§ Not amended (in the Standing Committee), considered.
§ Order for Third Reading read.
§ 10.0 p.m.
§ The Under-Secretary of State for Health and Education, Scottish Office (Mr. Hector Monro)
I beg to move, That the Bill be now read the Third time.
This short Bill, which is drawn very narrowly, has been fully discussed in Standing Committee and the main points have received close attention. I shall therefore speak only briefly about its provisions. In Committee my hon. Friend the Member for South Angus (Mr. BruceGardyne) endeavoured to make additions to the Bills. In the narrow terms of the Third Reading I cannot comment on them, though if necesary my right hon. and learned Friend will do so when winding up.
In short, the Bill is designed to clarify the Secretary of State's powers to make certain regulations and to remove any doubt about the application of a particular regulation relating to the employment of teachers by education authorities and grant-aided managers.
Clause 1(1) of the Bill provides that the Secretary of State's power under Section 1(2)—now Section 2—of the Education (Scotland) Act 1962 includes power, and has done so since 1st November 1965, to make regulations providing that registration—that is, with the General Teaching Council for Scotland—should be a condition of employment of teachers by education authorities. The need for this provision arises because the Court of Session has found that the powers in the Education (Scotland) Act 1962 to which I have referred are not adequate to make regulations prescribing registration as a condition of employment for certificated 1166 teachers who were already in employment at 1st April 1968.
It has been the policy of successive Governments since the passing of the Teaching Council (Scotland) Act 1965 that registration with the Teaching Council should be the mark of the qualified teacher, and the previous administration introduced a requirement that from 1st April 1968 all teachers in education authority and grant-aided schools—those previously certificated and already in post, in addition to those appointed subsequently—should be registered. From that time until the recent Court of Session judgment, it was commonly accepted that the requirement was valid, and education authorities, the council, and the teachers as well as the Government proceeded on the basis that it was.
Clearly, therefore, it is desirable that the deficiency should be remedied and that, for the very cogent reasons advanced by my right hon. and learned Friend the Lord Advocate in Standing Committee on 28th June 1973, the Bill should be retrospective. This the subsection achieves—that is, it does no more than restore the law to what it has been generally believed to be.
In Standing Committee I explained the term "compensation", which was generally acceptable to all hon. Members.
Clause 1(2) makes it clear that the Secretary of State has the same power concerning the prescription of registration in the grant-aided field as he has in relation to education authorities. This power has not been challenged, but, since the considerations are essentially the same as those in the State sector, it seems reasonable to put the position beyond doubt.
Lastly, subsection (3) is designed to make it clear that the amended regulation in the Schools (Scotland) Code which makes registration a condition of the employment of school teachers applies not only to future appointments but to teachers who were already in post when it took effect on 1st April 1968. This interpretation of the regulation has in fact been upheld by the Court of Session, but, as the matter is one upon which doubt could conceivably arise in the future, I think it desirable to include 1167 this provision in the usual form adopted in these circumstances.
Thus, as I hope I have made clear, this is a Bill deliberately short and aimed simply and necessarily at rectifying a recently discovered deficiency in the law. It makes no change whatever in what virtually everyone has thought the position to be since 1968 as was clearly indicated during the passage of the Bill in 1965.
No fresh obligation or requirement upon any teacher, authority or other interest is being introduced. I therefore confidently commend it to the House.
§ 10.5 p.m.
§ Mr. J. Bruce-Gardyne (South Angus)
My hon. Friend the Under-Secretary of State said that the purpose of the Bill was to clarify the powers of the Secretary of State. I think it is designed to do a good deal more, and I shall have something to say about that in a moment.
First of all, Mr. Speaker, while not for one moment questioning your selection or non-selection of amendments, because I know that I must not do that, I should like to ask whether one has any right to compliment you on the wisdom of your selection. I freely confess that the purpose of my new clause, which you did not select, is something which impinges indirectly on this problem of retrospection which lies at the heart of the Bill. I am sure that we shall, with respect to you, Mr. Speaker, have a more orderly discussion in the context of a Third Reading debate.
§ Mr. Speaker
Order. This is an interesting problem. The hon. Member is not allowed to question my selection: whether or not he can compliment me on it I am not sure.
§ Mr. Bruce-Gardyne It was for that very reason that I put my remarks in interrogatory form, Mr. Speaker, and I take your correction.
§ We had a fair amount of difficulty in Committee because, for reasons outwith the Committee's control and the control of my right hon. and learned Friend the Lord Advocate, we did not have the record of our proceedings as we went forward. It is a great relief that we now have that record, and that makes it easier for us to see exactly what have been the grounds on which the Govern- 1168 ment have sought to justify this legislation. I hope it will be in order, in view of the difficulties which have accrued over obtaining any record at all of our proceedings on the Bill, for me to say something for the benefit of those right hon. and hon. Members who did not serve in the Committee about what lies behind this measure.
§ I submit that the purpose of the Bill is perhaps not quite as my hon. Friend described it. Its purpose basically, as I see it, is to say that the laws and regulations approved by Parliament in 1962, 1965, 1966 and 1967 shall be deemed retrospectively to have the effect which the highest court of appeal in Scotland has found that they did not have—
§ Mr. Bruce-Gardyne
With respect, that is precisely what the Bill says, and I urge my hon. Friend to check it.
The whole problem has arisen because in 1963 the Wheatley Committee recommended the establishment of a General Teaching Council for all teachers in Scotland modelled very broadly on the General Medical Council for doctors. In 1965 the then Labour Government passed legislation—with all-party support, I do not dispute—which was designed to bring this recommendation into effect. This is what the leaders of the main teaching unions in Scotland said that the teachers wanted. It was assumed that they were talking for the rank and file, but we subsequently discovered that they were not.
It was at this point that the trouble arose, because a substantial section of the rank and file were so unhappy that they showed every intention of ignoring the General Teaching Council. So we had in 1967 the regulation which was designed to assert that all teachers must register with the General Teaching Council on pain of dismissal from their employment. Local authorities in Scotland were required by the right hon. Member for Kilmarnock (Mr. Ross) to hold the threat of dismissal over teachers who declined to register. In the end, 20 teachers were dismissed for failure to register.
At this point one of them, Mr. Malloch of Aberdeen, contested the right of the Government to take away the 1169 existing vested rights of a teacher who was already in the profession and whose qualifications were uncontested. He argued that the Government had no right to take away the vested rights which he enjoyed as a certificated teacher in the schools. At every stage through the courts he won his case on one point which was contested at every stage by the Labour Government, which was hardly surprising, and by my right hon. and hon. Friends, which was rather surprising. At the end of the day the Inner House of the Court of Session, in June of this year, found finally in his favour on the one major point.
Immediately, this Bill was tabled for Second Reading. The purposes of this Bill are, first, to override the judgment of the Inner House of the Court of Session: secondly, thereby to deprive one individual, and others in like condition, of a right which he obtained after a long legal contest against the whole might and majesty of the Government machine.
So this is legislation which we should view with the very greatest care, as we must always view any retrospective legislation, and, above all, any retrospective legislation which is designed to achieve purposes of this sort.
I make no secret—I have never made any secret—of my belief that the General Teaching Council is an incubus on the Scottish education system. Hon. Members on both sides have said that it is accepted by the teaching profession. I can only say that the arguments some of them have advanced in defence of the retrospective aspects of this legislation go a very long way to call in question that assumption, and I shall come to that in a few moments. Frankly—I make no secret of the fact—I would be delighted if the failure of this Bill were to terminate the existence of the General Teaching Council.
However, I submit that this is not the real issue which we have to decide on Third Reading. The real issue is whether the case for retrospection, which lies at the kernel of this Bill, is made out beyond dispute. I accept at once that there are precedents for retrospection of this kind, but the closest precedent for it was the War Damage Bill, which, as many of my hon. and right hon. Friends will recall, 1170 many of us marched into the Lobby to oppose with all the strength we could muster when the Labour Government introduced it in 1965. We did so for what were very good and sufficient reasons.
However, the points which my right hon. Friends have to establish to persuade the House to accept the case for a piece of retrospective legislation of this kind are two. I do not think my right hon. and learned Friend the Lord Advocate will dispute with me on this aspect, first, that Parliament always thought it was doing what the courts have now said it was not, and, second, that the impact of eliminating retrospection from the provisions of this Bill would be intolerable. I submit that unless both those propositions are sustained the case for retrospection must fall. In my view, the House can be satisfied on neither.
The first point is that Parliament knew what it was doing when it passed the legislation, and that it expected the consequences to follow which the courts have now said could not follow because of a fault in the drafting of that legislation. My right hon. and hon. Friends have argued, both in Committee and on Second Reading, that Parliament knew when it was passing the 1965 Act that compulsory registration for all teachers would automatically follow and that teachers who declined to register would be dismissed from their employment.
That is a matter about which I must beg to differ. We differed in Committee, and I do not see that we are likely to resolve the matter at this stage. My right hon. and hon. Friends and I have a different interpretation of what was in the mind of Parliament and what was said at that time. However, I shall not weary the House at this stage by going over that argument again, for it seems to me that there is an even more crucial issue on this part of the Government's case, an issue which has been drawn to my attention since the Committee stage of the Bill.
My hon. Friend the Member for Perth and East Perthshire (Mr. McArthur) in Committee picked me up on the question of fact as to whether Mr. Malloch had won his case on all grounds. By a slip of the tongue, I implied that he had, but I accept entirely that he had not. He was refuted in the proposition that his 1171 local authority was not entitled to dismiss him. He was further refuted on the proposition that the General Teaching Council was itself not in the interests of education in Scotland. I share that view, but the courts quite properly found that Parliament in its wisdom had presumably decided that the GTC was in the interests of education in Scotland, so that any claim that it was not was bound to fall. I think that one must accept that.
There is, however, the third point, and the issue here was most fairly summed up, I think, by my right hon. and learned Friend in Committee when he quoted from the judgment of the Lord Ordinary. He laid great emphasis on the judgment of the Lord Ordinary, and I shall therefore quote these words:I start from the premise that it is necessary to find in the 1962 Act"—to which reference is made in Clause 1(1) of the Billclear and unambiguous language evincing Parliament's intention to empower the Secretary of State to encroach on the vested rights of teachers in the way in which he has done.This is the crucial issue. Did Parliament intend the Secretary of State to encroach on the vested rights of teachers who were already in the profession?
Essentially, my case is that not only did Parliament not intend that but the right hon. Gentleman then Secretary of State himself did not intend it. This point has been drawn to my attention since we met in Committee, and it seems to me to be vital. My right hon. and learned Friend argued that the question of the vested rights of teachers in the profession at the time the legislation was passed was something of a technicality. I told him in Committee that I did not agree, but, whether it be technicality or not, it seems to me that for this part of the Government's case—that Parliament knew what it was doing in passing the substantive legislation—to stand up, it must be shown that Parliament thought that this technicality was covered when it passed it.
This is where we come to the rôle of the right hon. Member for Kilmarnock. The substantive legislation was passed in 1965. In October 1966 the Scottish Education Department, presumably speaking on behalf of the right hon. Member for Kilmarnock, sent a memorandum to the General Teaching Council on the subject of the registration of 1172 teachers already in employment in the schools. It said:If steps were taken in advance by the Secretary of State so to adjust various statutory regulations governing employment, salary and superannuation as to make the consequences of failure to register the deprivation of benefits under these regulations, such teachers might contest the propriety of such action on the ground that it infringed their existing 'rights'.I remind my right hon. and learned Friend what the courts have now found.
The memorandum continued:It will be borne in mind that this conception of the inviolability of existing 'rights' is an essential feature of regulatory provision regarding both teachers' salaries and superannuation and indeed contributes largely to the complexity of the provision.This evidently came as something of a shock to the General Teaching Council. It did not like it at all. It is recorded in the minutes for the debate which follows that several members emphasised that unless all or nearly all teachers registered, whether by compulsion or not, the council would have to depend for its income on disproportionately high fees from entrants or subventions from the Secretary of State.
I think that there was another calculation in the minds of the gentlemen of the General Teaching Council. I believe that they were horrified to discover that some of the rank and file of their own profession were objecting to their pretensions and were determined to teach the teachers a lesson, that lesson being that they should be made to register and to pay for the privilege of having their own conditions of employment changed unilaterally by the Secretary of State. But the important fact is that at this stage, one year after the substantive legislation—in which we are told that this House knew were provisions for the automatic withdrawal of entrenched rights—the Secretary of State was saying that he could not do what the council wanted him to do because that would involve the infringement of those entrenched rights and would therefore be ultra vires.
§ Mr. William Ross (Kilmarnock)
The hon. Member has this quite wrong. I have never resiled from the position that registration had to be compulsory. It was true under Wheatley and under the Act and was stated so. I was talking about their rights under the statute as we had passed it.
§ Mr. Bruce-Gardyne
The right hon. Gentleman has, among his other amiable and admirable qualities, a short memory. Let me read to him what the Scottish Education Department said on his behalf.
He may say that it was speaking without his authority but this is what it said:If steps were taken in advance by the Secretary of State so to adjust the various statutory regulations governing employment … that such teachers might contest the propriety of such action on the ground that it infringed their existing rights.This is what the argument has been about.
§ Mr. Ross rose—
§ Mr. Bruce-Gardyne
I shall not give way yet. The right hon. Gentleman must wait until I have finished. What he was saying, and this was clearly spelt out—and I cannot see how he can argue the point—was that if he did what the General Teaching Council asked him to do and imposed upon teachers already in the profession a change in their professional status and required them to pay for that change he would be infringing their entrenched rights and they might be entitled to redress at law against him. That was the case he was making.
§ Mr. Ross
I would have been grateful if the hon. Member had given me notice that he intended to raise this matter so that I would have had an opportunity of studying the relevant papers and documents. If he had done so he would also have done his own case good because it would have been in better standing. Resting upon my present recollection in this matter, I never moved from the position that compulsory registration was essential, and from that I never resiled. That applied to teachers in service as well as to those who were joining the service afresh.
§ Mr. Bruce-Gardyne
I will quote another passage which will perhaps put the matter beyond doubt. The minutes of the General Teaching Council for 28th October 1966 state:The Secretary of State was perfectly willing to implement this recommendation—the recommendation in paragraph 128 of the Wheatley Report that registration with the council be obligatory on all teachers who wished to claim entitle- 1174 ment to the benefits conferred by certificated statuswithout reservation as far as the new entrants were concerned but was of the opinion that existing teachers must be registered either free of charge or for a merely nominal fee.That is the point:must be registered free of charge or for a merely nominal fee".
§ Mr. Ross rose—
§ Mr. Bruce-Gardyne
The right hon. Gentleman must wait until I finish the passage. The minutes continued:In reaching this decision the Secretary of State was mindful that teachers had reserved rights and that he considered it inequitable that they should be asked to pay to preserve these rights".That is precisely the point that the courts have now decided the Government had no right to do. We now know clearly from this evidence that the right hon. Gentleman himself knew that he had no right to impose that obligation.
§ The Lord Advocate (Mr. Norman Wylie)
My hon. Friend is not being fair to the right hon. Member for Kilmarnock (Mr. Ross). The whole issue in that paragraph, fairly read, is that the only discussion at that time was whether or not there should be a charge. There was never any question, in terms of that minute, of whether or not teachers must be registered.
§ Mr. Bruce-Gardyne
My right and learned Friend has overlooked the whole basis of the judgment of successive courts, including the judgment of the Lord Ordinary.
§ Mr. Bruce-Gardyne
The fact is that Mr. Malloch won his case in saying that the Secretary of State was acting ultra vires in changing the conditions of his employment and charging him a fee for registration. That is at the kernel of the argument. The minutes of the council show that the right hon. Gentleman knew that he was acting ultra vires and that was why he did not wish to do it. What happened thereafter was that the council told him not to be a silly billy, that it would not work on that basis, that it could not be expected to operate on the basis of being financed by new entrants to the profession and subsidised by him, 1175 and that, therefore, all teachers in the profession must be obliged to register and pay a fee for registration whether or not it affected their entrenched rights.
That is the decision to which the right hon. Gentleman finally decided to bow after months of understandably dithering about what he was to do in that predicament. He and the Scottish Education Department knew perfectly well at the time that they were seeking to pass a regulation which was ultra vires and just hoped that nobody would challenge it.
§ Mr. Michael Noble (Argyll)
I have been listening carefully, because to a minor extent I was involved in the matter at an earlier stage. The point that I understand my hon. Friend to be trying to put is that the House passed the legislation believing something that was not true. That is not so. We may or may not have liked it. but the right hon. Member for Kilmarnock (Mr. Ross) told us over and over again during the passage of the legislation that it was so. He may have had other doubts and may have said other things at other places, but the House was told that this would happen.
§ Mr. Bruce-Gardyne
I do not accept my right hon. Friend's recollection. The essence of the argument when we were passing the original legislation in 1965 was whether uncertificated teachers would be allowed to continue in the profession. There was no mention at any stage of changing the entrenched rights of teachers already in the profession. I have gone through the minutes time and time again and there is no reference to any infringements of the entrenched rights of teachers then in the profession, yet the right hon. Gentleman was saying a year after we passed the legislation that it could not be done because the entrenched rights of teachers already in the profession would be infringed.
§ Mr. Ross
The Department was acting for me. The hon. Gentleman has not given me the opportunity to look at the minutes but it is quite clear what I said—namely, that they must be registered. That is the main point. It was the compulsion of registration which led to the amendment of the regulations under the 1962 Act.
I am sorry; I think that the right lion. Gentleman has 1176 again got it wrong. The main point which the courts have decided is that he was acting ultra vires in infringing the entrenched rights of teachers already in the profession. In his letter to the GTC he said that he could not charge the teachers in the profession a £1 registration fee because that would infringe their entrenched rights. It seems on those grounds in particular that the Government's case must be said to fall.
My right hon. and learned Friend, when I drew his attention to the evidence of the minutes of the GTC, said in reply "But the Wheatley Committee had all along recognised that entrenched rights would have to be infringed." Of course, the Wheatley Committee does not make legislation, nor does any other committee. It is this House which makes legislation. I do not accept that the then Secretary of State believed that he could not do what the General Teaching Council required because it would infringe entrenched rights of teachers already in the profession. Further, we cannot now be asked to accept that that was what Parliament intended all along.
I sympathise with the right hon. Gentleman in the pickle into which he got himself, but I cannot condone what he did. I do not believe for one moment that the need to condone what he did to get him out of the mess into which he got himself is sufficient justification for asking the House to pass retrospective legislation.
I now turn to the effect which the elimination of retrospective provisions of the legislation could be expected to have. My right hon. and learned Friend argued that a number of consequences would follow. He said that the General Teaching Council might be considered to have been in almost illegal existence since it was established. I cannot pretend that that is a prospect which fills me with despair. It would, however, be perfectly open to the Government to re-establish it prospectively if the legislation were passed with the retrospective element in it.
My right hon. and learned Friend argued that tens of thousands of teachers who have paid the registration fee, believing that they had to do so, since 1971 when it started to be deducted at source, 1177 or right back to 1968, could demand their money back. If that is the prospect, it throws a certain amount of doubt on the proposition that the teaching profession in Scotland is wholeheartedly behind the G.T.C. But, even if that were to happen, we are talking about the need to refund at a maximum £200,000.
I am not keen at any time to add to the burden of public expenditure and the Government's daunting borrowing requirement, but £200,000 is something which we could just about sustain bearing in mind the desirable side effects.
My right hon. and learned Friend produced in Committee an argument in favour of retrospection which we must take seriously. He said that if we did not have retrospection local authorities which since 1971 have been required by the Government to deduct the registration fees at source from teachers in their employment could be held to have been acting illegally and could be subject possibly to action for damages. I accept that it would be wholly improper that the ratepayers of Angus County Council, among whom I include myself, should be required to pay because Angus County Council chose to fulfil its legal obligation to deduct fees at source. That would be absolutely monstrous. It was with the objective of eliminating that problem that I tabled the new clause which was not selected. It is not beyond the wit of my right hon. and learned Friend, for whose legal powers I have the greatest possible respect, to draft an amendment or new clause for the other place designed to ensure that there was no risk of local authorities being put at financial risk because they had observed the requirements placed on them by the law in 1971 if the retrospective provisions of this legislation were removed.
I have two final points to make, one of them arising from the Committee stage, on a matter which should be cleared up. I am not sure that it has been cleared up. My right hon. and learned Friend, in an exchange with me which appears on page 21 of the report of the proceedings of the second Committee sitting, discussed the question of the putative entitlement to damages of individuals who had been sacked under the legislation which we are seeking, according to the 1178 Government, to re-establish if we pass the retrospective aspect of the Bill.
I put it to my right hon. and learned Friend:… if we did not have an element of retrospection, Mr. Malloch, having obtained judgment in his favour in the major issue, would theoretically have been able to sue the Government for damages, which he is not now able to do ".My right hon. and learned Friend said in reply:I do not think Mr. Malloch, on the basis of the proceedings so far, could institute a claim in law, because the Lord Ordinary and the court decided on appeal that the employing authority was entitled, in the exercise of its discretion, to dismiss him.But he did not seem able to refute the proposition that if we include the retrospective elements in this Bill any entitlement to damages which individuals might otherwise have resulting from what had gone before—an entitlement which they have not yet established—would be wiped away. That is something which the House should take seriously.
If we pass the Bill—and I hope very much that we shall not—I do not believe that it will be the end of the battle. I draw my right hon. and learned Friend's attention to the judgment of Lord Migdale in the Inner House. It was given a week after the Bill was passed. In his judgment he drew attention to Section 147 of the Education (Scotland) Act 1962, which provides that… without prejudice to the … Interpretation Act, 1889—any … certificate … given under any enactment repealed by this Act shall if in force immediately before the commencement of this Act, continue in force …".I gather that there may even be a certain amount of doubt as to whether that judgment will lead my right hon. and learned Friend to face further legal action even if he persuades the House to carry this retrospective legislation. If he persists in his intention to try to extend compulsory registration to teachers in further education, I have no doubt that we shall have further legal battles.
The House must decide tonight whether we should go to the length of overriding the highest courts in Scotland and depriving individuals of a right which they have fought right through the courts to establish against the might of the Government machine in circumstances in 1179 which the right hon. Member for Kilmarnock can be shown to have known that the legislation was faulty when he introduced it and whether we should do it retrospectively to save the right hon. Gentleman's bacon. That is not for me, and I hope that it is not for the House.
§ 10.40 p.m.
§ Mr. J. Grimond (Orkney and Shetland)
This is a short Bill and I shall make a short speech, but that does not mean that I do not think it an important Bill. It is an important Bill in principle, and I think it a disreputable Bill. I cannot think that the Lord Advocate, who has a high legal reputation and who, like all Law Officers, is here to give impartial advice to the House of Commons, can be happy about it.
Because of the retrospective element, it is far worse than the Burmah Oil Bill.
§ Mr. Grimond
The hon. Member says, "Nonsense"; all I can say is that lack of the Burmah Oil Bill would have cost public funds some £70 million, while this Bill might cost them £200,000. A great phalanx of Conservatives opposed the Burmah Oil Bill bitterly.
The most sinister remark was made by the Minister when as part of his defence of the Bill he said that it was only putting the law back to what everyone thought it was. We must protest against that view of what can be done with the law. The law is not what someone thinks it is and still less what someone thought it was; the law is the law as passed by the House and interpreted by the courts, and the courts of Scotland have made quite clear what the law was and still is until the Bill is passed.
Furthermore, as the hon. Member for South Angus (Mr. Bruce-Gardyne) has pointed out—I do not intend to repeat his cogent arguments—there was at least a widespread understanding that teachers had established rights and that those rights were not being entrenched upon. Whether that was right or wrong I do not know, but certainly that was the feeling.
Therefore, we have a situation in which the highest court in Scotland has held that the law is as it stated, in which there is at least considerable evidence that there was considerable doubt as to what the 1180 Act in fact achieved. Now we retrospectively change the law because that is convenient to the Government.
On Second Reading I stated my view that all retrospective legislation was undesirable, but that usually a case could be made for it when it put some citizen in a better situation than he would otherwise have had. This is retrospective legislation that puts a small number of citizens, who have won their case up to the highest court in Scotland, in a worse position.
The Bill has earned the contempt of every professor of law in Scotland; it has caused perturbation in Scottish legal circles; and it is brought forward by a Government of a party that professes to be averse to this type of legislation.
No adequate case for the Bill has been made. It will bring the law into some disrepute; it will certainly bring the Government into some disrepute, and it will do no good to the reputation of the House.
§ 10.45 p.m.
§ Mr. Ian MacArthur (Perth and East Perthshire)
My hon. Friend the Member for South Angus (Mr. Bruce-Gardyne) and I approached this Bill in Committee with great caution. I remember that on that occasion the right hon. Member for Orkney and Shetland (Mr. Grimond) expressed severe doubts about it. With great respect to the right hon. Member, I make this point. All of us in this House must approach any retrospective measure with great caution because retrospective legislation is something which we all profoundly dislike.
I disagree with one comment of the right hon. Member. If a Bill is presented by a Government which simply states that the law was some years ago what everyone thought it was there is not much room for disagreement. Equally, the whole House would rightly throw out any proposal which set out to say that the law some years ago was different from what everyone thought it was. In this case the law was thought to be as it was by everyone, with the exception of Mr. Malloch at some stage thereafter. We can salute him for pursuing his case through the courts. I entirely agree that he lost one leg of his argument, but that was irrelevant. What he won was the 1181 central point, which was that the then Secretary of State had acted ultra vires in introducing the regulations of 1967.
§ Mr. Grimond
I totally reject the argument that the law of this country is what someone thought it was. If the hon. Gentleman thinks that, I trust that we will have his support over the interpretation of the law on immigrants, because the Race Relations Board and others have said that their understanding of the law is quite different from the Government's interpretation.
§ Mr. MacArthur
I must tell the right hon. Member that if the Liberal Party asked me to support anything I would look at it three times before rejecting it. The point is that it is not that some people thought that the law was so. I believe that every hon. and right hon. Member would accept that everyone in Scotland believed that the law was so.
§ Mr. MacArthur
The right hon. Member says "No". He did not say that at the time. If he believed that, why did he not get up and say so? It is all very well for the right hon. Gentleman to drift in and out of Committee in his agreeable way. He did not say a word about it at the time. He must have accepted the position. It is not for him, six years later, to come in and make this pleasant, elegant speech, throwing it aside, because with great respect to the right hon. Member, of whom we are fond, he is quite wrong.
I say to my hon. Friend the Member for South Angus, in the friendliest way, that we can argue until the cows come home whether he or I understood this or that about the implications of the Act which set up the General Teaching Council. I could not with my hand on my heart point to a date on the calendar, but I did know long before the regulations of 1967 were presented to the House that it was seriously proposed that teachers in Scotland should register with the GTC.
There cannot be serious doubt about that. I know my hon. Friend takes a different view. The critical point was the presentation of the regulations in 1967. The hon. Member for Glasgow, Craigton 1182 (Mr. Millan) was Under-Secretary at the time, and he will remember that we prayed against the regulation. I was on the Opposition Front Bench speaking for education in Scotland. I moved the Prayer, and the reason for doing so was not to object to the proposal of registration, because that, rightly or wrongly, had been accepted. It was certainly the view of the Educational Institute of Scotland and the Scottish Secondary Schoolmasters Association that that should be so. Equally, the SSA took a different view and felt that we should reject the proposal. But we decided to accept the position and we moved the Prayer because there were various points of uncertainty on which we wished to probe the Government.
During that debate I asked the Government how many teachers in Scotland had not already registered with the General Teaching Council. I am sure that the hon. Member for Craigton will forgive me and will accept what I am about to say. He said from the Government Front Bench that "very few" had not registered. In the light of that answer we decided to accept the position and withdrew the Prayer.
§ Mr. Bruce-Gardyne rose—
§ Mr. MacArthur
Perhaps I may go on with this important point, and then I will gladly give way to my hon. Friend.
At some stage thereafter I put down a Question to the right hon. Member for Kilmarnock (Mr. Ross), who was then the Secretary of State, and he told me that 1,200 teachers had not registered. That to me was not "very few". To put it mildly, we were upset that we had been misled, although I am sure the hon. Member for Craigton did not wish to mislead the House in any way.
The central issue seemed to be an argument which was being voiced noisily at that time: that teachers were not so much opposed to registration as to registration with a council about whose powers and composition they had certain doubts.
I then entered into correspondence with the right hon. Member for Kilmarnock, which he may recall, in which I said that I thought it would be wise and right if there could be a review of the powers 1183 and composition of the General Teaching Council. As I recall, the closing date was postponed, the right hon. Gentleman was good enough to institute this review, and certain minor modifications were proposed.
In the light of those modifications, on behalf of the Conservative Opposition I stated that we believed that any real objection to registration had been removed, and we advised teachers in Scotland to register with the GTC. Indeed, most of them did. At the end of the day about 19 teachers refused to register. I accept at once that many of those who registered did so reluctantly, but there was a pool of 19 who refused to register. We may say that they were foolish or misguided, but Mr. Malloch and the courts demonstrated that in their refusal they had legal right on their side. We did not believe that at the time, but we believe it now. The Government were acting in good faith ultra vires. Those 19 teachers lost their jobs because of the decision, but they were acting with right on their side, however misguided, foolish, or whatever we think they may be today.
§ Mr. Bruce-Gardyne
My hon. Friend has pursued his case from the passage of the 1967 regulations. Surely the whole essence of the Government's case is that the 1967 regulations followed, and were expected to follow, ineluctably from the passage of the 1965 Act. I submit that my hon. Friend must address himself to the evidence that the then Secretary of State, far from regarding the 1967 regulations as following ineluctably from the 1965 Act, actually regarded them as being ultra vires.
§ Mr. MacArthur
My hon. Friend may take that view. He and I are great friends, but we approach this problem with a certain difference of emphasis. I cannot speak for the right hon. Member for Kilmarnock. I should never wish to do so, nor would he ever wish me to speak for him. Whatever my hon. Friend says, it was clear to me long before the 1967 regulation that registration would be a requirement for teachers in Scotland.
§ Mr. MacArthur
It may not have been clear to my hon. Friend, but that was clear to me long before this regulation was presented to Parliament.
§ Mr. MacArthur
It is not usual for me to speak in support of the right hon. Gentleman, but on this occasion I must nod sympathetically in his support.
At the end of the day, 19 teachers lost their jobs. The hon. Member for Central Ayrshire (Mr. Lambie) suggested that some, if not most, of them were going to retire anyway. That may or may not be so, but I think it is irrelevant. The fact is that 19 teachers lost their jobs.
Perhaps I approached it in a mood of simple innocence, but it seemed to me that the only possible objection to the Bill was the effect that it would have on those 19 teachers who lost their jobs—I cannot see that anyone else is adversely affected—and it was for that reason that during the Second Reading upstairs I proposed that the Government should take special note of the position of those teachers who had lost their jobs. Because of a governmental edict that had been found by a court to have had no standing in law, my hon. Friend the Under-Secretary, in a most generous reply, said that that would be a matter for the Committee stage of the Bill, and with that semi-assurance I supported the Government on the Second Reading of the Bill.
§ Mr. MacArthur
Yes. In Committee I made the point again in rather more detail, and I was grateful to my hon. Friend for saying that compensation would be paid to all those teachers who had lost their jobs and could show that they had lost money in any way, and that included loss of pension rights, and so on.
I should make the point, because I do not think it has been apprehended outside the Scottish Standing Committee and one or two newspapers in Scotland, that the only people who will suffer because of the Bill are the 19 teachers who lost their jobs. The Government have accepted my proposals, supported by my hon. Friends the Members for Edinburgh, South (Mr. Clark Hutchison) and Bute and North 1185 Ayrshire (Sir F. Maclean) and others, that compensation should be paid to them, and those teachers who can show to the satisfaction of the local authorities which employ them that they have lost income or pension rights or in any other way will have that loss made up to them.
I must say to my hon. Friend—and I am sure that he understands this—that if the Government had not been able to give that assurance I should not have been able to support the Bill. That assurance removes any grounds for opposition to the Bill, much as I dislike retrospection. The Bill must be judged against the circumstances of the time. It must be judged against what we all believed in this House and what people throughout Scotland believed. We believed the position to be as laid down in the regulation. Mr. Malloch, with great credit to him, fought his case in the courts. He lost one leg of the argument, but he won the central point, which was to establish that the Secretary of State had acted ultra vires.
The Government have now recognised that there is a debt of honour to these 19 teachers, they are prepared to meet that debt, and, therefore, I believe that all grounds for opposition to the Bill have been removed.
§ 11.0 p.m.
§ Mr. Bruce Millan (Glasgow, Craigton)
As I was engaged in another Committee, unfortunately I was unable to attend the meeting of the Second Reading Committee or the proceedings of the Committee stage. I had not intended to intervene until I heard the speech of the hon. Member for South Angus (Mr. BruceGardyne).
I was the Under-Secretary of State responsible for handling matters affecting the General Teaching Council—responsible to my right hon. Friend the Member for Kilmarnock (Mr. Ross)—during most of the period concerned. I was not at the Scottish Office when the General Teaching Council Act 1965 went through and, therefore, I must be excluded from any blame or praise for whatever may have been said during the passage of the Bill.
The hon. Member for South Angus raised the question whether there was any need for certificated teachers to register 1186 with the General Teaching Council or whether it was intended that they should register to get the benefit of certificated status. When I went to the Scottish Office I checked on this carefully, and I say categorically that there is absolutely no doubt about that.
The Wheatley Committee in paragraph 128 of its report said:We therefore recommend that registration with the council be obligatory on all teachers who wish to claim entitlement to the benefits conferred by certificated status.These were the benefits of protection from dismissal, benefits of salary, superannuaion and so on. There is absolutely no doubt that when the General Teaching Council Bill went through the Government's intention, accepted by the teachers' associations, was that certificated teachers would be obliged to register with the General Teaching Council. The membership of the Wheatley Committee included representatives of all the three major teachers' associations in Scotland, including the SSA, which afterwards was violently opposed to the operation of the General Teaching Council. I wrote literally hundreds of letters to Members of Parliament and others when I was at the Scottish Office dealing with that specific matter, and there is absolutely no doubt about it.
The reason for my intervention is that the hon. Member for South Angus said that not only were the regulations ultra vires but that the Secretary of State had been advised and had accepted at some time prior to that that it would be illegal for him to make regulations of this sort. The hon. Gentleman substantiated that remark by quoting from the General Teaching Council minutes which had been obtained, legitimately, by Mr. Malloch and passed on to the hon. Gentleman and others. I say categorically that that is not the position. Never at any time was advice given to the Secretary of State that it would be illegal to introduce regulations of this sort. Any Secretary of State receiving that advice would have been culpable had he proceeded with the regulations. The Secretary of State never received that advice because it was never given to him.
The regulations and the whole subject of the General Teaching Council gave rise to considerable public controversy and subsequently to various court actions.
1187 At one time the Secretary of State himself took action against local authorities in connection with the implementation of the regulations. I was particularly careful to make sure on the advice that was available to us that everything that we had done and were doing stood on firm legal ground. If ultimately the courts have decided otherwise, one can say with hindsight and perhaps a little unfairly that the legal advice at some point must have been defective.
There is no question of the Secretary of State at any time being advised that there was any doubt about the way in which he was exercising what he and his advisers, legal and otherwise, believed to be his rights under the General Teaching Council Act and the regulations. If the hon. Gentleman will not accept that, that is a great pity. That happens to be the situation.
The hon. Gentleman has picked out a particular passage in a memorandum dated 10th October 1966 which was sent to the GTC. When this passage appeared in a memorandum which I received from Mr. Malloch, which other hon. Members will have received within the last 10 days or so, I was startled to see it quoted. I therefore took the trouble to check on the passage. Unfortunately, I do not have the document with me. I understood that all these matters had been dealt with exhaustively in Committee. I find it slightly odd that we seem to be having a Second Reading debate on Third Reading. I checked on this matter, because if it were true that the Secretary of State had had legal advice and that he was likely to be acting improperly, that would be a serious charge to level against him.
As I understand the position, the memorandum set out four possible courses of conduct concerning registration. It was a discussion document sent by the Scottish Education Department to the GTC. As I recollect it, it said that there were various possibilities, because it would have been possible for the Secretary of State not to have introduced compulsory registration. In that sense, he was a free agent. But if he had not done that the GTC would have been an absolute sham and could not have worked, because one could not run the Scottish 1188 education system on the basis that some teachers were registered and some were not and that they all had equal status and rights regardless of whether or not they were registered. But it would have been theoretically possible for the Secretary of State to have behaved in that way.
Four courses of action were set out in this memorandum. One was simply that only new entrants needed to be registered, and that perhaps certificated teachers need not be registered.
The second possibility was to use the salaries regulations as a kind of lever by suggesting that new salaries regulations, which were then required every time there was an increase in salaries, would apply only to the registered teachers, and not to other teachers, including certificated teachers, which would have meant that their salaries would have continued on the same basis as previously.
The third possibility was compulsory registration immediately for all teachers, including previously certificated teachers.
As I recollect it without having the document, the fourth possibility was that there should be full registration but that this should be deferred for a year until it could be seen whether the teachers' associations and teachers generally would have been willing to register without the compulsion being laid down by regulations.
Without going into more detail about this matter, there were a number of other issues which were very much involved in the question of compulsory registration at the time.
As the hon. Member for Perth and East Perthshire (Mr. MacArthur) has said, one of the objections to the GTC of the SSA, for example, and of many individual teachers was that no action had been taken to remove all uncertificated and unqualified teachers from the schools. It was a matter of contention whether teachers would be willing to accept compulsory registration while there were still uncertificated teachers in the schools. For that matter, Mr. Malloch's objection to the GTC was specific on the point of the existence of uncertificated teachers.
There was another argument which I thought was false—that it was all right for certificated teachers to be required to 1189 register or even, as was sometimes suggested, to be put on the register automatically, provided that they did not have to pay the £1 fee. Therefore, there were a number of complicated matters involved at the time.
Apart from the fact that the word "rights" in the passage appears in inverted commas in the Secretary of State's letter, the passage the hon. Gentleman read out is very much concerned with the matters that the Lord Advocate mentioned in an intervention and, even if it were not, it could not bear the interpretation, and does not say, that the Secretary of State has been advised that regulations making registration compulsory would be illegal. The passage says no such thing. The passage talks about "rights" and about the fact that teachers who believed that they had such "rights" might contest the regulations, because many of them might feel aggrieved by the regulations being introduced. The passage does not say that the legal advice that the Secretary of State received was to the effect that the regulations would be illegal and that, therefore, he could not introduce the regulations.
§ Mr. Bruce-Gardyne
The passage to which I direct the hon. Gentleman's attention is that which says:The Secretary of State was of the opinion that existing teachers must be registered either free of charge or for a merely nominal fee. In reaching this decision the Secretary of State was mindful that teachers had reserved rights and he considered it inequitable that they should be asked to pay to reserve those rights.
§ Mr. Millan
That is an entirely different point. It is a question whether teachers should pay a fee for being registered.
§ Mr. Bruce-Gardyne That is the point which the courts have decided.
§ Mr. Millan
If the hon. Gentleman believes that that is what the courts have decided, he is under a complete misapprehension. The question whether a fee was payable was not before the courts. That is not a matter which the courts have decided. The hon. Gentleman has tonight made a very long speech containing serious and malicious charges against my right hon. Friend the Member for Kilmarnock without giving him notice 1190 that he intended to do that, and he has done it, as he has just demonstrated, under a complete misapprehension.
I want simply to re-emphasise two points. It was intended all along that the benefits of registration would apply only to certificated teachers if they registered. That was explicit in the report of the Wheatley Commission and was clear during the passage of the Bill in 1965. On the second point, as the hon. Gentleman has just demonstrated, there was nothing in the memorandum of 10th October 1966 to suggest that my right hon. Friend accepted at any time, or was advised at any time, that anything he was doing under the regulations was or could he argued to be illegal.
§ 11.13 p.m.
§ Miss Mary Holt (Preston, North)
Mr. Malloch has written to me, and I became aware of the very important principle involved in the Bill when I served on the Scottish Grand Committee. It appeared to me that this was such an important principle that even I should become further involved in it tonight.
I repudiate completely the view advanced by my hon. Friend the Member for Perth and East Perthshire (Mr. MacArthur) that the Act merely expresses what the law was thought to be. The history of English law reflects completely the fact that over the years people have challenged in the courts what the law was thought to be, and it is as a result of test cases such as the impeachment of the five bishops, Hampden's case and the famous 1771 case of the slave, that English law has protected the rights of the individual. In a minor way Mr. Malloch is in the line of cases which began with John Hampden.
The Education (Scotland) Act 1872 made certificated teachers a category of teachers to be employed in schools in Scotland, and before this Bill made registered teachers a category to be employed, Section 147 of the Education (Scotland) Act 1962 states:Provided that without prejudice to … the Interpretation Act, 1889 … any … certificate given … under any enactment repealed by this Act shall, if in force immediately before the commencement … continue in force …".Section 38(2)(c) of the Interpretation Act 1889 provides that the repeal of an 1191 enactment shall not unless the contrary appears… affect any right, privilege … acquired … under any enactment so repealed …".I am indebted for the reference to these statutes to the judgment of Lord Migdale in the Inner House.
It is quite clear that this Bill, if passed, will take away vested rights. In my submission, it is utterly deplorable that retrospective legislation should take away a vested right. The Labour Opposition made a tremendous fuss a few days ago about the retroactive effect of a decision of the House of Lords under the Immigration Act. This is a far worse case, affecting the rights of the subject, yet there is not a word from the supine Front Bench opposite except of support for this utterly deplorable Bill. It is far worse that the Secretary of State should consider that an assurance of compensation is good enough when taking away a vested right. One Opposition hon. Member said that the numbers affected were very few—that there were only 19—but if the right of only one person is affected it is a matter for this House to consider.
The Bill as drafted will not provide for damages suffered under is provisions. I must ask the Lord Advocate to reconsider that matter and not to put forward this Bill as it stands to the House without at the very least legislative provision for damages for those unfortunate people who lost their jobs as a result of a mistake made by the Secretary of State for Scotland in his regulations.
§ Miss Holt
With respect, I was not a Member of the House at that time, and I was not a teacher affected by the regulation. Further, I am not a Scots person. It is simply because I feel that the liberty of an individual is affected and a vested right taken away that I, an English person, rise to assist a Scots person who has challenged the Secretary of State right up to the highest court of Scotland. I was on the Committee and I am pleased to say that I voted against the Bill. If the arguments advanced tonight were to be accepted, every time anybody challenged the Government in the courts the Government could immediately introduce 1192 a Bill to make sure that the matter was retroactively operated as everyone thought it did.
§ 11.20 p.m.
§ Mr. John Pardoe (Cornwall, North)
I ought immediately to declare an interest, though very indirect. Unlike the hon. Member for South Angus (Mr. Bruce-Gardyne), I support the principle of the General Teaching Council—indeed, I want a teachers' council south of the border, and have said so in this House for many years. But I believe that this is a disgraceful and shaming Bill. It is a Bill which no one remotely connected with the legal profession ought to bring to the House, and I am surprised to find the Lord Advocate here to defend it.
I will briefly outline the story as I see it. I am sure that hon. Members will wish to correct me on points of fact if I am wrong. In 1965 Parliament established the General Teaching Council. The Act did not make registration compulsory. In 1967, for one reason or another, the then Secretary of State made a regulation making registration a condition of employment. At least, that is what he thought he did. We are now discussing the difficulties of that. Pressure was brought on local authorities to dismiss those teachers who refused to register. Some teachers were dismissed, and they contested the legality of the regulation.
It seems to me that the first principle involved is whether there ought to be any compulsory registration at all. I think not, but that is not the main point at issue tonight; it ought to have been contested on some previous occasion. I was not a Member of the House when the 1965 Bill was passed.
The second principal is: what was the intention of the 1965 Act? Several hon. Members on both sides have referred to the intentions of the Wheatley Report, and have made quotations from it, purporting to show that Wheatley thought compulsion had to be introduced and, indeed, advocated it. In fact, paragraph 36 said:In terms of the regulations the final teachers certificate is to be regarded as a permanent certificate which may not be withdrawn or suspended except on grounds of misconduct".We all know that that is the case and that that is the law as it stands at present.
1193 The Wheatley Committee clearly indicated that it recognised the problem.
What did Parliament intend? My right hon. Friend the Member for Orkney and Shetland (Mr. Grimond) has already taken certain hon. Members to task for daring ever to suggest that what the law was thought to intend is important. I maintain that there is nothing in the Act which even hints at making registration of a certificated teacher compulsory or a condition of employment. I am reinforced in that by the Law Lords. There is no doubt of the judgment of the Law Lords facing this problem.
For instance, we have Lord Reid in June 1971:We were not referred to anything in the Teaching Council Act 1965 and I have found nothing to indicate any intention that registration should be made compulsory or should be made a condition for the continued employment of certificated teachers".Again, Lord Wilberforce said in June, 1971:I find it hard to believe that it can really have been intended that men and women validly qualified by certification before the regulation was amended were ipso facto to be deprived of employment without regard for vested rights".On 25th January this year Lord Keith said:Nothing in the 1965 Act bore to make registration with the council an essential condition of employment as a teacher by an education authority, either for teachers already in such employment or for those who might be taken into employment for the future".I shall not continue all the quotations; they are alike, and the Law Lords are clearly saying that Parliament did not intend that in this matter there should be compulsion and that, if it had intended compulsion, it would have said so. [Interruption.] Perhaps the best quotation of all is from Lord Cameron—and it answers those on the Labour benches who, on an issue of liberty, shout "Rubbish". He said on 1st June 1973:If Parliament had intended to make registration compulsory under pain of loss of employment in the event of failure to register Parliament could have said so, and it would have been easy to do so, but Parliament has done nothing of the kind".
§ Mr. Norman Buchan (Renfrew, West)
The hon. Gentleman is reading an awful lot into this. Will he not agree that there is a big difference between their Lordships saying that it did not happen 1194 and arguing thereafter that it follows from that that Parliament did not intend it to happen? I was involved in this matter from the early stages, before it came to Wheatley. It was what everyone expected. The truth is that their Lordships are saying that it did not happen, but the hon. Gentleman must not read into that that it was therefore intended that it should not happen. That is why I said "Rubbish".
§ Mr. Pardoe
I doubt that that was the real reason why the hon. Gentleman said "Rubbish". He said it because he knows so little about the legal judgments in these cases that he had nothing else to say.
§ Mr. Emlyn Hooson (Montgomery)
Did not the Law Lords say that Parliament did not intend to make this registration compulsory because, in fact it showed no sign of any such intention in the legislation?
§ Mr. Pardoe
This is my last quotation from the Law Lords—again from Lord Keith:It is a well established principle of law that a statute should not be held to take away vested rights without compensation unless the intention to do so is expressed in clear and unambiguous terms.All Members of Parliament know that to be so. If they recognise that a right is there and it is vested, and they fail to take that right away, they know very well, as Lord Keith pointed out, what they are doing. In my view, Parliament did not intend to make registration compulsory or a condition of employment.
Some hon. Members have said that everyone knew what the position was. In fact, everyone did not know, for 75 per cent. of teachers in Scotland were of no mind to register. About 30,000 teachers out of 40,000 had to be coerced in one way or another to register with the General Teaching Council. I remember the debates at the time. I thought it a pity that they were so minded, but they were perfectly entitled so to be. [Interruption.] If the hon. Gentleman disputes the 75 per cent. he is entitled to do so, but I do not suppose he can produce a much better figure. The fact is that a large number of teachers thought that they were entitled to abstain from registration and that it would not be a 1195 question of law for them if they did abstain in that way.
The third principle refers to the regulation of 1967 and what the then Secretary of State thought he was doing at the time. Hon. Members have quoted from the minutes. The right hon. Member for Kilmarnock (Mr. Ross) has said that he has not seen the documents recently and he wishes that he had been given notice. I find that an extraordinary argument to use. This is an important Bill enshrining a fundamental issue of liberty. The House does not discuss fundamental issues of principle and liberty only in Committee. It discusses them on the Floor on Second and Third Reading, and on all other occasions that it can find.
It may be late in the night for fundamental principles of liberty to be discussed, but is the right hon. Gentleman saying that he is not aware that a basic argument here concerns the view which he took at the time? I shall not go through the minutes—they have been gone through already in some detail—but I must tell the right hon. Gentleman that, whatever his interpretation and that of his hon. Friends, and whatever the interpretation of the Lord Advocate, who seems to have forged an unholy alliance with the right hon. Member for Kilmarnock, the Professor of Constitutional Law at Edinburgh, having read through the minutes which we have been discussing wrote this in The Times on 8th June:Documents produced before the Court of Session revealed that for a considerable period before the offending regulation was made the Secretary of State had been advised that he had no power to introduce compulsory registration by regulation.That is not the view only of the professor of constitutional law. It is also the view of any reasonable man or woman who reads those minutes with an objective view and an open mind.
§ Mr. Pardoe
The right hon. Gentleman should read them again. He says that he has not read them recently. I repeat that this is the only conclusion that a reasonable person could draw from those minutes.
§ Mr. Pardoe
So Parliament knew what it was doing. The Secretary of State knew what he was doing, and either he knew that the regulation was illegal and he ignored that fact, or he was given different advice at first from what he was given subsequently. Between minute 8 and minute 9 his view changed fundamentally. Apart from what the Secretary of State thought, is it possible that he intended that the teachers who refused to register should be dismissed? It will be interesting to know whether he intended that, because on 24th July 1970 the late Lord Walker said:… I confess that I should be surprised to find that the Secretary of State had by a statutory instrument compelled the dismissal of certificated teachers for declining to do something which the law did not oblige them to do, namely to register. But I am not satisfied that he ever did any such thing.I do not know what the right hon. Member for Kilmarnock was doing at the time. I am not sure he knows now what he was doing at the time. I should have thought that the conclusion I am now drawing was the only one possible.
Does the Bill, miserable specimen that it is, mean that a certificated teacher now legally in employment can be dismissed in the future without any question of misconduct entering into his dismissal? If it is the case, on what basis does it apply? Where is it stated in this piece of legislation, or is it by implication only, as it seems to have been by implication only in the previous legislation? Does any Act of Parliament say that education authorities shall employ registered teachers, and does any Act of Parliament say that education authorities shall dismiss certificated teachers legally employed? Are certificated teachers who are now, or were, wrongfully dismissed to be reinstated in employment?
Certain hon. Members have made the point about compensation. What a disgraceful offer to make! Those who have fought this case—reference has been made to 19, and I doubt whether as many as 19 opposed ship money with Hampden—have never stated any desire for compensation. All that they want is freedom to teach, and that is a freedom which the Bill will be taking away from them.
1197 I simply end by quoting Professor Bradley again:But if this Bill passes through Parliament with its retrospective effect unaltered, a serious inroad will have been made into the rule of law. The message for the citizen will be that it is worthless for him to seek a decision in the courts on the extent of the Government's powers since, if he wins in the courts, the Government will make use of its predominant position in Parliament to remove the victory from him…. The present Bill makes neither for good law nor for good government.He says that the Bill threatens the principle that government must be conducted according to the law. The Lord Advocate is a Law Officer, and I hope that he is ashamed of his dirty piece of legislation.
§ 11.35 p.m.
§ Mr. T. H. H. Skeet (Bedford)
I have one or two brief observations only.
It is apparent to me that the Bill makes no provision for the payment of compensation for any people who may have been dismissed, although I have no doubt that my right hon. and learned Friend the Lord Advocate will say that ex gratia payments may be made. The Bill should have included an additional clause headedProvision for compensation". [Interruption.]The provision that the two earlier Acts shall be deemed always to have included powersto prescribe in such regulations that only registered teachers shall be employed or continue to be employed as teachers by education authorities"—
§ Mr. Deputy Speaker (Miss Harvie Anderson)
Order. We cannot continue with the hon. Member who has the Floor being unable to be heard while others make so much noise from a seated position.
§ Mr. Pardoe
On a point of order, Mr. Deputy Speaker. I have been accused of not declaring my interest. I declared it at the opening of my speech, as will be clearly recorded in HANSARD.
§ Mr. Skeet
It is apparent from a reading of the first clause that those con- 1198 cerned will be employed only if they are registered and pay their contribution. Therefore, if they do not pay their contribution and are not registered they will lose their employment entirely.
We are passing a Bill to try to substantiate a position which was felt to be the law many years ago, under which people will lose their employment, their freedom to work, their freedom of choice to do what they think is right.
It should be understood that what is said in the House is quite immaterial. It is what is written in the Bill that matters. It is the statute that is interpreted by the independent judiciary.
It may have been assumed many years ago that Parliament made provision for what it said it was going to do. Parliament did not make this provision, and the result has been that the court has decided, perfectly fairly, for Mr. Malloch, that he had the right to sue on a claim, and on one part of that he succeeded. I wish him well in those proceedings.
I am concerned about the implications for the House. Several years ago the case of Rookes v. Barnard went right through the process of the law to the highest court of the land, to the House of Lords. The situation there was redressed by the Trade Disputes Act 1965, which took away and negatived any right that the individual citizen had. The difference between that case and this is that there is no retroactive effect.
Everyone will recall the War Damage Act 1965, a short Act similar to the measure before us, of three clauses. It says:No person shall be entitled at common law to receive from the Crown compensation in respect of damage … to property caused … by acts lawfully done by, or on the authority, of the Crown".In that case the Burmah Oil Company, on the instructions of the Government, demolished all its installations on the withdrawal of our forces from Burmah. Many years later, well after the 1940s, it brought a claim that went right through the courts. Eventually the Labour Government introduced a Bill—and a Conservative Government would have done precisely the same—to take away the rights granted to the company by the common law.
What worries me is that, while the effect of that legislation was to bring the law back to what it was thought to be 1199 in the 1940s, and, therefore, to change the whole basis for the proceedings, what we are doing tonight is to bring about the position as the House would want it today to be, as if it had happened in 1965. That is entirely inappropriate. Far too much use is being made of retrospective legislation. I should have thought that the House would be prepared to make a firm stand to make it clear that it will not endorse retroactive legislation in this form if it will impair the rights of individuals. In the case which has been referred to, 20 people were dismissed, and one person was successful enough to take the case right through the stages of the law to a point when he succeeded. It was at that point that I dare say the Law Officers decided that they should take steps to redress the position.
§ Mr. MacArthur
My hon. Friend and I share the same loathing of retrospective legislation. Does he accept the point which I was trying to make earlier, that the only people who could conceivably have suffered are the 19 teachers who lost their jobs? Further, does he accept that that suffering has been totally removed by the Government's undertaking to pay them full compensation?
§ Mr. Skeet
My hon. Friend is wrong. If only 19 people have suffered damage, why did not the Government include a clause in the Bill, instead of giving exgratia payments, so that they could see the earnest of the Government's intention? Why should they do one thing by letter, for example, and one thing by enactment? Of course, there are probably many people who had not the courage to defy the law as it then was. Only 20 people came forward to challenge the law but many other people could have done so.
§ Mr. Bruce-Gardyne
The crucial point is far wider than the interests of the 20 people who were dismissed. It is in the interests of the community as a whole that the courts should not be overridden with retrospective legislation of this kind. Rights won by one individual against the whole might of the Government should be respected by the law.
§ Mr. Skeet
I thought I had made the point clear. We in this House are those who prescribe the law as we see it. If we receive bad advice which requires cor- 1200 recting in later years, that is unfortunate for the legislators and it can be unfortunate for individuals. The courts are completely independent as a judiciary, and they interpret the law as they read it in the statute book. The right hon. Member for Kilmarnock (Mr. Ross) may have made all sorts of assurances and statements in Committee—I dare say that he is a man of the highest integrity when dealing with these matters—but those assurances and statements are not utilised in a court of law when interpreting a statute.
The statute was clear but it was necessary to introduce this Bill with retrospective effect to carry the law back to what was required in 1965. That is totally and morally wrong, and the Government were extremely unwise in bringing the Bill before the House.
§ 11.43 p.m.
§ Mr. Donald Stewart (Western Isles)
I was not a member of the Committee which discussed the Bill. I am neither a member of the legal nor of the teaching professions. I do not even pretend to know or recall very much of the controversy about the GTC registration. But I know that the principle which we are discussing was fought by an individual through the courts of the land and that legislation is to be introduced to set that decision at nought.
That is terribly dangerous interference with the law. I support no Bill of that kind from this Government or from any other Government, or any other place.
§ 11.44 p.m.
§ Mr. Michael Clark Hutchison (Edinburgh, South)
When this matter first arose, both parties were united in believing that there should be a General Teaching Council on the lines of the Law Society or the Bar Council. I was strongly in favour of it. Every member of the Scottish Grand Committee favoured it, and the Bill went through. What has happened is that there has been an error in the drafting procedure and certain people have made capital out of it. I respect them because I am always for the individual.
I support the Bill and I shall go into the Lobby in favour of it. The Government have said "This is what Parliament wanted and we are rectifying the position.
1201 We recognise that a mistake has been made, and anybody who has been aggrieved"—
Mr. Clark Hutchison—no, I will not—"or who has suffered damage will have every opportunity to obtain compensation, and he will obtain generous compensation." That is what everybody of reasonable mind wants to happen. That is what I pressed for in Committee, as did my hon. Friend the Member for Perth and East Perthshire (Mr. MacArthur).
I congratulate the Government on bringing forward the Bill. It is what the teachers want. They have been agitating for it for years. I have never had a letter against it; I have had many in favour of it. Every hon. Member opposite knows that the EIS and all the teaching organisations want the Bill, and they want one organisation to speak for them.
§ I am not prepared to pay attention to the rubbish uttered by the hon. Member for Cornwall, North (Mr. Pardoe). What does he know about this matter? It was pure humbug. On the question of dictation, let me remind him that it was Gladstone who brought in the guillotine.
§ 11.47 p.m.
§ Mr. Russell Johnston (Inverness)
I served on the famous Committee to which reference has been made. I propose to vote against the Bill, and I want in two or three sentences to say why.
In my honest recollection, I believe that the right hon. Member for Kilmarnock (Mr. Ross) is correct, as is the hon. Member for Perth and East Perthshire (Mr. MacArthur), in saying that it was the intention of people in the Committee that registration with a General Teaching Council, which I supported then and which I support now, should be compulsory because, as Lord Wheatley and his colleagues rightly concluded, this was the only way in which such a body could, in the first instance, be made workable. We cannot introduce anything of this sort in any other way. If we do, we involve ourselves in endless complications.
However, it has been clearly demonstrated in the court that Parliament's intention was not fulfilled in the legis- 1202 lation. The hon. Member for Renfrew, West (Mr. Buchan) intervened in the speech of my hon. Friend the Member for Cornwall, North (Mr. Pardoe). I remember him giving me a long and solemn lecture on the limitations of Ministers and the fact that they did not have discretionary powers. He said that it was not a question of whether they thought that something was right; it was a question of what was in the statute. It seemed that the statute was the great defender of the liberties and rights of the individual. It was not a question of what Parliament might or might not have intended. It was demonstrated clearly that that was not the case.
Therefore, it is wrong for the executive, with all their might and power and supposed capacity not to make mistakes, to do something retrospective and not even to write into the legislation any reference to compensation, damages or anything of that sort for those people who throughout, wrongly in political terms, based their case on an interpretation of the law which was proven in the highest courts in Scotland to be right. For that reasons, I shall vote against the Bill.
§ Mr. MacArthur
While the provision is not written into the Bill—and I agree that it would be better if it was—the fact is that the Government have made their declaration and have therefore made a demonstration of good faith which I, and, I believe, many hon. Members, accept totally. Compensation is to be paid. Therefore, if they are the only people who could conceivably have suffered by the retrospective nature of the Bill, surely the grounds for objection to the Bill are removed.
§ Mr. Johnston
All I can say to that is that after all the years since the regulations of 1967 were introduced something more than demonstrations of good faith is required. What is required is something actually in the statute.
§ 11.50 p.m.
§ Mr. Norman Buchan (Renfrew, West)
I am in a rather peculiar position as being the only one who got this right in Committee in 1965. As hon. Members will remember, if my amendment had been carried the problem would have been solved. I can claim no great fore-vision because of that. I should have 1203 been right by accident because the problem with which I was concerned was that of the uncertificated teacher and we were discussing making sure that those who could not register because they were not certificated would not be able to teach. The whole point of the discussion was that it was accepted throughout the Committee that registration was replacing certification. However, events have turned out rather differently.
I had not intended to take part in this debate. I came into the Chamber to hear the winding-up speeches, but I have heard one or two comments that I ought not to let pass.
The hon. Member for Preston, North (Miss Holt) advanced the proposition that the Bill was worse than the proposal which would deport thousands of people from this country. In the name of God, she should get her priorities right. The Bill may have caused difficulty and a lot of pain to more than one individual—especially to one—but the hon. Lady cannot argue that it is worse than a proposal to deport thousands of people.
§ Mr. Bruce-Gardyne
The position with the legislation to which the hon. Member refers is precisely the reverse, because the House of Lords has said that Parliament's intention was something which the hon. Gentleman and many others believed it was not, but the Government have accepted that view. In this case, they are doing the reverse.
§ Mr. Buchan
The hon. Gentleman should understand that we are not dealing with legal technicalities. The hon. Lady was making a moralistic judgment when she said that this was worse than that proposition; it is nothing of the sort.
§ Mr. Edward Taylor (Glasgow, Cathcart)
My hon. Friend the Member for Preston, North (Miss Holt), who made an important speech, was speaking as a lawyer. She was saying that legally this case was more significant than the recent House of Lords case. She was not discussing any possible hardship.
§ Mr. Buchan
In the hon. Lady's absence I am willing to accept that gloss, but that sort of moralistic or value judgment ought not to be made.
1204 The hon. Member for Cornwall, North (Mr. Pardoe) said that he declared his interest. I sat within three yards of him, but I did not hear him. [HON. MEMBERS: "He declared it."] I heard him say that he had to declare his interest, which was that he was in favour of the Teaching Council and in favour of teachers. I certainly heard no mention of the relationship he had with that organisation of which I believe he is a paid representative in this House.
This is important, because the sister organisation in Scotland of the hon. Member's organisation did not secure any member on the council in the elections. At that point, if my memory is correct, the heat was put into the issue and people were encouraged to leave or to resist the proposition. The sister organisation was suggesting alternatives so that voting to the council could take place on the basis of organisations. Let us remember that there was a good deal of split unionism then.
The third speech which made me want to take part in the debate was that by the honest Liberal Member, the hon. Member for Inverness (Mr. Russell Johnston). I am particularly unhappy tonight, and this is true of all of us. No one likes retrospective legislation. I remember, and it is no secret, that I campaigned to achieve retrospective legislation for a good cause, involving the hon. Member's constituents who were suffering hardship. I was able to change the law so that no such hardship occurred in future. I believe that he was one of those who pressed me to make such legislation retrospective to cope with the problem.
§ Mr. Russell Johnston
The hon. Gentleman is correct in saying that I pressed him to introduce retrospective legislation. There was a vote on an amendment introduced by the hon. Member for Caithness and Sutherland (Mr. Maclennan). The difference is important. The hon. Member will remember this because he was a Minister at the time. It was not retrospective legislation in absolute terms. It would have applied only to those farmers who had been served notice and the notice had not been fulfilled. It was not a question of a complete change.
§ Mr. Buchan
It was pressure, coupled with a vote, to introduce retrospective legislation. Let us have no more rubbish about this. I believe that retrospective legislation is always bad and that it takes a mighty good to overcome it. This is the situation tonight. There are alternatives. One would be to bring in a new Bill establishing a new General Teaching Council with compulsory registration. That is one way. The way the Government have adopted is another. This does not take at all from Mr. Malloch and the fight he has put up. We honour him. He has been proved right.
It still leaves the problem that the GTC is required and wanted, and means have to be found to implement it. There is a need to get a grip on the standard of entry into the profession so that for the first time we get something analogous to the medical profession. That was the aim and purpose and it still remains a requirement.
Therefore, regretfully, because I do not like retrospective legislation and because I did not agree with and could not and still do not understand the motivation which inspired Mr. Malloch, despite my attempts to understand it, other than the technical legalistic one that he was correct in law, I will support the Bill. I just cannot see the other motives which inspired Mr. Malloch. For instance, the initial objection—that it could not be accepted because it allowed certain unregistered teachers and it was brought in to phase out unregistered teachers—seems to be an argument for, not against, it. The continuing argument that it allowed unregistered lecturers in training colleges again seems to be contradictory to the proposition, because the aim of the legislation was to try to achieve a totally registered profession. Therefore, although I can accept and admire the fact that he proved his case, we are still left with the proposition: what do we do?
The method chosen by the Government is one which I am sure they do not like. We see the danger of bringing in retrospective legislation. I believe that this is a milder case than has sometimes happened in other instances. Therefore, reluctantly, and only because of that principle, I will support the Bill. I believe it is what is required by the teachers, and we have had an assurance 1206 about compensation for those who have been affected by the legislation in the past.
§ 12.2 a.m.
§ Mr. Neil Carmichael (Glasgow, Woodside)
I think that all hon. Members who served on the Committee and are in the House tonight feel strongly about the question of retrospective legislation. So far, both in Committee and in the House, we have spent 10 hours on this point. That is perfectly reasonable, because it is important. But to imply that we were not concerned because the legislation was retrospective is unfair to all hon. Members who were on the Committee and who are in the House tonight.
We had a long and informed speech by the Lord Advocate on the question of retrospective legislation. We should ask those who have made such a point about retrospective legislation whether they think it is never correct to have such legislation.
My hon. Friend the Member for Renfrew, West (Mr. Buchan) said that it was never right, and many of us would lean to that point of view; but that merely means that when it has to be done it has to be examined in great detail. I think we have done that both in Committee and in the House tonight.
A number of hon. Members, particularly the hon. Members for Perth and East Perthshire (Mr. MacArthur) and Edinburgh, South (Mr. Clark Hutchison), listened to the whole of the Committee stage of the Bill. They were very perturbed at the beginning, but at the end, because of the explanations given by the Lord Advocate and the Minister, particularly when he pointed out that full consideration would be given to compensation for those who were affected, their doubts about individuals suffering were removed. Surely this is the fundamental point about retrospective legislation.
If it is necessary for the greater good that there must be retrospective legislation and it is clearly established that no individual will suffer because of it, I do not see how these pious speeches—perhaps more wind than anything else—can have the effect that hon. Members are trying to give to them. I do not see that the people involved are in anything like 1207 the position of Hampden and the ship tax.
I do not think that anyone who has taken part in the debate tonight or who was in touch with events in Scotland during the time when the use of uncertificated teachers was becoming a serious problem was in any doubt that compulsory registration was required. Long before he came to the House, my hon. Friend the Member for Renfrew, West was concerned with the problem of uncertificated teachers and the need for registration. He said that the idea was that the teaching profession itself would be able to phase out uncertificated teachers. That was the basis of the legislation and the reason behind it, and that is what we all believed would happen when the legislation was passed.
The hon. Member for Perth and East Perthshire referred to the 1,200 teachers who did not register, and he added that the objection was to the composition of the GTC. There was a certain amount of disturbance in parts of the teaching profession about the composition of the council. That matter was cleared up, and the number of teachers refusing to join fell to only 19. I do not mean to belittle them by saying that there were only 19. The fact is that reasons which led to the 19 not joining were different from those which led to the original refusal to join.
Mr. Malloch fought a remarkable battle and he has found a place for himself in Scottish law that will never be taken away from him, but now is the time to consider the wider questions.
§ Sir Frederick Corfield (Gloucestershire, South)
The hon. Gentleman referred to uncertificated teachers. I thought we were dealing with certificated teachers. They do not become better teachers by joining this body. Will the hon. Gentleman please tell us what terrible damage will befall us if we do not pass this Bill, in view of his dislike of retrospection?
§ Mr. Carmichael
I have great respect for the right hon. and learned Gentleman, but he should not intervene in a Scottish debate. I respect his views on other matters, but he should realise that, when I refer to uncertificated and unregistered teachers, those who have followed this matter in Scotland know what I mean. Uncertificated teachers are those who have not received the appropriate train 1208 ing at a teacher training college. That was the old system for the recognition of teaching qualifications. During the last few years there has been a lot of discussion about certificated and registered teachers, so perhaps we are more au fait with the matter than is the right hon. and learned Gentleman.
The purpose of the registration was to allow the teachers themselves, rather than the Secretary of State, to decide who should be entitled to teach in Scottish schools. As the hon. Member for Edinburgh, South said, the idea was to create for teachers in Scotland a body equivalent to the Law Society for lawyers or the General Medical Council for doctors. It was a good objective and most of the teachers in Scotland agreed with the idea behind the legislation, but there was an oversight in its drafting. The Bill is meant to correct that. Those who have been disadvantaged by the regulation will be compensated. Therefore I feel that, for the greater good of the teaching profession and of teachers in Scotland, the Bill should be given its Third Reading.
§ 12.10 a.m.
§ The Lord Advocate (Mr. Norman Wylie)
I would not for one moment suggest that because the Bill has been comprehensively debated in the Scottish Grand Committee and in Standing Committee it should not be debated here. Undoubtedly the Bill introduces an element of retrospection and, as I have made perfectly clear all along, this is a matter which Parliament must consider carefully. I therefore welcome our debate tonight.
I do not think that much is achieved by using excessive language. When speaking of retrospection it is sometimes dangerous to use generalisations because every case stands on its own merits, and this case of retrospection has to be justified in its context. That is probably accepted. It is well known that Parliament frequently overrules the law and frequently has to consider the circumstances in which that is done. This is not the first case of retrospection legislation in recent years. There are many examples of it, and in this case justification has to be made for it.
My hon. Friend the Member for South Angus (Mr. Bruce-Gardyne), who, to his credit, has constantly raised this issue, 1209 concedes the need for retrospection over a certain field. I understood that to be his position at the end of the proceedings in Committee and I also understood that to be the substance of the new clause which was not called. In this case the issue is not whether there should be retrospection but what is the area over which the retrospection is to apply.
My hon. Friend the Member for South Angus and others have raised the question of the policy or understanding at the time of the 1965 Act. That is a relevant consideration. If it is not, we have wasted many hours over it. It is relevant to know exactly what is the effect of this retrospective legislation. One effect, to put it negatively, is that the Bill does not retrospectively introduce any new or unexpected obligation. On the contrary, it restates the law on the basis of what until recently it has been generally understood to be. That cannot be dismissed as irrelevant. If it is irrelevant, all our discussion about the passing of the 1965 Act and all the legislative provisions that have followed on it are equally irrelevant.
One of the relevant features of this exercise of retrospective powers is that it does not retrospectively introduce any new or unexpected obligation. It does not introduce retrospectively any statutory offence. It does not seek to introduce any common law principles, as did the War Damage Act. It does not seek to deprive any citizen in Scotland of any damages already pronounced by a court of law or already settled. It does not change the character of any past transaction, nor does it make illegal any act which was perfectly legal at the time it was committed.
The hon. Member for Renfrew, West (Mr. Buchan) said that this was a mild example of the exercise of retrospective powers. The retrospection that is being invited here is of a relatively inoffensive character for the reasons I have indicated and also because we are dealing here entirely in the realm of the statutes. What went wrong here was a defect not in the 1965 Act but in the 1962 Act, and this I elaborated at some length in Committee. If the House will bear with me, I will take a little time to go over that ground again.
1210 I know that my hon. Friend the Member for South Angus will dispute this, but it cannot be said that we did not know what we were doing in Parliament when we passed the parent legislation, the 1965 Act. There are many examples of this. I think that the hon. Member for Inverness (Mr. Russell Johnston) will accept this. In the Committee on the Teaching Council (Scotland) Bill, of which my hon. Friend the Member for South Angus was a member, the Minister was asked by the hon. Member for Glasgow, Govan (Mr. Rankin):There is one point about which there has been confusion. Is it not the case that all teachers in grant-aided schools must be registered?Grant-aided schools are in a slightly different position from normal local authority schools but they are still governed by local authority provisions. The answer was:Yes, that is quite clear.The Minister went on to say:An education authority and a grant-aided school stand in the same position here in that teachers in them at present must be certificated, and in the future we expect that they will be registered for permanent employment."—[OFFICIAL REPORT, Scottish Standing Committee, 16th February 1965; c. 40–41.]
§ The Lord Advocate
The necessary regulations had to be passed before this could take place on the ground.
The hon. Member for Renfrew, West sought to put those statutory provisions in that Bill and was told by the Minister, in effect, "We do not need that because we have the necessary powers in the 1962 Act and we shall pass the necessary regulations to implement this policy of registration which proceeded on the recommendations of the Wheatley Committee ". The Wheatley Committee does not make laws. All I am saying at this stage is that Parliament intended this result to be achieved. It was on advice at the time to the administration that this result could be achieved by the exercise of regulation-making powers under the 1962 Act, and it was on the failure of the statutory provisions of the 1962 Act 1211 that the regulations subsequently made were found to be defective.
The 1967 regulations amended the 1956 code by providing that every teacher employed by an education authority should be a registered teacher instead of a certificated teacher, which was what the 1956 code said. The 1967 amendment substituted the word "registered". The 1967 regulations bore to proceed on the authority of Section 1(2) of the 1962 Act, now Section 2 of that Act as subsequently amended. Indeed, on the basis of that understanding the present administration equally proceeded by legislation in 1971 to enable—and, indeed, to require—local authorities to deduct the annual contribution from teachers' salaries, again on the assumption, wrongly founded as we now know, that there were sufficient statutory powers in Section 1(2) of the 1962 Act to justify it.
The Government are not, therefore, interfering with personal rights or with common law principles. The Government are not dabbling with statutory offences in the way that the more offensive use of retrospective powers could be said to do. The Government are seeking to correct a defect in the 1962 Act about which, until quite recently, no one had thought. Indeed, the hon. Member for Cornwall, North (Mr. Pardoe) referred to some of the observations in the House of Lords in the other case, which was not concerned with these statutory provisions; it was on different grounds and arguments.
But observations were made by their Lordships, the Lords of Appeal in Ordinary, that the appellant might be able to question the validity of the regulations, and he quickly—and all credit to him—very successfully proceeded to do so.—[Interruption.] Although the appellant was represented initially, he carried his case through to the House of Lords himself. He did so jolly well, and with success. That was where it started. That was where the doubt arose. It was after that that the present action was raised which questioned the vires of the 1967 regulations by questioning whether Section 1(2) of the 1962 Act was adequate to support the exercise of these powers or these provisions.
1212 It was argued during the course of the debate before the Lord in Ordinary that Parliament could not have intended this because it could not reasonably be said that Parliament expected a teacher to be registered before there could be an efficient system of education. On that argument—I mention this because again it was an argument of the hon. Member for Cornwall, North—the Lord Ordinary said:I reject this argument. Parliament has thought fit by the 1965 Act to constitute the General Teaching Council for Scotland and to give it various functions as regards the qualification for registration of teachers and the discipline of registered teachers. There can be no doubt that although the Act does not fall to be read as one with the Education Acts, its provisions are closely related to the general system of State education in Scotland. Parliament must necessarily have taken the view that the implementation of these provisions would tend to promote the efficiency of that system. In these circumstances it cannot he held that the Secretary of State could not reasonably take the view that a general requirement regarding the employment of registered teachers would tend towards the adequate and efficient provision of education.Although the Lord Ordinary expressed no doubt as to Parliament's intention in the 1965 Act, he went on to ask—this is the crux—whether Parliament had in fact achieved this result. The Lord Ordinary put it in this way:The question, therefore, which I have to decide … is whether the 1967 amendment of the 1956 Code was authorised by Section 1(2) of the 1962 Act in so far as the amendment bore to affect certificated teachers in employment when it came into force.It was on that that the Secretary of State fell down, not because of anything in the regulations themselves, not because of anything in the 1965 Act, but because the provisions of the 1962 Act were insufficiently clear and unambiguous to justify the making of these provisions.
In that situation, when over a period of years thousands of teachers have been registered, money has been deducted by local authorities and handed over to the General Teaching Council, and the General Teaching Council has been exercising a jurisdiction inextricably mixed up with the concept of registration, we now find that in respect of those teachers in employment at the time it may well be argued that they have not been registered at all because the deductions 1213 in respect of the renewal of their registration has now fallen to be questioned.
As I said in Committee, it is quite arguable that the defect in the 1962 Act provisions is such as to raise a question mark over the registration of the whole teaching profession in Scotland, not only those who were in post when the regulations came into force in April 1968. [Interruption.] My hon. Friend says "So what?" Here we have a General Teaching Council which was constituted by Act of Parliament with the statutory duty to represent registered teachers. It has been purporting to do that for a number of years. Its very composition included 25 persons representing registered teachers who are themselves registered teachers. [Interruption.] My hon. Friend says "So what?" If there have never been any registered teachers, I suppose we could scrap everything and start all over again. Of course, there is the problems of the deductions which have been made over a period of years. I understand my hon. Friend to accept the need for retrospective legislation to cover the problem of claims against local authorities in that respect.
In my submission, having regard to the technical nature of what went wrong here—because it is purely a technical defect that is being corrected—the House would be justified in supporting this approach. Accepting, as my hon. Friend now accepts, that there must be some retrospection to cover the position of local authorities, it would only be sensible to cover the position of the General Teaching Council in Scotland as well. unless one wants to destroy the morale and the existence of the General Teaching Council. If that is the policy behind some of the attacks that have been made on the legislation, one can understand it.
Looking at the situation unemotionally and impartially, weighting the disadvantages of using retrospective provisions at all against the disadvantages which flow from their absence, I submit that on a balance of judgment these powers are justified and that it is not a case, as someone said, of the executive bulldozing this type of legislation through the House of Commons. As I said in Committee, I would prefer the message that would go from this House to go out as a consensus of opinion. One cannot expect 1214 unanimity, and I expect that if it came to a vote a number of hon. Members would vote against, but I should like to see this exercise of retrospective powers on a basis of a consensus of opinion between both sides, and I am reasonably confident that we will achieve it.
§ Mr. Bruce-Gardyne
I hope that my right hon. and learned Friend will resist the temptation to try to claim that, because my new clause involved an element of retrospection, that in some way means that I accept the generalised retrospective element of the Bill. That does not follow at all. But before my right hon. and learned Friend concludes—
§ Mr. Deputy Speaker (Sir Robert Grant-Ferris)
Order. The hon. Gentleman would be out of order in referring to the new clause, which was not selected.
§ Mr. Bruce-Gardyne
I apologise, Mr. Deputy Speaker, but my right hon. and learned Friend did just that. I hope, however, that before he concludes lie will deal with the evidence I have put before the House tonight that the Secretary of State at the time himself knew that the sort of regulation he intended to introduce in 1967 was ultra vires.
§ The Lord Advocate
I entirely accept that my hon. Friend accepts the need for retrospection in a limited field. He has never denied it. It is conceded by him that there ought to be some retrospection in this legislation. All I say is that with that concession it is a very short step not only to cover the position of local authorities, about which he is concerned—and that is a major problem, I agree—but it is only logical to cover the position of the General Teaching Council, unless, of course, one is determined to do what damage one can to that body as an institution.
I had not intended to refer to the minutes or observations which my hon. Friend made about the Secretary of State at the time. I was not there. All I will say is that the minutes of 28th October 1966—paragraph 3(b)—do not in my view support the contention and the construction he sought to impose upon it. My reading of those minutes—one must remember that they are minutes and not contractual documents or conveyancing deeds—is that there was never any question about the need for registration.
1215 The only issue was the narrower one of teachers with reserved rights. As I pointed out in a letter to my hon. Friend—I am sorry that he only got it, I think, today—the reserved rights that were referred to were the rights reserved under the 1965 Act, because that Act gives a certificated teacher the reserved right, the vested right, to registration on application with no other preconditions at all. That is the reserved right. That is the vested right to which the right hon. Member for Kilmarnock (Mr. Ross), on my construction of this minute, was referring.
The right hon. Member knows that reference was made to an "unholy alliance" between us, and it would be a pretty unholy alliance if he and I were frequently on the same side, but I have known him a good many years, and it is a serious suggestion, if it be suggested, that a Privy Councillor and a member of the Cabinet goes ahead in the teeth of legal advice to do what he knows is illegal in the hope that nobody will find out. If that is the suggestion, it is a very serious suggestion and not one which can be borne out by anything in those minutes.
I have now obtained a full copy of the memorandum of 10th October 1966, an extract from which is recorded in the minutes. It simply confirms what I said earlier, that the accusation made repeatedly tonight by the hon. Member for South Angus (Mr. Bruce-Gardyne) is utterly untrue—I hope the hon. Member will have the grace to withdraw it—that the memorandum states that the then Secretary of State was advised, or accepted advice, that to introduce the regulation in the form he did in 1967 would be outwith his powers and illegal. This is just not true. I have the memorandum here in my hand.
§ The Lord Advocate
In conclusion, it seems to me that in all these cases when we are examining retrospective legislation there is a balanced judgment which has to be reached. One can never say that it is never justifiable; no one can say
§ that it should be regularly or easily justified or is lightly to be considered. In this case, when we are dealing entirely in the realms of the future of the legislation, in the circumstances of this case, having regard to the background and the purpose of the legislation, I am suggesting that it is justifiable, and I recommend these provisions to the House.
§ Mr. Robert Cooke (Bristol, West)
I wonder whether my right hon. and learned Friend—[interruption.] I have not just come in. I have been waiting for about an hour and a half for this wretched thing to come to a conclusion. I tried to ask a perfectly straightforward question before my right hon. and learned Friend got up, but he seemed not to see me, so I want to ask it now.
This Bill has a prospectus, which will not be enacted and put on the statute book but is the Government's prospectus. It is the explanatory memorandum which says thatThe Bill creates no burden on Exchequer funds".We have heard a lot about compensation. For the record, I want to know where the compensation is to come from.
§ Question put, That the Bill be now read the Third time:—
§ The House divided: Ayes 59, Noes 10.1217
|Division No. 191.]||AYES||[12.34 a.m.|
|Alison, Michael (Barkston Ash)||Carmichael, Neil||Eyre, Reginald|
|Atkins, Humphrey||Clarke, Kenneth (Rushcliffe)||Fortescue, Tim|
|Bitten, John||Clegg, Walter||Fox, Marcus|
|Braine, Sir Bernard||Cooke, Robert||Gilmour, Sir John (Fife, E.)|
|Buchan, Norman||Dalyell, Tam||Golding, John|
|Gower, Raymond||Money, Ernie||Shersby, Michael|
|Hamilton, James (Bothwell)||Monro, Hector||Soref, Harold|
|Haselhurst, Alan||Morgan-Giles, Rear-Adm.||Speed, Keith|
|Hayhoe, Barney||Murton, Oscar||Spence, John|
|Hill, John E. B. (Norfolk, S.)||Noble, Rt. Hn. Michael||Stanbrook, Ivor|
|Hornsby-Smith, Rt. Hn. Dame Patricia||Nott, John||Tugendhat, Christopher|
|Huckfield, Leslie||Osborn, John||van Straubenzee, W. R.|
|Hutchison, Michael Clark||Page, Rt. Hn. Graham (Crosby)||Waddington, David|
|James, David||Price, David (Eastleigh)||Ward, Dame Irene|
|Jones, Arthur (Northants, S.)||Price, William (Rugby)||Weatherill, Bernard|
|Jopling, Michael||Pym, Rt. Hn. Francis||Worsley, Marcus|
|Knight, Mrs. Jill||Renton, Rt. Hn. Sir David||Wylie, Rt. Hn. N. R.|
|Longden, Sir Gilbert||Ross, Rt. Hn. William (Kilmarnock)|
|MacArthur, Ian||Rossi, Hugh (Hornsey)||TELLERS FOR THE AYES:|
|Machin, George||Shaw, Michael (Sc'b'h & Whitby)||Mr. Hamish Gray and|
|Millan, Bruce||Shelton, William (Clapham)||Mr. John Stradling Thomas.|
|Cooke, Robert||Kinsey, J. R.||Tope, Graham|
|Coombs, Derek||Mudd, David||Winterton, Nicholas|
|Grimond, Rt. Hn. J.||Pardoe. John|
|Holt, Miss Mary||Skeet, T. H. H.||TELLERS FOR THE NOES:|
|Hooson, Emlyn||Stewart, Donald (Western Isles)||Mr. J. Bruce-Gardyne and|
|Johnston, Russell (Inverness)||Mr. David Steel.|
§ Question accordingly agreed to.
§ Bill read the Third time and passed.
§ Motion made, and Question proposed, That this House do now adjourn.—[Mr. John Stradling Thomas.]