COUNCIL ON TRIBUNALS (Hansard, 19 July 1973)

§ Mr. Michael Hamilton (Salisbury)

I should like to speak about the Council on Tribunals. I am deeply grateful to my hon. and learned Friend the Solicitor-General for being at his post at this inhospitable hour of the morning.

The Council was set up in 1958. Members are appointed by and are responsible to the Lord Chancellor and for the most part they are distinguished public servants. The purpose of the Council was well expressed by Mr. R. A. Butler, as he then was, who piloted through the Bill, when he said: some continuous supervision is essential if the confidence of the public is to be inspired and the citizen assured that they carry out their duties in accordance with the principles of fairness, openness and impartiality."—[OFFICIAL REPORT, 3rd July 1958; Vol. 590, c. 1606.] The Council costs the taxpayer £1,000 a week, but it is a modest price to pay for a 978 national watchdog, providing that the watchdog barks and that the Government heed that bark. I myself have always looked on the Council as the sacred geese of the Capitol—its task is to sound the alarm when things go wrong and to speak out fearlessly until things are put right.

Some time ago a case arose in Salisbury. It was tailor-made for the Council. It was a case in which these three principles, fairness, openness, impartiality, were wholly absent. No hint or trace of any one of those three essential qualities was present.

I need not describe the case itself now. Suffice it to say that it concerned a planning inquiry at which the central evidence was heard in secret, the first time such a thing had ever happened. The appellants called by appointment on a civil servant at the Department in Whitehall 28 days before the inquiry and the procedures were agreed without my constituents' knowledge. The Minister in charge of the Department was never consulted. The inspector was alerted beforehand. The expert witness acting for my constituents was excluded. The dice were well and truly loaded beforehand and it was a case of breath-taking injustice.

It was for just such an eventuality that Parliament had brought the Council on Tribunals into being and I laid matters before the Council with every confidence. In due time, the Secretary wrote to me: The Council recognise that a procedural point of considerable general importance has been raised. They feel that this ought to be covered by a provision in the statutory rules of procedure". That was in July 1969. Talks between the Council, the Lord Chancellor and the Department were thereupon launched. The Minister told the House: We are having these discussions and can rely upon the Council on Tribunals to insist on rules if it is thought necessary."—[OFFICIAL REPORT, 25th July 1969; Vol. 787, c. 2344.1 In its annual report for 1970 the Council repeated its belief: We … felt that it ought to be covered by a provision in the statutory rules of procedure. Twelve months later talks were still continuing.

Again, in its annual report for 1971, the Council repeated its view: that the statutory rules of procedure for planning inquiries ought to provide for any necessary hearing of evidence in camera." 979 Still the talks continued; still the Council held to its view. Then, in the course of the third year, new rules for planning inquiries were ready. Before being laid before Parliament the draft was circulated for comment to various bodies, such as the Country Landowners' Association. Together with the explanatory circular the draft occupied 23 pages. It read: The Lord Chancellor, in the exercise of the powers conferred on him … and after consultaton with the Council on Tribunals … hereby makes the following rules. In tribute to the Lord Chancellor, I must say that he had worked very hard on those rules. Constitutionally he could not intervene in the appalling mistake for which his Cabinet colleague holds responsibility, but he could ensure that such injustice could never recur. Thus, the rules insisted that notice of in camera hearings was to be published in local newspapers, whereas no hint of warning had been given before. Thus, the rules insisted that an expert witness was not to be excluded, whereas the distinguished geologist from London University had been unceremoniously shown the door.

The rules were at last ready and they would demonstrate that what had happened at Salisbury without such rules and safeguards should never have taken place. It may be that was the very reason why the rules never saw the light of day. For suddenly the Lord Chancellor stopped dead in his tracks and overnight Government policy changed. In the Government's view rules had become "inappropriate". That was the word that was used.

Immediately I heard from the Lord Chancellor that rules had become inappropriate, I turned to the Council on Tribunals, for here was the Council firmly convinced and on record, year in, year out, that rules were essential. Moreover, the House had been assured that we could rely upon the Council to insist. Yet, within hours of the Government deciding that rules were inappropriate, the Council on Tribunals formed the same view.

There is something painfully and profoundly wrong here. I had never taken a case to the Council on Tribunals before. I waited until I had something tailor made 980 for it. When I made this discovery of a twin volte-face I asked myself: is this not a watchdog that does not bark?

The House will recall that it was Lloyd-George who said: The House of Lords is not the watchdog of the constitution. It is Mr. Balfour's poodle. In this case either the Council on Tribunals is Mr. Balfour's poodle, or the Government are flouting the Council's expressed wish. It must be one or the other. Either we can rely upon the Council to insist or we cannot. Has the Council been robbed of the independence which Parliament intended it to have? Has the Council been steam-rollered by the Government? I said earlier that the Council is composed of public servants of distinction and from my experience of them they do not have the appearance of Balfour's poodle. They are courteous but they are firm. My conclusion is, therefore, that the Government are disregarding the Council's recommendations and I ask my hon. and learned Friend the Solicitor-General if he will look at the relationship between the Government and the Council on this issue, if he will consult with the Council and if, having done so, he will reassure me in a letter that the Council's wishes in this case have been fully observed by the Government.

The Lord Chancellor tells me that rules governing secret planning inquiries have been abandoned. Safeguards which he worked so hard for have been jettisoned. That is grave news. Planning regulations have existed since the beginning of the century. Until the Salisbury precedent no part of a planning inquiry had ever been held in secret and the Salisbury precedent stemmed from a decision taken one fine morning by a civil servant whom I shall call Mr. B, a decision that was never so much as referred to the Minister in charge of the Department, a decision on which Parliament and the courts have never been so much as consulted.

Yet the Government choose to maintain the stance that a planning inquiry behind locked doors is legal, normal, unexceptional stuff; that rules for its proper conduct are unnecessary. That strikes a chill fear into my constituents. After what has happened they do not relish the thought of another privileged circle sitting behind locked doors deciding the future of their countryside. They do not 981 relish the principle of "choose you a man"—a man to represent you, a man sworn to secrecy for life who will never be able to consult with you although he represents you. Such things are wholly alien to the accepted principles of planning. My constituents have experienced these things once, and once is enough thank you. They believe that a public inquiry means an inquiry held in public. So does the leader in The Times.

"The choice must be for openness", it stated. So does the overwhelming majority of hon. Members, and the Government know that and it will be demonstrated at the proper time. Therefore I ask my hon. and learned Friend to reassure me in a letter, having looked into the matter, that my constituents need fear no further in-camera planning inquiry this year. If he cannot give me that reassurance their forebodings will increase.

It is one of the tragedies that mistakes by Government have a tendency to grow. Yet it is in the nature of things. It is one of the inescapable weaknesses of any governmental machinery. Here, for instance, we have a civil servant, Mr. B, who commits a modest error of judgment. He is then defended in this Chamber by an over-worked Under-Secretary of State, whose brief is prepared by his civil servants. That is the point of no return. From that moment, there is no going back. The Secretary of State then has to defend not only Mr. B but his Under-Secretary of State as well. So it goes up the scale. It is "The King's Breakfast" by A. A. Milne all over again. The king asked the queen and the queen asked the dairy maid.

The chain grows in complexity. In comes the Secretary of State and in comes the Lord Chancellor. The tragedy is that the higher it goes the more difficult it becomes to remedy the original injustice. Of course these senior Ministers would like to undo the original error, but how immeasurably more difficult it becomes. It soon becomes easier to leave a few perhaps rather inarticulate Wiltshire villagers to suffer than it is to lance the cause of their discontent.

But this is not a problem which will get lost with the passage of time. My constituents are not in a hurry. They know that Grimstead stands right astride the road. There is no skirting round the obstacle. It is there today and it will be 982 there tomorrow. It will be faced Uri to in time simply because there is no alternative. Somebody will break the line. It may be a court of law; it may be a professional watchdog; it may be that the Government will decide to cut their losses. My constituents are not in a hurry.

Meanwhile, Grimstead retains its lonely distinction. It is an abiding monument to the error of civil servants in Whitehall on Wednesday, 24th May 1967. Nowhere else in the United Kingdom is there a community which suffers as a result of an in camera planning inquiry. Nowhere else in the United Kingdom is there a community condemned to watch the gradual destruction of its countryside for commercial reasons which have not been revealed to it, reasons which it has been able neither to verify nor to contest.

The excavating company owns some 600 acres in the parish—an area perhaps twice the size of Hyde Park. The Council for the Preservation of Rural England said: The beauty of this lovely stretch of rolling countryside will be largely destroyed. Sir Edmund Compton, no less, said: … this is not to say that the complainants in this case do not suffer, because they do. Lord Brooke of Cumnor, no less, has made plain that local residents had no opportunity to rebut the claims which were made.

One after another, witnesses come forward and step by step the evidence of injustice accumulates and Ministers stop dead in their tracks, contradict one another—indeed, contradict themselves. If the Solicitor-General would like me to give him examples, I shall be only too happy to do so. After all, these are no more than the symptoms of trying to maintain an untenable position. If the Solicitor-General would like me to drive him later today—it is getting light now —to my constituency, I shall be happy to take him with me. The corn is ripening, and the villages are hospitable. I shall be happy to show him what two irregular planning inquiries have brought to my constituents. He will be able to talk to people and to appreciate what the man in Whitehall has done to us.

§ The Solicitor-General (Sir Michael Havers)

The House knows of the great interest taken by my hon. Friend the 983 Member for Salisbury (Mr. Michael Hamilton) in the problem of the Grim-stead quarry and his unstinting and unremitting effort on behalf of his constituents. I think that this is the sixth debate which he has contrived on this subject since 25th July 1969 when the late Mr. Skeffington replied. These debates have spanned two administrations and, in all, six Ministers, including a Law Officer on two occasions, although my predecessor was lucky enough to be on duty at the more reasonable hour of 10 p.m.

This debate is entitled "Council on Tribunals", but inevitably a great deal of what has been said by my hon. Friend was not directed to the Council on Tribunals but more to the planning errors which he claims arose out of a decision during the Labour administration. If I do not deal with that matter, I hope that my silence is not taken to mean that I accept the strictures which my hon. Friend made, and in particular in regard to his statement that there was an appalling mistake by a Cabinet colleague of my noble and learned Friend the Lord Chancellor.

I should like to be able to give to my hon. Friend the reward he seeks in the form of an absolute assurance that never again will an inquiry of this kind take any evidence in secret. I say this not to save myself or my colleagues late nights in the future, but because, in an ideal or utopian situation, where confidence could be honoured and commercial secrecy preserved, evidence in secret would never be necessary. This was not a case of call girls being allocated letters of the alphabet, but where it was suggested that a vital process of manufacture of a great commercial undertaking, if disclosed, could do great commercial harm to that company at the hands of its competitors. It was in those circumstances that the inquiry was in part heard in camera. That was the narrow issue of the Grimstead inquiry. But this debate—and this is why I am here and not a Minister from the Department of the Environment—is on the wider issue of the Council on Tribunals.

I should like first to establish the position of the Council. It is made up, as my hon. Friend rightly said, of an eminent and widely respected membership. It 984 was set up in 1958 and has made many valuable contributions to a difficult area involving tribunals. Its duties are advisory. The duties of Ministers and my noble and learned Friend the Lord Chancellor are to consult with the Council before making procedural rules. There is no power for the Council—in spite of what was said in the 1969 debate by the then Minister—for that Council to insist; its duties are advisory and no more. It has the power to consider and report on any aspect of the tribunal scene. I emphasise this because it cannot be steam-rollered, to use my hon. Friend's expression. The Council certainly carried out its duties to consider and report on secrecy in tribunals for in its report for the year 1969–70, in paragraph 80, it said under the heading "Evidence in camera": A planning appeal in which an important part of the evidence concerned a secret industrial process of importance to the export trade was the subject of a complaint to us by a Member of Parliament who criticised the circumstances in which evidence relating to the process had been heard by the inspector in camera and had subsequently been investigated for the Minister of Housing and Local Government by technical experts in the government service. Such cases present an irreconcilable conflict of principles, and clearly only the strongest consideration can justify withholding relevant evidence from other statutory parties and objectors. We recognised that a procedural point of considerable general importance had arisen and felt that it ought to be covered by a provision in the statutory rules of procedure for planning appeal inquiries. I read again the following passage: … only the strongest consideration can justify withholding relevant evidence from other statutory parties and objectors. That is a quotation which the Government accepts and endorses. As a result of that advisory reference in its annual report the Council started discussions on the basis that there should be rules. The Government took up the problem and rules were drafted. My hon. Friend, with a degree of foresight, anticipated the difficulties during the debate on 25th February 1971 when he said: Today, because two years ago I took this issue to the Council on Tribunals, it lies on the desk of my right hon. Friend the Lord Chancellor. This gives my constituents new hope of justice. There is no one by whom they would rather see the matter considered, no one more qualified to do it. The House will appreciate that the Lord Chancellor is concerned only with the principle. He has neither power nor responsibility to intervene in Wiltshire. It is not his task to order a public 985 investigation. This falls to the Secretary of State. What then will the Lord Chancellor do? He will pronounce one way or the other. My assessment is that new rules of procedure, sufficient to safeguard fairness and justice, are likely to be so complex as to be unworkable in practice. Two years of study have so far failed to produce a satisfactory code"— [OFFICIAL REPORT, 25th February 1971; Vol. 812, c. 1074.] That was exactly the case. The rules turned out to be, in the phrase of one person consulted, "somewhat elaborate". The Council accepted that definition. One consequence was that the rules had the opposite effect to what was intended. They gave the impression that hearings in camera could be a recognised feature of inquiries. They thus had the effect perhaps of encouraging, or would have had the effect of encouraging, applications to hear cases in secret.

The Council accepted that and said that it agreed that the elaborate rules were inappropriate. It said that it had taken the views and always had taken it that it would be desirable to have a simple rule to cover the exceptional case. But as anticipated by my hon. Friend some two years ago, reality has so far won the day and the Council has been unable to offer any such simple rule which does not have the drawbacks and disadvantages which I have mentioned.

The Government, of course, would like to have such a simple rule. Any such rule if preferred would be examined with care. The essential requirements of the appropriate safeguards were always to moderate the risk of the wider application of secret hearings than the draftsmen ever intended.

It is interesting that the courts, faced with similar problems, have no such rule as a matter of course and have left the decision to the discretion of the courts to be exercised on the facts of each case, with one or two special exceptions such as are found when dealing with matters of legitimacy and adoption. The practice of the courts tends to confirm that and to show that there is an advantage in the public interest in not having fixed rules for the reasons which I have explained. I am sure that the House would support the proposition that secrecy in any public inquiry is undesirable. Nobody supports it more than I, having, as a lawyer, spent a great deal of my professional life in courts.

986 The hearing should be in public because the public can then satisfy themselves that the hearing was fair, that justice has been done and has been seen to be done. It follows that any departure from that rule can be justified only by the most exceptional case. It is impossible to lay down hard and fast rules, but I can assure my hon. Friend that it is my right hon. Friend's intention to exercise this discretion only where those most exceptional circumstances exist.

If it is possible to consult the Council in advance, I am sure that it will be consulted. In any event, the Council will have the opportunity—and also the duty—to consider and report upon such an event if, unhappily, it should ever become necessary again.