HC Deb 09 December 1975 vol 902 cc233-40
The Secretary of State for the Home Department (Mr. Roy Jenkins)

With permission, Mr. Speaker, I wish to make a statement.

I have now been able to consider the implications of the decision in the Court of Appeal on 4th December in Congreve v. Home Office reversing the judgment given in favour of the Home Office in the High Court on 26th November.

I have given careful consideration as to whether I should seek leave to appeal to the House of Lords. I have decided not to do so. The clear and unanimous judgment of the Court of Appeal is that it was not a proper use of my discretion in the circumstances either to refuse to issue what has come to be known as an overlapping licence or to revoke such a licence if it was issued.

My actions and those of my Department in this matter have been founded on the advice that they were within my powers and the discretion open to me in the use of those powers and having in mind our duty both to protect from loss the licence revenue, which is the BBC's main source of income, and also to act equitably as between one licence holder and another. Our action was in line with the practice which had been followed for 20 years by successive Governments, although it had not hitherto arisen in the context of an increase in licence fees because such increases had not been so sharp as to make the problem real. The judgment of the High Court on 26th November upheld our action. However, what is at present much more to the point is that the Court of Appeal did not.

The immediate effect of the decision of that court is to invalidate the licence revocations already issued. Its wider implications and consequences for the future administration of the television licensing system, particularly but not only at the time of an increase of licence fees, need careful scrutiny. Fresh arrangements and perhaps fresh legislation—though this, of course, will be a matter for Parliament to pronounce upon—will in my view be necessary in order to overcome the difficulties which have arisen this year and the dilemma posed by the decision of the court of reconciling the requirements of the law with a fair, coherent and reasonably economical system of administration.

However, despite the questions raised by the decision I do not believe that it would be in the interests either of responsible government or of justice to individuals to pursue the matter remorselessly to the House of Lords. Such a course would be time-consuming and, whatever the outcome, would create new confusion. This is not a prospect which I would willingly contemplate. It is time that this unhappy affair—for some aspects of which I have already apologised to the House, and for which I do so again—was ended.

Therefore, the licence holders concerned will be asked to ignore the revocation letters they have received. All overlapping licences will run to a date 12 months from the first day of the month in which they were issued. I shall also make arrangements as quickly as possible to refund the additional £6 paid by those who took out overlapping licences and who subsequently responded to requests to pay the additional amount.

There has also been weekend controversy over what counsel for the Home Office appeared to have said before the Court of Appeal. As the House knows, Mr. Roger Parker, QC, has already made a personal statement to explain not only that what he said was not intended to bear the interpretation which has been put upon it but that it was not said either on my instructions or on those of the Home Office. I would add that it would in my view be unthinkable for any Home Secretary, with the special responsibilities of his office for upholding the rule of law, to question the vital independence of the judiciary or to propound the doctrine that the Executive is in any way above or outside the law.

Mr. Ian Gilmour

It is entirely fitting that this Government, who have shown such contempt for the law and for the rights of the individual, should now fall foul of the courts. It is ironic that the right hon. Gentleman, who has been better in this respect than his colleagues, should be the victim. We welcome his characteristic apology, his characteristic decision not to appeal to the House of Lords and his intention to set the financial matters right.

Is it not unprecedented that the same Minister should be censured by the Ombudsman for maladministration and then condemned by the Court of Appeal for contravening the Bill of Rights? Surely that is a unique double. The House will be glad that the Home Secretary was exonerated by Mr. Parker's statement yesterday, as, indeed, we expected. As Mr. Parker was instructed by the Treasury Solicitor, why did not the Treasury Solicitor instruct him to withdraw his offensive remarks before the case came to an end? I hope that the right hon. Gentleman will tell us why that instruction was not given.

Finally, will the right hon. Gentleman, with his right hon. and learned Friend the Attorney-General, ensure that in future all counsel instructed by the Government are explicitly ordered not to threaten the courts of this land by any future action by the Executive? Will the right hon. Gentleman bring to the notice of the Government the lesson of this case—namely, that the rights of the individual are far more important than the convenience of the Executive?

Mr. Jenkins

As regards the right hon. Gentleman's last point, I made my attiof my statement. I believe that Mr. Parker made his position perfectly clear. It must be within the knowledge of many hon. Members, whether or not they are tude quite clear in the closing sentences lawyers, that it is not possible for any client to instruct a lawyer on exactly what he says in the conduct of a case. The matter has been made clear and Mr. Parker has made the fullest possible statement—

Mr. Maxwell-Hyslop

Answer the question.

Mr. Jenkins

I shall answer the question asked by the right hon. Member for Chesham and Amersham (Mr. Gilmour), for whom I have considerable respect, and not the remarks of the hon. Member for Tiverton (Mr. Maxwell-Hyslop), for whom I have little respect.

Mr. Parker took the fullest opportunity to make a clear statement yesterday. I cannot believe that any hon. Member of unprejudiced mind would not regard that as satisfactory. On his own initiative he made it clear that there were no instructions from me or from my Department which in any way justified his doing what he did.

I repeat that this has been an unhappy affair. I hope not to be associated with such an affair again, and I do not think that I have been so involved in the past. It is true that we have had a hard time from the Ombudsman and from the Court of Appeal. It is curious that their criticisms have been in different directions, although I take no comfort from that. The Ombudsman complained that we did not make it clear at an earlier stage that we would pursue more vigorously what were subsequently construed, to the surprise of many people, as illegal acts.

Mr. Stonehouse

Is it not clear that, to say the least, the Home Secretary has had some very bad advice on this matter? Does he agree that events have shown that the matter has been dealt with with an excess of arrogant bureaucracy and an absence of common sense? Will he now re-examine other methods of financing the BBC, apart from the direct grant, which could avoid this sort of occurrence in future?

Mr. Jenkins

The Home Secretary, in common with other Ministers, is responsible for the advice upon which he acts. Alternative methods of financing the BBC are very much the concern of the Annan Committee, and they are under current consideration.

Mr. Beith

On reflection, does the right hon. Gentleman agree that it is no bad thing that the Executive should be brought to book from time to time in this way, and that the right hon. Gentleman and other Ministers should eat humble pie? Does he agree that the humble pie should produce some fairly sharp indigestion in his Department?

Mr. Jenkins

I have already indicated that what is done in my Department is my responsibility. Although I do not wish to comment upon my digestive system, I have already indicated my view on the events which have taken place. I must make it clear that there was never any intention on the part of anyone in my Department to act outside the law. We were mistaken as to what the law was in accordance with the views which had been held for 20 years. We never had the slightest intention of acting outside the law. This is clear from our acceptance of the judgment of the Court of Appeal. Our position was not by any means an impossible or unreasonable one to take up, as was indicated by the fact that the High Court found in our favour. The position is that two courts have pronounced, one in one direction and one in another. I accept the judgment of the Court of Appeal, the superior court.

Mr. Lee

Will my right hon. Friend accept the congratulations of some of my hon. Friends, including one or two who may not be such unqualified admirers as others, who believe that his attitude in this case has been proper and generous? I ask him to contrast this case with the extraordinary behaviour that occurred during the short-lived and turbulent existence of the Industrial Relations Act, when the Court of Appeal was called upon to meet on Sundays to decide some of the extraordinary decisions that arose from the court at first instance, it giving the impression of being under pressure from the Government of the day.

I ask my right hon. Friend to pass a word of advice to the Secretary of State for Foreign and Commonwealth Affairs. Does he not agree that, if the Ocean Islanders succeed in first instance in their action against the Attorney-General, the Government will accept—

Mr. Speaker

That last matter is sub judice.

Mr. Jenkins

Even if it were not sub judice, I have enough on my hands without dealing with the Ocean Islanders. I am grateful for what my hon. Friend has said.

Mr. Fletcher-Cooke

Does the right hon. Gentleman recollect that the Ombudsman, though finding various matters of maladministration, exonerated the right hon. Gentleman for taking the advice of his departmental legal advisers? However, on reflection does the right hon. Gentleman think that it would have been better in such a highly-charged political matter not to have relied merely upon his departmental legal advisers but to have taken the opinion of the Law Officers?

Mr. Jenkins

At this stage I believe that anyone would have been better advised to have taken the advice of someone who had given the right advice. I think that that must be the natural position. The advice that was given to me was given in good faith by experienced people.

Mr. Madden

In considering any review of the television licensing system, will my right hon. Friend undertake to include the arrangements through which only 200,000 pensioners out of a total of 3 million living alone are entitled to con cessionary television licences? Is he aware that this is a system which is riddled with anomalies and injustices?

Mr. Jenkins

I am well aware that there are certain anomalies in relation to this matter. It is a subject which we have been prepared to consider in the past and will, no doubt, consider again in the future, but it does not arise directly out of this particular problem.

Mr. Ronald Bell

Is the right hon. Gentleman aware that, much as I would like him to resign on other grounds, I would be very sorry if he felt compelled to do so on a matter like this? Will he consider whether the ideal distribution of functions in these matters is that Ministers' discretion in a matter of this kind should be questioned in Parliament? Does he agree that the courts have been forced to move into this sphere because Parliament no longer calls Ministers to account for the exercise of their discretion as it should because of the increasing rigidity of the party system?

Mr. Jenkins

The hon. and learned Gentlemen's last point goes very wide of the statement. Courts have a function to perform in calling Ministers to account, though Parliament has the primary duty to do so. The past is settled, but if it were necessary to deal with the future position I would introduce legislation and let Parliament pronounce upon it.

Mr. Mike Thomas

Is my right hon. Friend aware that many of my constituents will applaud the primary motive in this matter and deplore the statement of the Master of the Rolls who said that the average person's reaction to this piece of sharp practice would be "Good luck to them, we wish we had done the same"?

Mr. Ridley

On a point of order Mr. Speaker. Is it in order for an hon. Member in this House to question the judiciary in a judgment which has just been given? Would it not be right for the hon. Member to withdraw his last remark?

Mr. Speaker

If the hon. Member for Newcastle-upon-Tyne, East (Mr. Thomas) is questioning a decision of the judiciary, he must do so by means of a motion.

Mr. Thomas

I am not doing so, Mr. Speaker. Will my right hon. Friend agree that many of my constituents would prefer the judgment of my grandmother to the self-righteous pomposity of Opposition Members when she said about another dubious activity "It may be legal, but it ain't nice"?

Mr. Jenkins

I shall not be drawn by my hon. Friend except to say that there is a difficult balance to strike, as has been proved in this case rather unusually, between what is fair and what is legal. We must be bound by what is legal and try to make it as fair as possible

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