HC Deb 16 July 1965 vol 716 cc1031-8
Sir J. Hobson

I beg to move Amendment No. 38, Clause 3, in page 3, line 38, after "defendant" to insert: within the period of three years prior to the commencement of the proceedings".

Mr. Deputy-Speaker

With Amendment No. 38 it would be convenient also to consider the right hon. and learned Gentleman's Amendment No. 44, in Clause 4, page 4, line 13, at the beginning to insert: within the period of three years prior to the commencement of the proceedings".

Sir J. Hobson

The two Amendments have the same intent.

The Amendment was put down with the idea that there ought to be some form of limitation on the raising of these matters by the Attorney-General in the course of proceedings for an injunction, or by the Lord Advocate in Scotland. The right which we are creating is somewhat anomalous. I do not think that it is tort; it is certainly not a breach of contract. It seems to be a sort of statutory duty enforceable by special process. I think that it is universally accepted that it is in the interests of the State that there should be an end to litigation.

It would, I think, be unfortunate if people were to drag out events which were long past, to have them reventilated in the courts, particularly in matters of this sort, which are largely questions of emphasis and of attitude—such as whether the man looked very cross at the time, or how individuals saw things in the particular circumstances of particular events.

To have to call evidence all these long years afterwards seems to be quite wrong. I do not say that three years is the right period, but I would have thought that it was. It is the period within which one must bring an industrial injuries action. Unless a man starts the process for an industrial injury action within three years, he loses his right to bring that action. I think that six years is much too long, but, if we had no period at all, the matter could be brought up at any distance of time thereafter.

It may be said that the safeguard lies in the discretion of the Attorney-General and of the Lord-Advocate in Scotland who would not institute proceedings that were long past. On the other hand, it is useful, even for holders of offices such as those, to know that Parliament regards stale claims and stale litigation as unnecessary. I therefore put down the Amendment with a view to asking the Home Secretary and the representative of the Secretary of State for Scotland whether it would be desirable to have some limitation of the period after which matters of this kind ought to be buried and no longer litigated upon or brought before the courts.

Sir F. Soskice

I do not completely close my mind to the idea of some time limit, but I would not like to commit myself in any way now. After all, we are dealing with a course of conduct. It is not as though we are dealing with an isolated case. If the question before the court were a particular happening—the right hon. and learned Gentleman mentioned industrial injuries actions—I would have thought that there was a great deal to be said for stipulating a period of time, but, in the nature of things, one is considering something which is the opposite of that.

A course of conduct may spread over a considerable period of time. The right hon. and learned Gentleman measures his period of time back from the time when the proceedings are instituted. I would have thought that there might be cases in which that would have the result of excluding what would be relevant in the circumstances, though I agree that such cases would be rare.

My preference is to leave it to the discretion of the Attorney-General. I cannot conceive that it will be other than in the very rare and exceptional cases that the Attorney-General of the day will seek to stretch back into the past beyond some time limit. It is not easy to fix the appropriate time limit. Therefore, while I do not close my mind to it, I confess that on balance my inclination is against doing so at the moment.

One of the objectives of introducing the Attorney-General into the machinery of the Bill is to see that it is administered in a sensible way to achieve what is desired in the public interest. Whilst, therefore, I can hold no promise—my mind is not finally closed—I must say that my present inclination is to invite the House to reject the Amendment.

Sir J. Hobson

With the leave of the House, may I thank the Home Secretary for promising to consider the matter. I ask him to consider it also on the basis that while there would be a limitation of complaint against a course of conduct within the period, a course of conduct outside the three years would be admis- sible and relevant on the likelihood of persistence in the conduct. I would not want any statutory limitation to shut out past history, because it would be relevant as to whether there was likely to be repetition. But I think that there is something to be said that there must be a basis of some course of conduct during the three years.

I shall not take up further time on this matter. The Home Secretary has promised to consider it, and, with the leave of the House, I desire to withdraw the Amendment.

Amendment, by leave, withdrawn.

Sir J. Hobson

I beg to move Amendment No. 41, Clause 3, in page 4, line 10, to leave out "party" and to insert "parties to whom and".

The subsection deals with the admissibility in evidence of communications which have been made to the Race Relations Board, or any of the local conciliation committees, or any of its officers or servants. As at present drawn, the subsection says that provided the party who made the communication gives his consent the terms of the communication may be admitted in evidence. I would have thought that it was desirable not only that the consent of the person who made it, but the consent of the party to whom it was made, namely, the local conciliation committee, or the Board or its servants or agents, should also be given.

We know that the security which is given to a communication made to the police is given to ensure that people can, in secret and in confidence, make communications to the police, and that they will not subsequently be disclosed. It is particularly important also that secret communications which affect third parties, and which are given under the seal of secrecy, should not be disclosed, because if they are the result might be to dry up sources of information in the future.

It may be said that it is satisfactory if the party who makes the communication has to give consent, because anybody making a secret or confidential communication to the Board or to a conciliation committee knows that it will be secure and will not be given in evidence in the future unless he consents. I accept the strength of that argument. On the other hand, there may be circumstances in which a person who has changed his mind, and changed his attitude, and who wishes to damage a third party may be anxious to give his consent to a communication becoming public and admitted in evidence but it may be highly disadvantageous to the Board and to its officers for such a course to be taken by a person on whose information the Board has relied, particularly when it might affect a third party.

I do not think that the consequences of the Amendment would be very serious, because one would naturally expect the Board and its officers and servants, or the conciliation committee, to act responsibly and to choose carefully the circumstances when it was in the public interest not to disclose the communication if the other party was willing to give his consent. My only anxiety is that we may not see far enough, and that there may be conditions in which a person who has made a communication changes his attitude. The communication will have been given and received within the bounds of confidentiality. It may be that the Board itself wants to maintain that confidentiality, but the Clause as drawn will not enable it to do so. If the need for confidentiality has disappeared, the Board can consent, also. It is with this idea in mind that I tabled the Amendment.

Sir F. Soskice

I feel that the Amendment ought not to be accepted and I shall tell the House why. Clearly, one would have thought that if a person against whom a complaint was made wished to make a statement to a conciliation committee, he should be able to impress on that statement the seal of confidentiality. It is only fair, in his own interests, that he should be able to do so. The Amendment would go on to provide that that statement should not, in any context, whoever wished to use it, be available in proceedings in the county court or in the High Court.

That might be unfair to the person who made it. I take the case in which it might be said against a defendant that he sought to justify his refusal to provide facilities on the ground, for example, that the customer—assuming that this is a publican—had behaved in a disorderly manner. It might be said that that was an excuse which he has trumped up at the last moment, and that he had not raised it at the time. He could then say, "I did raise it at the time. At the first moment when I was asked to give my explanation before the conciliation committee, that is what I said. I said that I had refused to serve this customer on no other ground than that he was behaving in an obstreperous manner".

It seems to me that if the statement should not be admissible unless the person against whose behaviour it reflects also gives his consent, we might be putting on the person against whom the complaint is made a very unfair incubus. He might be inhibited from being able fairly to deploy his case before the court. I should feel difficulty in accepting the Amendment.

2.30 p.m.

I would add, however, that the whole of this business is in the control of the Attorney-General. It is for the Attorney-General to tender what evidence he thinks it right to tender before the court. That evidence must comply with the rules of evidence. He could not tender a statement which, for one reason or other, was not evidence in accordance with the ordinary rules of the court. But, in addition, he uses his discretion. That is the point of bringing in the assistance of a person charged with high responsibility in order to facilitate the purpose of the Act and the proceedings of the court. The Attorney-General will exercise his discretion in this matter, but if the consent of the person against whom the allegation is made is also required at the time it may occasionally make for injustice.

Sir J. Hobson

It was never my intention that the two parties who should consent should be the complainant and the person against whom the complaint is made; the two parties should be the person who makes the complaint and the receiver of the statement. The receiver of the complaint will be a member of the Race Relations Board or a local conciliation committee officer. It is only the maker of the complaint plus the official of the Board or the local committee; who should have to consent.

Sir F. Soskice

I agree that the Amendment is more limited and slightly different in scope from the interpretation that I put upon it, but it must surely be a matter for the Attorney-General to say what evidence he will tender. I should have thought that it would be highly undesirable that when the conduct of the proceedings is in the hands of the Attorney-General a conciliation committee or the Board should be able to tie his hands. The only occasion on which his hands should be tied should be the occasion when the person who makes the statement objects to its being used against him, because it has been given under the seal of confidence. For a conciliation committee to say to the Attorney-General, "We shall tell you what evidence you can tender," would be utterly unacceptable. This should be left to the Attorney-General.

Amendment negatived.

Sir J. Hobson

I beg to move Amendment No. 42, Clause 3, in page 4, line 10, at the end to insert: (4) If any party to any civil proceedings for the enforcement of section 1 of the Act brought in a county court is dissatisfied with the determination or direction of the judge or jury on any question of fact or law or upon the admission or rejection of any evidence the party aggrieved by the judgment direction or order of the court may appeal therefrom to the Court of Appeal in such manner and subject to such conditions as may be for the time being provided by the rules of the Supreme Court. This is a rather technical matter. As I understand it, the Bill does not create a tort or breach of contract. If so, and if all that we have is a statutory duty, enforceable by a special process, the right of appeal, if the proceedings are brought in a county court, would appear to be limited to questions of law only. It is only when there is a breach of contract or a tort and the amount of damages is above a certain level that a person has the right of appeal to the Court of Appeal on questions of fact.

I have drawn the Amendment wide to make it plain that every matter can be raised on appeal from the county court. If I am right—I may be wrong, and I shall be glad of the advice of the Solicitor-General on this point—under the Bill as it stands there would be an appeal from the county court in the case of an action seeking an injuction by the Attorney-General on questions of law only. In my view that ought to be widened to include appeals on questions of fact. The Attorney-General himself might think that a county court judge had taken a completely wrong view of the facts. I would have thought that in such a case the appeal ought to be both on law and on fact, and it was in order to secure that that I put down the Amendment. I realise that it is capable of some improvement in drafting.

Sir F. Soskice

The advice that I have received is that the position is as the right hon. and learned Gentleman has stated it, namely, that Clause 1 does not create a new tort. As a result, in a case which was heard in the county court there would be no appeal on fact to the court of appeal. I should like to consider whether we ought to introduce such a right of appeal. I do not think that the arguments are all one way. They need careful balancing.

If there is a right of appeal, there must be a right of appeal on both sides. The Attorney-General must have a right of appeal, as well as the person against whom the complaint is made. If the matter rests as it is, and if a case is brought within a county court, there will be more finality. There will be no right of appeal on fact, although there will be in law. If we gave a right of appeal on fact by statute, a person against whom a complaint was made might find himself taken to the court of appeal by the Attorney-General. Whether that is a proper result is open to question. It might be that the defendant should be given the option of having the case referred to the High Court if it is brought in the county court.

It is our desire that proceedings should be as simple as possible, and should not drag on or involve expense. Some expense is bound to be involved, but resort to a county court should result in an inexpensive hearing, and it is open to question whether a matter which probably would be a fairly simple issue of fact should be one which could be again canvassed in the Court of Appeal and perhaps the House of Lords.

I will consider the matter. I agree that under the Clause as drafted there is at the moment no right of appeal from the county court.

Sir J. Hobson

I thank the right hon. and learned Gentleman for what he has said, and in the circumstances I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.