been pushed to its utmost limit. With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. A colonial governor, a secretary of state, a military officer, and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person.He then goes on to compare unfavourably the constitutions of other civilised societies with our own for the reason that they do not have enshrined in their constitutions this principle of equality before the law.
In my submission, subsection (1) as it stands is an undoubted infringement of that great principle. We all know that in modern legislation there has been a very great increase in the number of inspectors, either Government or local government inspectors, who have powers which do result in some infringement of the liberties of the individual which are necessary for the greater common good. They are sometimes scathingly referred to as "snoopers". But it seems to me, however necessary it is for us to create inspectors of this kind and to give them such powers, that in discharging those powers they should remain answerable to the courts for their actions in exactly the same way as every other citizen. They should not form a specially privileged class outside the law.
I do not wish, of course, to see local government inspectors being personally ruined by an action for damages brought against them for something which they have done in good faith. Nor do I want to see them fear to exercise their powers courageously and impartially lest they shall bring upon themselves an action for damages. Of course not. But there is no question of anything of that kind arising because the universal practice 2008 today of all local authorities is to take out insurance policies which effect protection for all their officials, and any official who is acting within the scope of his employment would, of course, be entitled to the cover and protection of such an insurance policy. So he is not, in that sense, personally at risk in the pecuniary sense.
However, that is no reason for saying that he should not remain personally liable in the sense that he shall be personally answerable in the courts for his actions and that they can be tested and probed in exactly the same way as the actions of any other citizens. Of course, the one case where he would not be protected by the insurance policy would be where he had acted outside the scope of his employment, and that is why, it seems to me, subsection (2) is so valuable. It enables the local authority in those cases to give the indemnity which the insurance policy would not give to that man.
I should make clear that my noble Friend Lord Shepherd is in no sense responsible for the drafting of this new Clause. I think he said in another place that he had taken it bodily from the ill-fated Shops Bill which this present Bill now replaces. I regret to have to inform the House that there are a number of older and, as I believe, disreputable precedents for this Clause.
Following up a hint dropped to me by the Parliamentary Secretary, I have been making certain researches. The passage which I read a moment ago from Dicey first, I think, saw the light of day in 1885. Ten years before that, in 1875, this great principle in our Constitution which he enunciated had already been breached—breached in Section 265 of the Public Health Act, 1875.
That Act provided that all local authority officers would be exempted from personal liability for anything they had done bona fide for the purpose of executing that act. Whether it was the result of Dicey's work or not, I do not know, but I have been unable to find any repetition of this undesirable precedent until the year 1936, when in Section 305 of the Public Health Act of that year the Section of the 1885 Act was applied again. Then, I am afraid, the precedents follow in more rapid succession.
2009 In 1938, the principle was extended to the Food and Drugs Act, in Section 94, and I think that that is where the wording of the present Clause is to be found. In the last days, I regret to say, of the Labour Government in 1951 they passed an Act called the New Streets Act, which by Section 8 again applied that provision. I mention that to show that no party is in a position to stand in a white sheet of innocence in this matter. In Section 128 of the Food and Drugs Act, 1955, again there was a repetition of the 1938 Act provision and finally, as recently as 1961, in Section 81 of the Public Health Act, we find a further application of the provision of the 1875 Act.
There may be other examples in this dismal story, but these were the only examples which I have been able to find. I draw little comfort from the fact that I was not a Member of the House when any of those Bills were passed. Unless I happened to be in the Committee on those occasions it is exceedingly unlikely that I should have had sufficient vigilance to spot them then. Bad precedents do not by repetition become good precedents. In spite of these precedents, it is a wrong principle to exempt any kind of public official from personal liability for his acts.
May I inform the House that I understand that my noble Friend Lord Shepherd has been approached about this matter and that if the House sees fit to accept the Amendments which I have proposed, he will be willing to recommend their acceptance in another place.
I suggest to the House that the time has come to stop the rot and that we should not again automatically re-enact these provisions, which I think constitute a stain on our Statute Book. Perhaps we can find the opportunity on another occasion, if the House agrees with me to amend all these provisions to which I have referred, but in the meantime I beg the House to look carefully at this matter and, if they agree to accept these Amendments, to enable Professor Dicey to rest more peacefully in his grave.
§ Mr. Graham Page
I rise to support the hon. and learned Member for Derby, North (Mr. MacDermot) in the Amendment which he has moved to the Lords Amendment. I was unaware that there were so many precedents in support of 2010 this subsection of the Lords Amendment, and I was surprised to hear that there were. I have always thought that it was a major principle of our law that neither the constable nor the collector of taxes should be relieved of his personal liability for the act which he does, and I think that it is totally wrong that, in sympathy with the official in this case, the inspector, in his difficulties in carrying out his work, we should cause a further breach of such a major principle of our law.
I hope that my right hon. Friend will see fit to accept the Amendment to the Lords Amendment, because we do not want to go further with the breaches which the hon. and learned Gentleman has already mentioned of this principle of law. It would be quite wrong for the House to accept this subsection of the Lords Amendment as it stands.
§ Mr. Prentice
I congratulate my hon. and learned Friend the Member for Derby, North (Mr. MacDermot) upon his initative in this matter. Perhaps I may add that the Bill as it stands has already been improved at earlier stages by a number of his initiatives and that it would have been improved further still if the Government had accepted all the Amendments which he suggested. Certainly at the eleventh hour he is rescuing the Government from making rather a bad blunder, I say that in anticipation that the Amendment will be accepted by the Minister.
It is true that there are all these precedents. It is true that in another place Lord Shepherd moved this Amendment. He did it—as many of us move Amendments in Committee—seeing what appears at first glance to a layman to be a reasonable idea contained in similar legislation. We put down Amendments expecting the Government to give them more study in depth than a back-bench Member in either House can give Lord Shepherd's motive was to give proper protection to the inspector in the course of his duties in order to make sure that proper enforcement of the provisions of the Bill would take place. I suggest that the Government did not do their homework as they should have done. I realise that there are precedents, including at least one from the Labour Government, but I feel that this should not have taken them quite by surprise in this way.
2011 The Amendment moved by Lord Shepherd in another place was accepted by Lord Carrington for the Government in a speech which occupied only four lines of the OFFICIAL REPORT of the House of Lords. It is clear that the implications were not clearly thought out. Perhaps the look of blank incomprehension which was on the faces of all the distinguished occupants of the Treasury Bench when my hon. and learned Friend talked about Professor Dicey was a symptom of the Government's lack of preparedness in these matters.
The House owes a debt to my hon. and learned Friend—and I say that in all sincerity, and I hope that the Minister agrees. I hope that he will accept the Amendment and that the Queen's Speech in the new Session will contain Amendments to all the other Measures on the Statute Book to which my hon. and learned Friend referred.
§ Mr. Hare
I think that the hon. Member for East Ham, North (Mr. Prentice) recognises that his last expression of hope was rather optimistic.
I listened with the greatest possible care, as I always do, to the hon. and learned Member for Derby, South (Mr. MacDermot). He pointed out that this Amendment was moved by a noble Lord in another place who, I think, moved the Amendment with the perfectly honest and proper intention of trying to do as well as he could to protect the local authority inspector in the course of his duty. As has been pointed out by the hon. and learned Member and others, there are plenty of precedents for this.
I was glad that the hon. and learned Member made it absolutely clear from the start of his speech that he accepts, as I think we all do, the desirability of the provision in subsection (2). He said that this affords useful protection to the official concerned. He welcomed the subsection, and in fact his Amendment signifies that.
It enables the enforcing authorities to indemnify inspectors who may be sued for damages in respect of an act done by them which they honestly believed to be in the execution or purported execution of the Bill but which were in fact outside the scope of their employment. On that, I am glad to say, we are all agreed.
I have very great sympathy with what the hon. and learned Gentleman said. 2012 Equality before the law is, I think, a precious right, and it is perhaps a pity that this principle has been damaged in legislation by all parties in the House. Having taken further legal advice on the provisions of subsection (1), I should like to accept the hon. and learned Gentleman's Amendment. I understand that it would be better in principle to leave local authority and L.C.C. inspectors as being liable for their tortious acts in justice in the same way as inspectors under the Factories Acts. The hon. and learned Member made a strong case, and it is acceptable.
In view of the expressions of opinion put forward by the hon. and learned Member by my hon. Friend the Member for Crosby (Mr. Graham Page) and the hon. Member for East Ham, North (Mr. Prentice), I advise the House to accept the Amendment.
§ Amendment to the Lords Amendment agreed to.
§ Subsequent Amendment to the Lords Amendment agreed to.
§ Lords Amendment, as amended, agreed to [Special Entry.]