Clause 40.—(PROCEDURE OF TRIBUNALS.) (Hansard, 21 July 1965)

§ Mr. Ronald Bell
I beg to move Amendment No. 106, Clause 40, in page 33, line 14, at the end to insert: (f) for a reference under section 4A of the Contracts of Employment Act 1963 to be reheard by way of appeal, at the suit of any party to the reference, by a tribunal constituted of persons who did not take in the determination which is the subject of the appeal. All those words would be governed by the opening words of subsection (2), which are: The regulations to be made under this section may, in particular, include provision and there is a list of the particular matters for which provision may be made. The effect of the Amendment would be to allow there to be set up an appeal tribunal in respect of references under Section 4A of the Contracts of Employment Act.
Section 4A of that Act has been added to this Bill. I think that both sides of the House are agreed about the need for that section, because it removes the criminal sanctions which until now attached to the failure to give written particulars of the contract of employment to the employee.
It is important that an employer should give those written particulars to an employee within the period which is prescribed by the Contracts of Employment Act, but this requirement, which rightly falls on the employer, is not one which is very appropriate for criminal remedies. It is much more satisfactory that a failure on the part of an employer to provide the particulars should be dealt 1776 with, as in fact is proposed in the new Section 4A, by an appeal by the em-) ployee to a tribunal, and on such appeal the tribunal can order such particulars as it thinks appropriate to form the statement of the contract of employment.
This is a procedure which I think commands general approval. Under the criminal procedure which is in force now, there exists the usual right of appeal. Under the procedure provided in Section 4A there is only recourse to the tribunal which, by virtue of other provisions in the Bill and in the Industrial Training Act, is one of the tribunals set up under that Act.
The position could be somewhat difficult for either an employee or an employer. Let us suppose that the tribunal reaches conclusions about the terms of the contract of employment which seem to either the employee or the employer to be mistaken. They are then recorded as being the settlement required to be made under the Contracts of Employment Act, but they would also have considerable persuasive or evidential effect as to the actual terms of the contract of employment, and on the terms of that contract of employment a lot might turn—perhaps a considerable sum of money, or an entitlement to holidays, pensions, or other benefits, all of which are provided as matters to be covered by the statement of particulars.
It seemed wrong to us and to those who are engaged in industry that there should be no appeal on facts from a relatively humble tribunal. I am sure that it will be a very good tribunal and that it will perform very useful work, but it is not normal in our jurisprudence to entrust the final decision upon civil matters—or even criminal matters—to tribunals of this character, without appeal. The Amendment is designed to provide a modest appeal. It is bound to be modest; I would have found some difficulty in getting it in order if it had been more ambitious, because the Long Title precludes any attempt to set up a new court.
Therefore, the Amendment proposes that the power to make regulations under Clause 40, which allows the Minister to regulate the procedure of these tribunals, shall include a power to authorise a rehearing of one of these appeals before a similar tribunal. It must be a similar 1777 tribunal to keep inside the terms of the Long Title, but it will be constituted of different persons—in other words, other members of the panel, so that if either the employer or the employee is dissatisfied with the first adjudication he can appeal to a second tribunal, which will have the advantage which any tribunal of appeal has, of reviewing the work done by other people and having the opportunity of second thoughts.
This is a very modest proposal, which I hope will commend itself to the Government. What I have said as to the form of it, and the reason for its form, will show that we do not attach any great importance to the wording, and that if an assurance were forthcoming the Amendment would be withdrawn.
To complete the picture I should say that there is already an appeal from a tribunal to the High Court on a point of law, but that is a different matter, and not the kind of thing that I have in mind here. The Solicitor-General will recognise that there is some force in the consideration which I have been putting forward. It is of great importance that the particulars of a contract of employment should not be wrongly recorded. I hope, therefore, that the Government will give consideration to this matter, accepting the Amendment if they feel able to do so, but otherwise giving us the assurance we seek that, in another place—as this matter arises out of the change they are introducing in the Bill of moving from the existing procedure of the ordinary courts to the tribunals under the Industrial Training Act—some appropriate provision of this kind can be made.

§ The Solicitor-General
The hon. Gentleman has moved the Amendment in very reasonable and persuasive terms. I agree with him that subsection (4,a) represents a considerable improvement and that when we are dealing with this kind of matter it would be far better to have civil rather than criminal proceedings. But the change from criminal to civil proceedings has a bearing on the question of appeal. When someone is convicted of a criminal offence, even if it is only a technical offence, obviously, there should be recourse to some kind of appellant tribunal.
We would all accept that, but somewhat different considerations arise when we are 1778 dealing with a tribunal which decides a civil matter. We are not, under the Bill, setting up new tribunals: we are merely extending the functions of existing tribunals. The interpretation Clause says that "tribunal" means a tribunal established under the Industrial Training Act, 1964.
There is already a right of appeal from those tribunals on a point of law. It so happens that an order under Section 10 of the Tribunals and Inquiries Act, 1958, was made by my noble Friend the Lord Chancellor and my right hon. Friend the Secretary of State for Scotland on 13th July last, which comes into operation today. That is very good timing. The effect of the order is to confer a right of appeal on a point of law from the industrial tribunals to the High Court in England and to the Court of Session in Scotland. To that extent, the right of appeal is already provided.
The effect of the Amendment would be to go a little further and to provide not for an appeal to a superior tribunal, but for a rehearing on a question of fact. We have various courts from which there is no appeal on questions of fact. There is no appeal on questions of fact from a county court without leave and there is no appeal on questions of fact from the decisions of the Official Referee. It is not thought desirable that in every case we should allow an appeal on a question of fact. Most appeals are confined to a question of law. But what the hon. Gentleman is suggesting is not an appeal on a question of fact to a higher court, but a rehearing by a panel simply of equal authority to those who arrived at the original decision. That would be a novel principle to introduce into our law. It would make for delay and confusion
Therefore, although I appreciate what the hon. Gentleman has in mind I suggest to the House that, on balance, the Amendment should be rejected.

§ Mr. Ronald Bell
I did point out that the reason for our proposing a rehearing by what would admittedly be a court of co-ordinate composition was simply that any other proposal would have been out of order as not falling within the Long Title. Our proposal had to be in this form.
1779 I hoped that the Solicitor-General would address himself to the substance of the matter and indicate that the Government recognise that it was unsatisfactory that this jurisdiction, with its considerable consequences, should exist without any possibility of any appeal whatever by either party, in spite of the fact that the decision of the tribunal might—in practice would have—permitted a breach of contract, with all the considerable consequences one way or the other which would flow from that.

§ Mr. Thornton
I beg to move Amendment No. 72, Clause 40, in page 33, line 22, to leave out from "1964" to end of line 23 and insert: other than allowances payable to members of tribunals or assessors".

Mr. Deputy-Speaker
It would be convenient to discuss at the same time Government Amendments No. 73, No. 86 and No. 105.

§ Mr. Thornton
The purpose is to make it clear beyond doubt that the Minister's power to pay allowances in connection with the tribunal hearings extends to the category of people we have always intended should be covered.