NATIONAL INSURANCE COMMISSIONERS (APPEALS) (Hansard, 22 July 1964)

§ Sir Martin Lindsay (Solihull)

The House of Commons has always been regarded as the guardian of the privileges of our people, and I make no apology for raising tonight the personal case of a constituent of mine in Solihull, Mr. Latham. Mr. Latham retired from in-industry last year, and three months later he took up temporary work. His claim for a retirement pension during the three months between the date on which he retired and the date on which he took up temporary work has been refused.

Fortunately, neither the Minister nor the Parliamentary Secretary—nor I—has to adjudicate on the question of whether Mr. Latham's claim should succeed. We have machinery to decide such questions, and Mr. Latham's case has gone to a National Insurance Commissioner on appeal. It is the procedure for this appeal which is the subject of my complaint tonight. Mr. Latham has asked to be allowed to appear before the Commissioner in person and the Commissioner has refused to allow him to do so, which I regard as a most reprehensible decision.

The relevant statutory provision is Regulation No. 16(1) of the National Insurance (Determination of Claims and Questions) Regulations, 1948, which reads: If any person to or by whom notice of appeal is given makes a request to the Commissioner for an oral hearing of the appeal, the Commissioner shall grant such request unless, after considering the record of the case and the reasons put forward in the request for the hearing, he is satisfied that the appeal can properly be determined without a hearing, in which event he shall so inform the claimant in writing and may proceed to determine the case without a hearing". Mr. Latham's request to appear in person has been turned down and the Commissioner has said that he is satisfied—a rather pompous phrase—that the appeal can be determined without an oral hearing. But surely what is much more important is that the appellant should be satisfied that his case has been 653 properly heard. Not many people, however gifted they may be with the pen, can be confident that they can put a case so well in writing as they can if they are allowed to appear in person, to argue it for themselves and to answer questions.

Mr. Latham's comment upon the Commisisoner's decision not to allow him to appear in person is as follows: I doubt if it will have any more effect than my previous statement, in which case it will prove still further how low British justice has sunk in recent years and the extent to which our public officials will go to defend their staff, even if it means defrauding members of the public of their rights. These are certainly bitter words, but I find it completely understandable that my constituent feels so strongly about this matter.

What should be done about cases like this? I ask tonight that the Minister of Pensions and National Insurance should consider either amending the Regulations or writing to the Commissioners to say that he hopes that they will interpret the present Regulations in such a way that only the most extraordinary considerations will prevent their giving an oral hearing when one is requested. This is nothing less than a matter of justice, which must always take priority over administrative conveninece.

I hope that my hon. Friend the Joint Parliamentary Secretary will not say that the change for which I ask would put too great a burden upon the Commissioners. Last year, they were called upon to give 155 decisions on retirement pensions appeals, and in only 19 cases were they asked by appellants for oral hearings. Fourteen of these requests were granted. One wonders why the remaining five could not have been granted as well.

I go so far as to say that, in a democracy, no appeal—I emphasise that—no appeal should be heard by any authority whatever in the absence of the appellant if he wishes to be present. There would be an outcry if a man were to be prosecuted for theft or a woman were to be prosecuted for soliciting or shoplifting and the court then said that it was "satisfied" that the case could be decided in the absence of the accused and that he or she had no right to 654 appear in person. The principle here is precisely the same. My hon. Friend is a member of the Bar, trained in the law and concerned with the perennial search for justice. I trust that she will not try to defend any proposition other than the one I have put before the House tonight.

§ The Joint Parliamentary Secretary to the Ministry of Pensions and National Insurance (Mrs. Margaret Thatcher)

I am grateful to my hon. Friend the Member for Solihull (Sir M. Lindsay) for raising this most interesting point. As he so kindly said, I was trained at the Bar, as was the hon. and learned Member for Kettering (Mr. Mitchison), and one knows from one's training that everyone who ever appears before a court is always convinced of the justice of his own case.

My hon. Friend has compared the procedure in tribunals with that in the ordinary courts. The first point I make is that we have tribunals because the processes of courts are too expensive, too cumbersome, too formal or too slow for the kind of issues which arise between a Government Department and the citizen, Because the processes of the courts are not entirely suitable, we have to have a different set of adjudicating authorities to deal with National Insurance. There are differences in procedure, of course, arising out of the multitude of different questions to be determined, but, nevertheless, I agree that certain parallels can be drawn and comparisons can be made. However, if one is trying to do that, it is necessary to compare like with like.

I am convinced that one cannot compare the appellate jurisdiction of the Commissioner, who is the final appellate authority, with the jurisdiction of a court of first instance in the law. If one is attempting to draw a parallel, one must draw it all the way through. In the ordinary processes of the courts—my hon. Friend mentioned criminal proceedings— one would have a hearing at first instance, followed by a limited right to appeal to the Court of Criminal Appeal—an absolute right on a point of law and a limited right on a point of fact—followed by an even more limited right of appeal to the House of Lords. So the person may never get the right to appeal, let alone to appear in person at an appeal. 655 The parallel process in National Insurance is, first, a decision by the local insurance officer, without an oral hearing. That is followed by a first appeal to a local tribunal—the first appellant process. That is the point for which, for all practical purposes, the person has the right to be heard himself by way of an oral hearing. Beyond that he has an automatic right of appeal to the Commissioner regardless of whether the Commissioner would be bound by, say, an overriding statutory limitation and could not help, perhaps because the claim was out of time. So he has an automatic right of appeal which is not present in the criminal courts of law.

My hon. Friend mentioned that the process of justice was thought by his constituent to have fallen to a rather low ebb in recent times. There is a case in criminal law where the question can be determined without the person being heard. That arises under Section 15 of the Criminal Appeal Act, 1907, which is not the most modern of Acts: If it appears to the registrar that any notice of an appeal against a conviction, purporting to be on a ground of appeal which involves a question of law alone, does not show any substantial ground of appeal, the registrar may refer the appeal to the court for summary determination, and, where the case is so referred, the court may, if they consider that the appeal is frivolous or vexatious, and can be determined without adjourning the same for a full hearing, dismiss the appeal summarily, without calling on any persons to attend the hearing or to appear for the Crown thereon. So the question of the right of attending an oral hearing is not peculiar to the National Insurance Commissioner. From time to time various distinguished bodies have commented on the question of oral hearings before the National Insurance Tribunals and those under the old Insurance Acts. The first I want to refer to was by the Donoughmore Committee on Ministers' Powers which reported in 1932. It had not less than five K.C.s as members, one of whom later became Lord Chancellor. The Committee had this to say about oral hearings on page 79 of its Report: The second principle of natural justice is one which has two aspects, both of which are as applicable to quasi-judicial as to judicial decisions. No party ought to be condemned unheard; and if his right to be heard is to be a reality, he must know in good time the case which he has to meet. But on neither branch 656 of this principle can any particular procedure by which the party is informed of the case which he has to meet, or by which his evidence and argument are ' heard ', be regarded as fundamental. That a Minister or a Ministerial Tribunal does not conform to the procedure of the Courts in either respect imports no disregard of natural justice. There is, for instance, no natural right to an oral hearing. When the National Insurance Act came into operation the set of Regulations of which my hon. Friend spoke was referred to the National Insurance Advisory Committee, which is the body which advises the Minister on regulations and other matters. It considered the proposed Regulations and received representations of all kinds from many people. In paragraphs 54 and 55 of its Report, published on 1st June, 1948, in House of Commons Paper 144, it said: We have received representations that there should either be a right to an oral hearing in all cases or that the insured person should have an opportunity of being heard before his appeal is rejected by the Commissioner. We are agreed that to require oral hearings on every appeal to the Commissioner would cause serious delay. In those cases where the Commissioner on the information before him is prepared to decide in favour of the claimant an oral hearing would be superfluous. On the other hand, we recognise that it would not be possible to provide that the right to an oral hearing should be given only in those cases where the Commissioner had, on the evidence before him, reached a provisional decision to reject the appeal. The Committee went on to make certain criticisms, and then proposed, and in fact drafted, the Regulation now current, which was the one which my hon. Friend read out, which said that the Commissioner, if he were satisfied that the appeal could properly be determined without a hearing, could proceed so to determine.

So that was another authoritative consideration and statement on oral hearings, but perhaps the best known one is that of the Franks Committee on Administrative Tribunals and Enquiries, which reported in July, 1957. That for the first time recommended that there should be this automatic right of appeal to the Commissioner. Previously it had been only a restricted right of appeal. But having recommended that, the Committee went on, in paragraph 177, to say: The Commissioner should, however, continue to have the right to refuse to grant an oral hearing of the appeal. He would no doubt consider an oral hearing unnecessary where the 657 question at issue had already been determined by him in a previous case or where the appeal appeared to be frivolous or vexatious. There were on that Committee three Queen's Counsel, one of whom is now a Lord Justice of Appeal. All those bodies considered the point about oral hearings very carefully, with the results which I have stated.

My hon. Friend has asked me if it would be possible to write to the Commissioner about how he should interpret this Regulation. I am afraid it would not be possible to do so, because the Commissioner is entirely independent of my right hon. Friend. He is appointed by the Crown on the recommendation of the Lord Chancellor. He has to be a barrister or advocate of at least 10 years' standing and, to give some idea of his status, his salary is in excess of that of a county court judge. So he is a fairly distinguished lawyer, and he is entirely independent of my right hon. Friend, and the way in which he exercises his discretion in this matter of oral hearings is for him and for him alone.

My hon. Friend referred to the number of decisions which come before the Commissioners for their determination. The Commissioners have to decide questions relating to National Insurance, family allowances and industrial injuries. In 1963 they decided 2,575 cases. In that number of cases there were 575 applications for an oral hearing, five of which were withdrawn, 485 of which were granted, and 85 of which were refused. I have no means of knowing why they were refused, and no influence in 658 persuading the Commissioners to the contrary.

It may give consolation to my hon. Friend to know that the Commissioner is, in fact, hearing a higher proportion of appeals orally than he was in 1960. So that may be some small help to my hon. Friend. I can well understand the feelings of an individual constituent who wants to appear personally, but for the reasons I have given I think that the present rules governing oral hearings are entirely defensible. I do not think that my right hon. Friend could fly in the face of the considered opinions of the three bodies which I have mentioned, all of which endorse the present rules regarding legal hearings, without referring the matter to the National Insurance Advisory Committee again or to the Council on Tribunals, which, since the Franks Committee, has had a general supervisory authority over this field.

I am sorry, therefore, to have to disappoint my hon. Friend, but I think he will know that no legal question is as simple as it appears at first sight. I would remind him that there is this automatic right of appeal to the Commissioner, and possibly if there were to be a right of oral hearing in every case, that automatic right would have to be reconsidered. I regret, therefore, that for the time being I can give no hope that there will be a change in the present Regulations.