§ Mr. MacDermot
I beg to move, in page 39, line 19, after "any" to insert "civil".
I think that it would be convenient to discuss at the same time the Amendment standing in the name of my hon. Friend the Member for East Ham, North (Mr. Prentice), in line 19, to leave out "pursuant to this Act".
I think I am right in saying that whereas we have had a great number of Amendments produced by the Government to meet points raised in Committee, we have not yet persuaded them to accept any of the new Amendments now on the Notice Paper. I hope that this will be an exception and that we will be able to claim having scored at least one victory. 584 The Amendment concerns a modest point but one of considerable importance. I hope that the Parliamentary Secretary has not been given a negative brief by his advisers and that, if he has, he will pay at least as much attention to me as to what may have been put before him in his brief.
The Clause, an important one, restricts the disclosure of information which is obtained by inspectors and other enforcing authorities in the course of their investigations. This is an important principle. If the inspectors are to obtain and retain the confidence both of employers and employees, particularly when investigating accidents, it is important that the general principle should be that that confidence would be respected and that whatever is said then will not be indiscriminately disclosed.
That is what the Clause sets out to do, but it makes exceptions, the principal one being disclosure for purposes of legal proceedings. This is divided into civil and criminal proceedings. There is no limitation on the latter and in any criminal proceedings, whether or not taken pursuant to the Act—that is, when the Measure is passed—the inspector will be allowed to make available to the court any information which he has obtained in the course of his investigations.
But on civil proceedings—under the Bill as it stands—there is a limitation. He is only allowed to disclose the information in civil proceedings pursuant to the Act, including arbitrations; and civil proceedings not pursuant to the Act would be such that he would not be allowed to disclose the information. This is something which could operate unfairly. Civil proceedings which are pursuant to the Act will be proceedings where someone has been injured and brings a claim; and that claim is formulated on the basis that there has been a breach of statutory duty—that is, a breach of one of the provisions for the protection of the workman under the Bill. Where the claim is formulated in that way the inspector will be allowed to give evidence and be allowed to disclose statements made to him in the course of his inquiries.
But if the claim is not formulated as a claim resulting from a breach of the provisions but is framed as a general claim at common law—a claim for negligence without a breach of statutory duty—then, 585 although the inspector may have investigated the accident and obtained vital information which is necessary to the plaintiff's case, he will not be allowed to give that in evidence before the court or to make that information available to the parties or their legal advisers. This could operate very unfairly.
Let me try and give an example. There might be an accident where there was an independent witness, and only one witness, the person who knew the true facts. The inspector might be called in. He investigates the accident and takes a statement from that person, which is committed to writing and signed. Then that independent witness dies before the action is brought on for hearing. It may be that it turns out that there was negligence on the part of the employer—common law negligence, a failure in supervision or something of that sort, but there was no actual breach of the statutory provisions in the Act. Consequently the plaintiff could not bring his action "pursuant to this Act." He could bring it only at common law.
If the inspector were allowed to give evidence of the statement, which would be something admissible under the Evidence Act, the plaintiff would be able to establish the case, but if he were not allowed and this power were limited to cases in civil proceedings which are pursuant to the Act he would be unable to establish his case. I cannot think that anyone would feel that what is proposed under the Amendment was an abuse of confidence or in any way contrary to the spirit of the exceptions already written into the Clause.
After all, it is a very technical question of law whether the plaintiff's claim lies at common law or under the statute. Indeed, one could have a claim which lay both at common law and under the statute and it might happen that the pleader had merely pleaded the case under common law being confident that that was sufficient without relying upon a breach of statutory duty. But if the case were pleaded in that way there would be, under the present wording, a limitation of the power of the inspector to assist the course of justice and to place the true facts before the court.
I have based my argument on a case where evidence was given on behalf of the injured man. It might work the other 586 way, but our duty is to see that justice is done and not to put barriers in the way of justice, I hope that the Minister will accept the Amendment to ensure that in any legal proceedings, civil or criminal, there will be power to disclose information in this way.
§ Mr. Hare
The hon. Member for Derby, North (Mr. MacDermot) has moved the Amendment with great skill and persuasion. He suggested that the Opposition had not been getting their way at all today. He was not echoing the sentiments of his hon. Friend the Member for East Ham, North (Mr. Prentice), who has made a point of saying that everything done in the Bill has been the result of action taken by hon. and right hon. Members opposite.
§ Mr. Prentice
To put it on the record, I said that the Government Amendments today were the result of our pleadings in Committee but that the right hon. Gentleman has not given us any of our Amendments in this debate. There is therefore a chance yet of his doing that.
§ Mr. Hare
The hon. Member for Derby, North will remember that this matter was discussed in Committee on an Amendment moved by my hon. Friend the Member for Coventry, South (Mr. Hocking), which was supported by the hon. Member for East Ham, North, but I think that both the hon. Member for Derby, North and I were away when it was discussed. He has given his reasons why he thinks it would be desirable to extend to all civil proceedings, whether or not they are "pursuant to this Act", the removal of the restriction which he pointed out is imposed in the Bill on disclosure of information. Under the Clause as it stands, in any civil action founded on a breach of statutory duty under the Bill it would not be an offence to disclose information. But I have taken advice on this, and I have also listened to the hon Gentleman and, on balance, I do not think it would be right that an inspector should be required to disclose information which he had obtained in the course of his duties, purely to further some private action which had no direct connection with the Bill. This would be the effect of the Amendment that we are discussing.
587 The hon. Gentleman gave a number of examples. Let me give an example. It could mean that an inspector would be required to disclose in court trade information which might be of benefit to a rival who was bringing the action. The principle that I accept is that information should be made available to further the cause of justice but not to serve, as it could under the Amendment, purely private action. For that reason, I cannot accept the reasoning of the hon. Gentleman, and I must ask the House to reject the Amendment.
§ Mr. C. Johnson
The right hon. Gentleman will recall that when this Clause, which was then Clause 48, was before the Standing Committee I moved an Amendment which was designed to ensure that disclosure of information to a local authority for statistical purposes should not constitute an offence. I need not repeat the arguments which I then put forward because at the time the Parliamentary Secretary was kind enough to say that he would study the arguments to see in what way they could be covered by the provisions in the Bill.
I appreciate that the provisions now in the Bill for the preparation and publication of annual reports may go some way to cover this point, but, to make doubly sure, I should like the right hon. Gentleman to give a specific assurance that there is nothing in the Bill as drafted to preclude the disclosure of statistical information by a local authority to a county council, and that would, of course, include the London County Council. I think it was tentatively agreed in Standing Committee that this was the position, but I should like to hear from the Minister.
§ Mr. Hare
I am very pleased to give the hon. Gentleman that assurance. He has, I think, had it unofficially in a letter from my hon. Friend the Parliamentary Secretary.
I am advised that there is nothing in the Bill to preclude the disclosure of statistical information by a local authority as defined in Clause 77 to a county council. I am glad to give the hon. Member that assurance.
§ Mr. Graham Page
I do not think that even at this late hour the House ought to leave this matter in this state. I am very 588 sorry that my hon. and learned Friend the Attorney-General is not present. I do not mean to be offensive to my right hon. Friend the Minister of Labour in any way, but I feel that his remark that he did not want to accept this Amendment purely to further some private action, showed that he completely misunderstood the Amendment.
This Clause, as it stands, may work unfairly to either side, to the plaintiff or the defendant. The Amendment is not intended to protect either the plaintiff or the defendant. It is intended to prevent the Clause working unfairly to one party or the other. There is no discrimination about this.
For example, it depends entirely on how the plaintiff pleads his case whether the defendant will be precluded from producing this evidence. This means that the Clause as it stands will work unfairly on a defendant in that case. Through no cause of his own, he will not know how the case will be pleaded against him. If it happens to be pleaded not pursuant to the statute, he is prevented from bringing forward what may be vital evidence in his case. He cannot bring it forward even with the consent of both parties. There cannot be consent of both parties under the Clause because, if the inspector discloses the evidence, he is liable to criminal prosecution. There is thus no question of one or other party saying to himself that the Clause works unfairly against his opponent and, since he does not want to hide anything, allowing the inspector to tell the court what he knows. The judge would not allow it because there is the absolute duty on the inspector not to disclose such information.
I feel that the consequences of the Clause as it stands have not been properly thought out. I hope that, if my right hon. Friend persists in rejecting the Amendment in this House, our words will be read and something will be done about it in another place.
§ 12.15 a.m.
§ Mr. MacDermot
I appreciate the valuable support which the hon. Member for Crosby (Mr. Graham Page) has given to our arguments. I urge the Minister very strongly to look at the matter again. Although it may not seem a very large point, in a few individual 589 cases it may mean the difference between justice being done and not being done.
I remember a case in which I was involved not very long ago. I was appearing for the defendants. We thought throughout—I say this at once—that the claim which the man had brought was based on a fabricated case. We could not prove it, and the judge accepted his evidence. The factory inspector had been subpoenaed but had not been called by either side because none of us knew what information he had, and we did not want to call him blind, as it is said, without knowing what evidence he would give. Immediately after the case was over, the factory inspector came up and said that, in fact, he had a statement from the man, which he had taken only a few days after the accident, and this statement was completely and utterly at variance with the evidence which he had given in the witness box. As it happened, if I had taken the risk of calling him blind, the evidence he would have been able to give would, I think, have been completely destructive of the plaintiff's case.
There is no provision in the Factories Act comparable with this, and I should have been able to call the inspector blind in that case. But, as the hon. Member for Crosby has pointed out, in a case pleaded at common law and not as a breach of statutory duty, I should not be able, even if I wanted, to call him blind. I should not be allowed to do so under the Clause as now drafted because the claim would not be brought pursuant to the statute. This is frustrating the interests of justice.
The Minister may have a point, though I find it hard to appreciate, in saying that he does not want an Amendment in a form such as mine which would be so wide as to enable an inspector to be called in order that he might give away trade secrets, as it were. It is difficult to envisage circumstances in which an inspector, in the enforcement of this Bill, would acquire trade secrets. However, if I am wrong about that, and if there is a real risk, this becomes a drafting point. One must find the right words to ensure that the evidence may be given in the kind of cases I have in mind, which, I think, are almost entirely personal injury claims, which are the vast majority of common law cases 590 today. I certainly do not seek to obtain power for the inspector to give evidence in a breach of copyright action, a passing-off action, or anything of that sort.
I hope that what we have said, supported by the hon. Member for Crosby, is sufficient to persuade the Minister that there really is a point here which he should consider further and put right at a later stage.
§ Mr. Hare
I appreciate the sincerity with Which the hon. Member for Derby, North (Mr. MacDermot) has put his case for the Amendment, and I take note that he does recognise that his drafting may be so wide as to enable a trade rival to obtain the benefit of information. Clearly, the hon. Gentleman had not that possibility in mind when drafting the Amendment, What I think the hon. Member has in mind is a case where the inspector's presence is needed in connection with an accident which that inspector has investigated. In this case a breach of statutory duty could probably be alleged and the inspector would be able to give evidence.
At this late hour, it would probably be wiser for me to say that I should like to consider whether there are different words which could bring into practice what the hon. Member has in mind, so that the matter could be considered in the later stages of the Bill in another place. Perhaps we could leave the position at that for tonight.
§ Mr. MacDermot
I am grateful to the Minister and I hope that, with assistance, he will be able to find a suitable Amendment to meet the point. In view of what he has said, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.