§ Sir F. Soskice
I beg to move, in page 22, line 5, to leave out "or" and to insert "a".
The object of this Amendment and the next Amendment in line 5 is to include probation officers amongst those public servants who are entitled under this Clause to indemnity. The Clause refers to a justice of the peace or justices' clerk. It provides a full-scale indemnity in order to make certain that they will not have to pay out of their own pockets any damages awarded against them in respect of acts which they do in the discharge of their public service. The Clause is fully drafted. It contains a proper appeal procedure to a person appointed by the Lord Chancellor and contains such safeguards as may be requisite in the public interest. What I seek to do is to include together with Justices of the Peace and Justices' Clerks the officers of the probation service.
As a broad general proposition, I put this to the Government: a public servant who has a difficult and onerous task to discharge, which may from time to time—I do not say that it will—involve 748 him in proceedings in the civil courts for damages in respect of something that he has done in the course of his duty, ought to be certain in his own mind that there will be available to him, so long as he has acted in good faith and reasonably in the circumstances, full indemnity, which will prevent him and his family suffering in the event of an award for damages being made against him.
It is quite impossible, in the general context of things—especially in modern circumstances, when people are alive to their rights—to say of any work that it cannot from time to time involve civil liability. I exclude judges and persons who have complete indemnity by virtue of their offices, but probation officers do not have, and, with a wide range of public servants, may from time to time—owing to inadvertence, mere bad luck or a conspiracy of circumstances—find themselves in the position of having to meet, in our civil courts, a claim for damages which may be very substantial.
If an award is made against them, unless there is somebody to stand behind them, they may lose their possessions and homes and they may face bankruptcy. Their families may be severely hit, owing to what may be the merest inadvertence, a slight degree of negligence, or mere bad luck. It is in the public interest that public servants, who have a public duty to discharge, should do so fearlessly, should be uninhibited in the discharge of what they regard as their duty, and should not be kept back from the full performance of that duty by a nagging fear at the back of their minds that if they take a certain course, which seems to them proper, the result may be a claim for civil damages against them.
I do not assert that claims will be frequently made against probation officers, but the nature of the task they have to perform brings them into contact with persons in respect of whom they have to make reports, in relation to whom they may acquire confidential information, and about whom they may have a duty to make adverse comments to the courts or to other public authorities with which they have to deal. In the very nature of things, from time to time proceedings may be brought against them for libel or slander, or proceedings of various other sorts which cannot be foreseen accurately at any particular stage.
749 I put a to the right hon. Gentleman that as the public interest urgently demands that they should be uninhibited in the discharge of their public duty, so the public interest requires that adequate indemnity should go to them from the State, or from public sources, should they have the misfortune to have to face a civil claim in our courts. That principle is recognised in the Bill in respect of Justices of the Peace—absolutely properly—and Justices' clerks—absolutely properly—and I cannot see what logical distinction there can be, in those circumstances, between the situation in which the Bill puts Justices of the Peace and their clerks and the situation in which it puts probation officers, who have an important and difficult duty to discharge. I should have thought that in the coming years the duties which are incumbent upon probation officers will become not lighter but progressively heavier. As the years stretch out, it will be necessary to expand their service and to recognise that their function as servants of society is ever more important and far-reaching. If that is so, I put it to the Home Secretary that, as a matter of justice to them and in the public interest, they should be able to know that they can discharge their duties without fear and without having to put their hands into their pockets to meet civil claims.
We in the Opposition did not put down an Amendment to that effect when the Bill was in Committee because the question had not then been brought to our minds. But since then we have had representations made to us. I hold in my hand a memorandum from the National Association of Probation Officers which, when I received it, certainly brought conviction to my mind. It is pointed out that other private bodies which do not dissimilar public service such as the Citizens Advice Bureau—a different service, but it is a body which works in the same medium—have to make provision by taking out policies of insurance with private insurance companies. It is thought that the same may be applicable in the case of the Marriage Guidance Council. Probation officers are, however, public servants and, logically, they should be able to look to public funds for their indemnity.
750 If it should be said that they have not had claims made against them, I should point out that when I look at this memorandum, I have before me, at any rate, three cases. To be candid, when I read the memorandum I am not absolutely certain that these are actual cases, but it seems to me that actual cases are being referred to—cases in which claims have been threatened against probation officers for acts which they did in the course of their duty, in the bona fide exercise of such precautions as they could adopt but nevertheless in circumstances in which there was a possibility that they were liable for civil damages.
I will not take the time of the House in giving the details of these cases, but I can do so should the Home Secretary wish to be assured as to their authenticity. I simply put the general proposition to him. I say, as a matter of justice to them and in the public interest, that they ought to know that they have complete indemnity. I believe that other public servants in like case have such indemnity, and I ask the Home Secretary to say that now that the matter is brought to his notice he agrees to the justice of our proposal and will make the necessary changes in the Bill in terms of the Amendment.
I hope the Home Secretary will not say that he does not think many claims are brought against probation officers. If he does, I would point out that it is a two-edged argument. If there are only a few claims, it will not cost him much to provide the indemnity. If there are many claims, of course it will cost him more, but the mere fact that claims have hitherto been few is no reason why he should refuse this clear elementary measure of justice.
§ Mr. Speaker
I ought to have said, but I am afraid that I did not, that with this Amendment we should discuss the next one, in page 22, line 5, after "clerk", insert "or a probation officer".
§ Mr. Niall MacDermot (Derby, North)
I support the Amendment so eloquently moved by my right hon. and learned Friend the Member for Newport (Sir F. Soskice). I do so with great pleasure because it gives one an opportunity to try to repay the debt which many of us owe to the probation service.
751 Probation officers are officers of the court. They are not highly paid. They play an increasingly important rôle and function. Increasingly the courts come to depend upon probation officers, and all performing judicial functions are urged by the Lord Chief Justice himself to pay the greatest attention to the reports prepared by probation officers. Moreover, he has urged probation officers themselves not to hesitate, when preparing their reports, to make such recommendations as they think they are able as to the way in which cases into which they have been inquiring should be dealt with.
Therefore, it is obvious that by the nature of their duties probation officers may be subjected to a risk, and in particular the risk of proceedings for defamation. They have to make all sorts of inquiries into the antecedents and background of people who are brought before the courts, and they have to write confidential reports. Clearly, anything which they may say in the court to the court itself is absolutely privileged and cannot in any way become the subject of legal proceedings; but, when making their inquiries, they have to have conversations in seeking information and they may, inadvertently or otherwise, communicate information which they have already gleaned and which is part of the subject of their inquiries.
Furthermore, their reports are usually distributed to quite a large number of people before the case comes into court and it may be that their reports are never used because the accused person may be acquitted by order of the court. Clearly, however, it does not need much imagination to see that there is in these duties a potential source of risk of proceedings, particularly risk of action for defamation against probation officers. It would very obviously be a bad thing if they should feel in any way inhibited in the performance of their duties, in doing their duty efficiently but compassionately, by the fear that they might become personally liable for proceedings. Even if they were not liable for damages, they might find themselves hoist with the liability for costs by a successful defence—a successful defence against a plaintiff who was a man of straw, and against whom the probation officer could not gain an order for costs.
752 There are plenty of precedents for giving protection of this sort to public servants. Parliament recently gave a similar protection to local authority officers and inspectors in the Offices, Shops and Railway Premises Act and, when discussing that Act we considered some of the other examples of protection which is given to public servants for this purpose. In some cases, the protection goes far beyond the protection which is proposed by this Amendment, which is simply that a very fine body of public servants should be indemnified against costs and damages arising from proceedings of this kind. In some cases, there is an absolute exemption for the public servant from the possibility of any proceedings being brought against him. In 1875, Section 265 of the Public Health Act, stated thatNo matter or thing done, and no contract entered into by any local authority or joint board, or port sanitary authority, and no matter or thing done by any member of any such authority or by any officer of such authority…shall, if the matter or thing done or the contract were entered into bona fide for the purpose of executing this Act, subject them or any of them personally to any action, liability, claim, or demand whatsoever;So, there is complete exemption here; but we are not asking for that for the probation officers, but merely that they should be entitled to indemnification.
The Public Health Act of 1936 applies that Section of the 1875 Act, and Section 81 of the Public Health Act, 1961, also applies it. The New Streets Act, 1951, contains such provisions. The Food and Drugs Act, 1938, and another similar Act of 1955, contains provisions for the officers concerned. Here it is stated thatAn officer of a council 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".In other words, when acting within the scope of his employment, he gets a complete exemption. Another Section states that he will be indemnified when acting outside the scope of his employment if the authority concerned is satisfied that he honestly believed that his duty under the Act required him to do what he did. It is the protection of that second power which we are now seeking for probation 753 officers, and it was that kind of protection which was given to local authority inspectors under the Offices, Shops and Railway Premises Act. I would remind the House of what was said about that protection by the then Minister of Labour on 26th July, 1963. The Minister said that that provisionaffords useful protection to the official concerned… 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."—[OFFICIAL REPORT, 26th July, 1963; Vol. 681, c. 2011.]Surely, if we can give a protection of that kind to local authority inspectors under the Offices, Shops and Railway Premises Act we need not hesitate to give a similar protection to probation officers on whom we have imposed the delicate and confidential duties in order to get a better administration of our justice.
I entirely support all that was said by my right hon. and learned Friend about the weakness of any argument that the risk is rare and that there is no need to make any provision of this kind. I imagine that the risk of any proceedings against any justices' clerk or clerk of the peace equally would be very rare. Nevertheless, and quite rightly, that protection is being given under the Bill.
It is not a fanciful risk with which we are dealing in connection with probation officers. Indeed, in my view, there is a much larger degree of risk for them owing to the nature of their duties than there is for officials already covered by the terms of the Clause. The real argument for this protection is that the probation officers must feel free to carry out their duties without the fear and anxiety of personal liability.
I do not know whether it will be argued that in practice one would expect the probation committee to stand behind the probation officers if they found themselves sued in this way. If that argument is put forward, and it is easy to anticipate it, I would say two things. First, one cannot be certain and one cannot rely on a probation committee to do that if no statutory guidance is given to it in the form of a formal discretionary power. Secondly, I wonder, and doubt, whether a proba- 754 tion committee would have the discretion and the power if there is no specific statutory discretion placed upon it.
For all these reasons I hope that the Home Secretary will feel able to accept the Amendment.
§ 11.30 p.m.
§ Mr. Emlyn Hooson (Montgomery)
I also support the Amendment. I do not wish at this time of night to reiterate the arguments, but I accept in their entirety those which have been advanced by the right hon. and learned Member for Newport (Sir F. Soskice) and the hon. and learned Member for Derby, North (Mr. MacDermot).
It seems that our greatest hope for the reform of the offender, particularly the juvenile offender, lies in the work of the probation officers. I ask the Home Secretary what real argument he can provide to satisfy the probation officer for not including him in this indemnity? The work of the probation officer by its nature involves at times a spot decision or judgment to be taken in difficult circumstances. That kind of decision, especially when taken by a young man, may involve him in a threat of legal proceedings. It is important that the probation officer in his work should feel secure, should feel that as an officer of the court in discharging his duty to the court he can do so without risk, so far as it is possible to discharge it beyond risk.
I entirely take the point made by the hon. and learned Member for Derby, North that in all probability a probation committee would stand behind a probation officer, but that is not enough. The probation officer in the discharge of his duties should feel confidently that there is a statutory provision providing him with the indemnity, or at least the possibility of indemnity, such as would extend, if the Bill becomes law, to justices of the peace and justices' clerks. The probation officer would find it very difficult to understand why the Home Secretary would refuse this Amendment. If there is any good reason, I am unable to discern it. I hope the right hon. Gentleman will be able to accept the Amendment.
§ Mr. Brooke
I think the whole House will agree that those who carry on their duties as public servants should be 755 assured that they can do what they believe right in the furtherance of their duties with confidence that they will not have to pay out of their own pockets should they, while working in perfectly good faith, nevertheless be sued. I am delighted as Home Secretary that at long last everybody seems now to be recognising more and more warmly the importance and devotion of the probation service. My own conviction is that it is the building up of the probation service which will as the years go by be one of the finest protections against those who are tempted to crime from lapsing deeply into crime, one of our finest contributions against those who have committed crime and been sent to prison reverting to a criminal life after their discharge.
The question here is whether an exact parallel exists between probation officers on the one hand and justices and justices' clerks on the other which would make it proper for this Clause to cover probation officers when sued as it covers justices and their clerks when sued. It is important to bear in mind that what we are doing in Clause 27 is to give effect to a recommendation of the Working Party on expenses of legal proceedings against justices and their clerks, a Working Party which reported in 1961, that provision should be made to indemnify them against costs incurred and damages awarded in proceedings against them in respect of anything done in the exercise of the duties of their office.
I am glad that the House and the Standing Committee were entirely agreed that it was right to make this provision in Clause 27, but I am bound to point out that the reasons for providing thus by Statute for the indemnification of justices and their clerks do not apply to probation officers. Until the Bill becomes law the position is that no means exist to indemnify justices' clerks; and the means which exist for justices are judged to be unsatisfactory. We are, therefore, trying to put them on to a proper basis by the Clause.
For probation officers the means of indemnifying them are already available under the Probation Rules. In the only case known to the Home Office of a claim made against a probation officer for damages in respect of some action he had taken in the course of his duties, these means were used. The costs were borne 756 by the probation committee concerned and there is every reason to suppose that in any similar case the probation committee would likewise stand behind its probation officer.
§ Mr. MacDermot
Could the right hon. Gentleman assist the House on the scope of the existing powers of indemnity? Do they extend to a case where a probation officer has gone outside the scope of his authority and has, say, acted ultra vires, but has done so bona fide? My earlier remarks were concerned with special provisions to cover such a situation to ensure that there would still be the power of indemnity. Do the Probation Rules cover that sort of case?
§ Mr. Brooke
I thought that the hon. and learned Gentleman was quoting a different set of cases where there were exemptions for officers performing statutory functions. That is a different situation and—
§ Mr. Brooke
I think I am right in saying that under the Probation Rules a probation committee can indemnify or reimburse the probation officer when he is acting in good faith in the discharge of his duty. A member of the public could sue the probation committee for the torts of one of its probation officers because probation officers are the servants of the probation committee, but there is no such relationship in the case of justices and their clerks. Neither justices nor justices' clerks are the servants of the magistrates' courts committees or any other committee and there is, therefore, a clear distinction between those for whom we are rightly providing in the Clause and the probation officers, whom the Amendment seeks to include.
I have made the point that we are in the Clause giving effect to a recommendation of the Working Party. The National Association of Probation Officers, a body for which I have the 757 greatest respect, made representations—similar to those which have been so eloquently made tonight—to the Morison Committee on the Probation Service, arguing that there should be some statutory form for the indemnification of probation officers. By common consent, the Morison Committee went closely, thoroughly and sympathetically into everything connected with the probation service. Indeed, that Committee proved itself a good friend of the probation service. But in its Report it did not recommend any provision for indemnifying probation officers, that is to say it was not convinced by the type of argument which has been so persuasively adduced today and which was equally persuasively adduced by the National Association of Probation Officers at the time.
I think that that is significant and is proof that this is not just the Government trying to be parsimonious or obstinate. It is quite clearly not on grounds of expense that I would advise the House not to accept the Amendment, because, as I have said, there is only one known case and if there are further cases I would have every belief that the probation committee concerned would stand behind the probation officer. The Morison Committee was an impartial and most authoritative body and it had this evidence from the National Association of Probation Officers on the same lines as the case that has been presented today, and the Morison Committee was not convinced by it.
As far as I am aware, nothing has occurred since that Committee's Report in 1962 that would change the situation and, for the reasons that I have stated, I feel that it is right for the Government tonight to reach the same conclusion as the independent Morison Committee reached in 1962, that there is no need for specific statutory provisions for the indemnification of probation officers. I hope that the officers and their Association will feel confident that probation committees will stand behind their probation officers in any such circumstances as have been described. This is indeed supported by the one case that has occurred.
§ Sir F. Soskice
Is the right hon. Gentleman saying or not that at the moment probation officers have some statutory 758 right to indemnity or a right to indemnity under a rule—and he referred to the Probation Rules—which has statutory force, or is he simply saying that there is some informal discretionary arrangement under which they may or may not obtain indemnity in the exercise of their duties? If there is no right to indemnity, can the right hon. Gentleman say—whatever the Morison Committee thought—what is the justification for giving it to magistrates' clerks and withholding a statutory right of indemnity from probation officers?
§ Mr. Brooke
I was not seeking to say that probation officers had a statutory right to indemnity. I was saying that under the Probation Rules there is means of indemnifying probation officers, and in the one case that is known to have occurred that was effective and the probation officer was reimbursed. If I may go into slightly greater detail, the position is that under one of the Probation Rules the Home Secretary may authorise payment of any expenses by a probation committee. This discretionary payment is at large. It is not limited to cases where it is proved that the probation officer was acting in accordance with the instructions of his committee. It would cover indemnity for any liability whether it was within the course of the probaton officer's actions in carrying out his employers' duties or not. It is completely at large.
I am certainly saying on behalf of the Government that in every case where a probation officer was acting in good faith and was sued and became liable to damages or costs I would wish the committee to stand behind the probation officer and indemnify him or her. I am also saying that in any such case where a probation committee felt that the probation officer had been acting in good faith and wished to make a payment to indemnify the officer, then I, as Home Secretary, would, under the Probation Rules, authorise that payment to be made. I feel quite sure that what I am saying would be endorsed and sustained by any of my successors.
§ 11.45 p.m.
§ Mr. Hooson
Do I understand that, under the Probation Rules, a probation committee would have the right to agree to indemnify or reimburse a probation officer before a legal action were brought 759 against him and not only after it had been brought? The right hon. Gentleman will appreciate that what we are more concerned about is removing the anxiety which is attendant upon a threat of legal action against a probation officer in the course of his work. It would be a great help if the right hon. Gentleman could assure us that a probation committee can give the necessary backing to a probation officer under threat of legal proceedings and before any action is brought.
§ Mr. Brooke
Certainly, yes; and probation committees and probation officers will be able to read my words this evening. It would not be necessary for a probation committee to say to a probation officer, "We cannot take cognisance of this matter until the case is over and you are found to be out of pocket".
I could not encourage probation committees to say to their officers that whatever they did, in any circumstances, whether acting in good faith or not, they would stand behind them. It would be most undesirable and bad for the reputation of the probation service. But I hope that probation committees and probation officers will read the words I have used tonight. I think that they will find them reassuring.
§ Amendment negatived.