HC Deb 06 March 1963 vol 673 cc469-80

Where on a complaint made to an appropriate court under section 19 of this Act the court fails to make an order under that section the complainant may appeal therefrom to a court of quarter sessions.—[Mr. Temple.]

Brought up, and read the First time.

Mr. John M. Temple (City of Chester)

I beg to move, That the Clause be read a Second time.

In the unavoidable absence of my hon. and gallant Friend the Member for Wembley, North (Wing Commander Bullus), I present this new Clause which, I believe, is comprehensible and contains no printing mistakes whatsoever, and therefore I hope that it will commend itself to the Minister.

This Clause has the support of the Association of Municipal Corporations, the Rural District Councils' Association and, I believe, the other local authority associations. The underlying object of the Clause, will, I think, be reasonably clear to hon. Members on both sides of the House. It is to make it possible, mainly for local authorities who, I believe, have a considerable knowledge of constructional standards and dangers with regard to buildings and structures, to be able to take action before a higher court.

I will explain this rather more clearly. It may well be that a magistrates' court under Clause 19 of the Bill may fail to make an order for putting down dangerous conditions and practices. Clause 19 contains all kinds of references to possible dangers to structures and buildings and it is just possible—I speak as a magistrate—that magistrates may not be quite as conversant with dangerous conditions in premises as are inspectors of local authorities.

In the particular circumstances, if this Clause were added to the Bill local authorities would be able to make an appeal to quarter sessions against the decision of the magistrates' court. The Clause is put forward in order that we shall be able to give additional protection to the public. I do not believe that this is in any way an unreasonable request, and as an extra safeguard it may well commend itself to hon. Members on both sides of the House. I hope that my hon. Friend the Parliamentary Secretary will take into consideration the extra safeguard to the public which would be assured if this Clause were accepted.

6.45 p.m.

Mr. Whitelaw

My hon. Friend the Member for the City of Chester (Mr. Temple) has put forward this Clause with a very careful and well reasoned argument. We had a similar discussion, as hon. Members will recall, in Standing Committee. On that occasion, an Amendment to the same effect was moved by my hon. Friend the Member for Darlington (Mr. Bourne-Arton) and my right hon. Friend undertook to consider the point further. Since then, this problem has been most carefully considered. I think that one must accept at once that on the face of it it seems equitable that equal rights of appeal should be given to both parties. But having said that, one then has to appreciate that their interests are really quite different.

The decision of the magistrates' court against the occupier hits his actual interest and one might add, of course, his pocket. He has to do something; he has to spend money; he may even have to shut down his premises. I think that it would be agreed that in the general principle of our law a man in such a position has the right of appeal from the court in the first instance to a higher court, and under the Bill he has that right.

I equally think that it would be accepted that an enforcing authority is not in this regard in the same position. Surely to some extent the enforcing authority is in a position analogous far more to that of a prosecutor, and in our law we do not give a prosecutor a right of appeal against an acquittal. I do not think that anyone would suggest that we should. But I think that we have to accept that the position of the enforcement authority in this case is somewhat analogous. In factories the safety issues, I think it is generally agreed, are likely to be even more important than those under the Bill. In fact in the Factories Act the provision suggested in this new Clause is not given. I think that it would be agreed that one should have a finality of enforcement at some point. That point was fixed without going as far as this new Clause for the Factories Act, and we felt it right after long consideration to maintain the same principle as in the Factories Act.

I realise that this is a difficult point and that there are arguments on both sides. I should like to assure my hon. Friend that the decision to continue as in the Factories Act was taken only after very careful consideration of all the possible issues, and I hope that I have been able to put in detail the reasons why we felt it was right in this case to maintain the same principle and to follow the precedent of the Factories Act.

Mr. Prentice

I find the Parliamentary Secretary's views on this new Clause very disappointing. In the unlikely event of his hon. Friend wanting to press it to a Division, I think that we would support him. I think he has made out a case that deserves a better answer than the one he has had. The Parliamentary Secretary said, as was said on a similar point in Committee, that the position of the occupier in this is different from the position of the enforcing authority, and he has drawn attention to the fact that the occupier has to spend money to comply with an order and, in certain circumstances, might have to close down.

What we are really concerned with is not so much the rights of the enforcing authority as an authority, but the rights of the employee. The Bill is designed to provide certain minimum standards for employees. A local authority applies for an order on behalf of the employees where it thinks they are required to work under conditions so bad that they fail to come up to the very moderate standards—in our view, in some cases, too modest—of this piece of legislation. It would, therefore, seem reasonable that the enforcing authority should have the right to appeal to a higher court if the magistrates do not feel inclined to make an order. There must be finality at some point, but should it rest at the point of the magistrate's court? I do not want to denigrate the voluntary magistrates, for I was one myself, but it is only right that against their decisions there should be appeals and I would have thought that this was one of the things against which an appeal should lay in certain cases.

This is something about which, I would have thought, the Government might have been prepared to make a concession. I hope that they may feel inclined to do so before the Bill reaches another place and that, if they do not, a number of noble Lords will raise the matter because a case has been made out and it has not been answered by the Parliamentary Secretary.

Mr. Ede (South Shields)

I understand the main argument adduced by the Parliamentary Secretary was to the effect that finality should be reached if the case goes one way at the lowest court. Are we certain that finality will be reached there? If the local authority is seriously aggrieved by a decision, is it not possible that it will ask to have a case stated for consideration by a higher court; which would be a much more expensive way for the defendant if the decision a there goes against him?

I would have thought that an appeal to the appeal committee of quarter sessions, which is well understood these days—where the committee has been carefully selected from among the magistrates—would enable the case to be contested far more cheaply than if it goes by way of case stated or such other remedy as the local authority may have. I support the Amendment and the views expressed by my hon. Friend the Member for East Ham, North (Mr. Prentice).

Mr. Graham Page

The Clause would introduce an entirely new principle into our criminal law, and I am doubtful if we should accept that the Bill is of such an exception to all criminal law that we should introduce a Clause which would completely reverse the normal principle that there is no right of appeal from acquittal. The only really good reason why a local authority should want to take the matter to a higher court would be on a point of law; perhaps for a rehearing of the facts all over again. The fellow acquitted should not, I would have thought, have to be put to the burden of having those facts tried all over again.

If there is a point of law it should be decided by a higher court, and the local authority has the right to ask the magistrate to state a case for this. It can then be taken to a higher court, but not for a rehearing of the facts. It is no argument in support of the Clause to say that the prosecutor in this case is acting on behalf of employees or the public. The prosecutor is always acting to protect the public in one way or another, and in, say, a traffic case he is acting to protect the public against, perhaps, dangerous driving. Thus this is no argument for the Clause. I do not think that we could accept that the Bill is such an exceptional piece of legislation that we must destroy a major principle of our ordinary law.

Mr. Hale

With respect to the hon. Member for Crosby (Mr. Graham Page), so far as I understand the Clause—and I speak always subject to correction, for we have a mass of paper to understand and a great deal of discussion to study—this is nothing to do with the prosecution. It is true that the effect of applying Clause 19 on an owner has some penal consequences, and I am happy to see my right hon. and learned Friend the Member for Newport (Sir F. Soskice) in his place—had I seen him first, in fact, I do not think that I would have had the cheek to get up to comment on this matter otherwise—for he could comment further from his knowledge and ability and with authority on this matter.

There are always these quasi-criminal, quasi-civil procedures which are not easy to define. An application for an injunction may be penal in its results and it may result in great financial consequences. I speak subject to correction, but from my reading of Clause 19 there is no provision for a punitive penalty in the sense of a sentence or fine. The owner of the building is not convicted of anything. He may be hard hit but, as I understand it—and as I have said I always speak subject to correction—the only effect is on the building; a serious matter for him, but the declaration is that the building should not continue to be occupied until it is made safe and the prohibition on its occupation and use remains until the dangerous conditions are remedied. That is a civil procedure.

I realise that this is not an easy matter. We have always had this problem of civil proceedings before magistrates. I rather think that there are even more now than when I was in practice, for there are matrimonial cases, affiliation cases between persons and a variety of others. There is no prosecutor as such involved in the provisions of the Bill. There is a complaint by an appropriate officer of the local authority who merely says, "These premises are not safe to be used". There cannot possibly be any question in the mind of anyone that if the local authority comes to the conclusion that there is a fire danger of the type we recall in this country—and I can recall some striking examples in work places in the United States—something should be done about it. In the type of cases we can all recall we probably know that for a considerable time the authority had been writing and saying, "You must do something about this; you must keep the doors open and widen those exits." On many occasions local authorities must have told those concerned, "You must act quickly"?

Clause 19 as originally drafted—and I do not think that it has been amended—provides that a case could be heard by a single magistrate. Is not the point of providing for such matters to be heard by a single magistrate simply a question of ensuring urgency? Again subject to correction, when I was practising—and it is some years since I did that—a single magistrate could hear applications for the disposal of certain matters of urgency under the provisions of the old system. But a single magistrate could try a charge. Urgent matters decided by a single magistrate may mean perhaps without all the evidence being ready.

In this case, however, the law would work rather in the form of an interim injunction. A single magistrate makes an order and the complainant has the right to appeal to quarter sessions and the hearing there would be in the nature of a rehearing, with power to call fresh evidence; with the result, perhaps, that the right order is made. Surely, in the circumstances, there is no invasion or abrogation of principle whatever and there is nothing fundamentally wrong in saying that the complainant may not have had the expert evidence at his disposal and had to put a case for a prohibition or injunction of an interim kind to prevent any danger to workers and that, in those circumstances, there should be the right to go to court when there would be more time to consider all the evidence.

Mr. J. Hynd

Like other hon. Members, I feel rather uneasy about this matter. Unlike my hon. Friend the Member for Oldham, West (Mr. Hale) I will not go into the legal ramifications. However, from the layman's point of view, it seems obvious that there is something wrong here.

The proposed new Clause refers to Clause 19. I think that it also involves Clause 60 in which, again, the question of appeal is involved, including the right of the enforcing authority to appeal. I certainly cannot see the logic of the argu- ment of the hon. Member for Crosby (Mr. Graham Page) regarding the right of the public prosecutor; and the remarks of my hon. Friend the Member for Oldham, West adequately dealt with that matter.

The position, when the Bill is passed, will be this. A complaint is made about there having been a breach of the provisions of what will then be the Act. The case goes to the magistrates' court and the prosecution is confirmed. There is the right of appeal but, according to the hon. Member for Crosby, the same right of appeal should not be given to the enforcing authority which is, it is claimed the prosecutor. But surely it is not the prosecutor in that sense. Why did it bring the case in the first place? Not in order to punish somebody or to see that the penalties of an Act of Parliament were applied because of some crime or misdemeanour, but primarily in order to ensure observation of the conditions required by the Act in the interest of perhaps large numbers of ordinary people who have no other safeguard.

7.0 p.m.

That is why it does it. No local authority will bring such an action unless it is fully satisfied from its experience that the conditions exist which create a risk to safety or health as laid down in the minimum standards under this Measure. Is the House seriously suggesting that because a magistrates' court, and it might be a single magistrate, does not quite see the point and rejects the order the local authority is then to be left helpless with no other recourse?

I should have thought that in simple justice and equity the local authority, being the only authority concerned with safeguarding the interests of those who are working on the premises which it is satisfied are either dangerous or injurious to the health and comfort of the employees, must have this recourse. Unless the Minister can give us a much more satisfactory reason, and I cannot imagine that he will, because we have had this point dealt with already in Standing Committee, I would seriously consider whether we should not reject the Clause as it stands or at the very least ask that something should be done to put it right in another place.

Mr. MacDermot

The Minister is in the House on this occasion without the assistance of one of the Law Officers of the Crown. This is the first of a number of proposals which will raise quite difficult legal questions and I would have hoped to have seen a Law Officer present. Perhaps we shall later. If the House divides, it looks as if we shall have some interesting cross-voting, because the House does not seem to be divided in the normal way on this matter.

I share the views expressed by the hon. Member for Crosby (Mr. Graham Page). I feel that it would be wrong to introduce the new Clause and that it would bring about an innovation into the legal system. It is true that these are net strictly criminal proceedings, but, as my hon. Friend the Member for Oldham, West (Mr. Hale) has said, they would be quasi-criminal proceedings. In these circumstances the person who is bringing the proceedings has the duty, first of all, to satisfy the court of first instance that the facts of which he complains are well-founded. If he proves the facts, he then has to satisfy the court that the facts produce a state of affairs about which in law the court ought to make an order. If the complainant establishes his facts but the court refuses to make an order, that is a matter on which he will have the right of appeal to a divisional court by way of case stated. That is frequently done in cases of this kind.

Mr. Ede

To the benefit of lawyers.

Mr. MacDermot

I am afraid that the lawyers will get the benefit whether the case goes to quarter sessions or to the divisional court, and I do not think that it is right to suggest that it is very much more expeditious to go to quarter sessions. Probably it will be more expensive if the appeal is to quarter sessions, because then there is a completely new hearing of the matter. It has to be tried again. All the witnesses have to be called on both sides and there may be fresh witnesses, whereas if it goes to the divisional court it is a purely legal argument on the facts as found by the magistrates.

The principle is that when a man who is put in peril on a criminal or quasi-criminal charge he ought not to be put in peril twice. If the prosecution fails to prove the facts the first time it ought not to be allowed to say, "Sorry, we did not prove our case very well the first time. We will try again and produce more evidence". It is a very salutary requirement that those who complain shall produce all the evidence and the facts at the first time of asking.

Mr. Graham Page

Has the hon. Member noticed that if the new Clause is carried there could be an appeal from the interim order as well, so that the man might be put in peril four times, on the interim order being heard, on an appeal from that, and then going back to the magistrate again. This comes under subsection (2).

Mr. MacDermot

I think that is quite right. I had not noted the point.

If we look for precedents in this matter surely there are many provisions under public health Acts and the Town and Country Planning Acts where the enforcing authority, usually the local authority, can bring someone before the magistrates and ask for an order, on a complaint, for example, to abate a nuisance or on an order for an enforcement notice under the Town and Country Planning Acts.

I speak again subject to correction, but I think that it is not normal and I cannot think of any instance where under those Acts if a complainant fails to establish his facts before the summary court he is able to appeal to quarter sessions in order to try to prove his case afresh there. Although this is not a strictly criminal matter it is quasi-criminal. There are many precedents, and for my part I think it would be undesirable to give the complainant the right of appeal.

Mr. Whitelaw

The discussion has underlined the difficulty of reaching the right decision on this matter. I have received welcome reinforcements from my hon. Friend the Member for Crosby (Mr. Graham Page) and from the hon. Member for Derby, North (Mr. MacDermot). This I find very encouraging, but against that I have to set the right hon. Member for South Shields (Mr. Ede), and he is a very powerful reinforcement on whatever side he chooses to go, and he has gone against me. There have been other powerful reinforcements against me in the hon. Member for Sheffield, Attercliffe (Mr. J. Hynd) and the hon. Member for Oldham, West (Mr. Hale).

If we had legal opinion on one side and lay opinion on the other one would have understood that, but this occasion is more difficult because we have legal opinion and lay opinion on both sides. Clearly, therefore, this is a most difficult matter to resolve. The House may have noticed that in my original speech—untypical of myself because I usually rush in far too fast—I was extremely careful not to commit myself on the new Clause at that stage. I thought that it would be right to hear further the views of the House on both sides on this matter in view of the difficulty in reaching a decision. I suggest, having heard the discussion, that possibly the right course for my hon. Friend the Member for the City of Chester (Mr. Temple) would be to withdraw his new Clause now. Then this point can be returned to in another place where perhaps further arguments of the sort we have heard can be undertaken to consider the point further.

I am bound to tell my hon. Friend that my right hon. Friend believes that the decision we have made is the right one, but of course it was a narrow decision and a difficult one to reach. In these circumstances it would seem right not to rush into hasty action now but to withdraw the Clause and continue discussion on what is inevitably a rather narrow and difficult point. I hope therefore that my hon. Friend will be ready to withdraw the Motion.

Mr. Temple

On this comparatively short Clause we seem to have got into rather deep water. Lawyers on both sides seem to be divided, but one thing on which they are united is that this will be a legal breakfast of some magnitude if it is enacted in this form. I never claimed to be wedded to the wording of the Clause. All I claimed was that the spelling was immaculate. But I was fortified by the support which I had from the right hon. Member for South Shields (Mr. Ede), and I should like to quote one short sentence from a letter which I have received from the Association of Municipal Corporations which entirely supports the point of view which the right hon. Gentleman put forward. It reads: It is not clear whether local authorities have a right of appeal upon a question of law by way of case stated to the Divisional High Court of the Queen's Bench Division. The Association of Municipal Corporations thinks that there is doubt on this matter.

I should like to thank the Parliamentary Secretary for saying that once again this matter, which is of some consequence, will be reconsidered, and, in those circumstances, I beg to ask leave to withdraw the Clause.

Motion and Clause, by leave, withdrawn.