§ Sir Ronald Bell (Beaconsfield)
I beg to move amendment No. 1, in page 2, line 4, leave out "permanently".
My hon. Friend the Member for Macclesfield (Mr. Winterton) informed me yesterday that, unfortunately, owing to an engagement in his constituency, he would not be able to move the amendment standing in his name. I am therefore moving it in his place.
May I ask you at this point, Mr. Speaker, whether we are considering amendments Nos. 1, 2, 3 and 4 together, or are they being taken separately?
§ Mr. Speaker
I am much obliged to the hon. and learned Gentleman. That was the very matter that I was looking at. The House is asked to discuss with amendment No. 1 the following:
§ No. 2, in page 2, line 6, leave out 'congenital'.
No. 3, in page 2, line 6, leave out from 'by' to end of line 8 and insert
'some other mental or physical disability of similar nature and permanence'.
No. 4, in page 2, line 8, at end insert
'and are expected to remain so handicapped over a long period of time'.
§ Sir R. Bell
I am much obliged to you, Mr. Speaker. I gathered from the documentation that that was the position, but I am also of the opinion that under the rules of procedure I can move only one amendment and not the four, so that I am in fact moving amendment No. 1.
§ Mr. Deputy Speaker (Mr. Richard Crawshaw)
The hon. and learned Gentleman is entitled to speak to amendments Nos. 2, 3 and 4, but not to move them.
§ Sir R. Bell
That is what I understood to be the position, Mr. Deputy Speaker. 809 It will be realised that amendment No. 1 and amendment No. 4 are in practice the same amendment. They go together, and if the House were to accept the first—and I do not know the attitude of anybody to it at the moment, including that of the hon. Member for Dunbartonshire, West (Mr. Campbell)—although the second cannot properly be described as consequential, it would make a mess of the Bill if it were not then accepted.
§ Mr. Clement Freud (Isle of Ely)
On a point of order, Mr. Deputy Speaker. We seem to be without a Sergeant at Arms. Are we safe?
§ Mr. Deputy Speaker
If the hon. Member will turn around he will see that the Serjeant at Arms has returned.
§ Sir R. Bell
After that it is appropriate that I should propose to leave out the word "permanently" and replace it bya long period of time".Amendment No. 1 applies to one of the subsections defining the people for whose benefit the Bill is framed. The category is limited to those who are not only substantially but permanently handicapped.
Plainly, the basic intention of the Bill, which is, I suppose, primarily one to assimilate the law of Scotland to the law of England, is to benefit not people who are temporarily ill, but those who have a long-term handicap. One does not in the least quarrel with that. I suppose that I am a little ungracious in having gone so far as I have without saying complimentary words to the hon. Member for Dunbartonshire, West, and assure him that he may be perfectly happy about the future of his Bill, though we obviously hope not merely to say good things about it but to improve it a little more than it has already been improved.
It appeared to some of us that a person who was handicapped for a considerable period of time—which might be as much as five or 10 years—should not be excluded from the effects of the Bill. It may be said that if someone is to be handicapped within the terms of the Bill for that length of time, he might be considered permanently handicapped, but that is almost a subjective question. If it is not known at the beginning of the period for how long he will be handicapped, I 810 suppose that a medical practitioner might be willing to certify that he was permanently handicapped.
However, if it is known with virtual certainty that he will be handicapped for about four years, nobody knowing that could say that that man was permanently handicapped in the way described in the Bill. It therefore seems a pity that this excellent Bill, which we should all applaud, should exclude from its benefits those whose incapacity is long term but not permanent.
Merely omitting the word "permanently" would allow anyone who is substantially handicapped by illness, even if for only a matter of weeks, to come within the ambit of the Bill. That is plainly not the general purpose, nor is it desirable. I do not express any confident opinion about whether people who are merely ill should have concessionary travel, but I can see that there might easily be disadvantages and administrative inconveniences.
Amendment No. 4, in the name of my hon. Friend the Member for Macclesfield proposes to insert at the end of clause 2 (1)(c) the words:and are expected to remain so handicapped over a long period of time.That is not an ideal form of words, I suppose. However when one considers what form of words should be used to define what I have been describing—that is, someone who has been substantially incapacitated over a long time but not permanently—it is not that easy to find a better phrase than the one used in amendment No. 4.
During the points of order my mind wandered and I wondered whether I could think of a better phrase. However, I am unable to suggest a better phrase. It would therefore be a question of degree. This matter may be challenged in the courts. There is nothing unusual in the courts' being asked to interpret the words of a statute where there is a dispute, or for the courts to be asked to give a meaning that is one of degree. I have often said, and more often thought, that courts have a bad habit of wiping out discretions by defining them. A discretion is something that is meant to be exercised by the person to whom Parliament has committed it. All too often when the courts get hold of a discretion 811 they turn it into law by laying down grounds upon which that discretion has to be exercised, failing to realise that once discretion is formulated into a set of rules of guidance it ceases to be a discretion. Nevertheless, I am of the opinion that where the alternative is to stipulate a number of years, which would not be suitable. A form of words that rests on a judgment of degree is acceptable and could be suitably administered by the courts.
I do not know the attitude of my hon. Friend the Under-Secretary of State for Scotland or of the hon. Member for Dunbartonshire, West who has made such excellent use of his good fortune in the ballot by introducing this praiseworthy bill. However, I believe that it is possible that at least the Under-Secretary will say that the purpose of the Bill is to assimilate the law of Scotland in this regard with the law of England because the divergence was, I believe, accidental.
Originally both Scotland and England were covered by section 29 of the National Assistance Act 1948. Inadvertently section 29 was repealed in relation to Scotland. Therefore, I can see that my hon. Friend the Under-Secretary might say that we should have the same form of words because we are restoring a congruence. However, I do not believe that that would be a valid argument and because of that it may be that my hon. Friend will not advance it.
The reason why I say that is not a valid argument is that section 29 of the 1948 Act has been amended 12 or 13 times. I am not sure whether the number is 12 or 13, because it would require a lot of research to discover that. However, it has been amended many times. That section ends up in a form which is not the same as the law of Scotland will be if the Bill is passed, which I trust it will be.
I draw the attention of the House to an important difference in this same part of the law as dealt with in the Bill. In England at present the position is that the local authority, with the approval of the Secretary of State, and to such extent as he may direct:In relation to persons ordinarily resident in the area of the local authority shall.So in the English law the matter is partly mandatory, but in the Bill it is not 812 mandatory. Therefore, there is this significant difference as well as others. I shall not go through the 12 amendments to the Act, but there is already not congruence of language between section 29 of the 1948 Act, as amended, and the terms of the Bill.
Therefore, merely to say—I am sure that my hon. Friend the Under-Secretary will not do so—that these amendments would lead to a form of words which were not exactly the same as those in section 29 of the 1948 Act is not, in the circumstances, a valid argument, especially when there is an advantage of substance in making the amendment inasmuch as if it is not made undoubtedly there will be people who are disabled in the substantial and significant way that is set out in the Bill who will be denied the possibilty of travel concessions being made for them by the local authority.
There is no reason why that should happen. I am sure that my hon. Friend the Under-Secretary and the hon. Member for Dunbartonshire, West will agree with me in substance, though I am sure that the Under-Secretary will have been briefed with subversive arguments as to the meaning of the word "permanent". I shall await his comments with interest. Meanwhile, I move amendment No. 1 and commend with it amendment No. 4 which, as I say, is part of amendment No. 1 but has to be separate because it comes later in the Bill.
The next amendment to which I wish to speak, though I cannot move it at this stage, is No. 2, in the name of my hon. Friend the Member for Totnes (Mr. Mawby), which seeks to leave out " congenital ". This amendment deals with the same paragraph of clause 2 and defines one of the categories of beneficiaries as those who:are substantially and"—as it stands at present—permanently handicapped by illness, injury, defective hearing, defective sight or congenital deformity or by such other disabilities as may be prescribed by the Secretary of State by regulations.I just wonder why the deformity has to be congenital—unless it was because the draftsman felt that the word "illness" in page 2, in line 5 was itself not comprehensive in that a congenital deformity might be excluded from the substantial 813 and permanent handicap caused by illness, injury and so on, and therefore he put in "congenital", as it were, to stop the gap. I do not know exactly what my hon. Friend the Member for Totnes had in mind. Perhaps it was the risk that there could be an incapacitating deformity which was not caused by illness or was not congenital—if, for example, it developed after birth and yet was not due to injury. If it develops after birth, it cannot be congenital.
My hon. Friend the Under-Secretary looks impressed by that point, and I am very glad that he is. That must be so. The benefit of at least a partly classical education has, I am sure, been shared by him and me, and we know what "congenital" means. In politics we sometimes talk about congenital idiots in a rather loose way, but in the Bill we must give the term a rather stricter meaning than that. "Congenital" means something that happens at birth. If it supervenes after birth, it could very well be left out of the definition.
Again, there is nothing in particular gained by putting it in—at least I hope not. But I shall, obviously, listen very carefully to what my hon. Friend says about that. Of course, it is something that we can consider together with amendment No. 3, which—still on clause 2—saysleave out from 'by' to end of line 8 and insert some other mental or physical disability of similar nature and performance'.My hon. Friend and the hon. Member for Dunbartonshire, West will see that if amendments Nos. 2 and 3 were both accepted, any gap which might arise through leaving out "congenital" would be covered by the wording of amendment No. 3. Amendment No. 3 proposes that the words which at present are in paragraph (c)such other disabilities as may be prescribed by the Secretary of State by regulationsshould be replaced by the wordssome other mental or physical disability of similar nature and permanence.That is a much better phrase for covering up anything that is omitted and yet is of the requisite degree of seriousness and permanence.
I think that my hon. Friend and the hon. Member for Dunbartonshire, West will agree that there is always something to be said against leaving things in a 814 statute to be prescribed by the Secretary of State by regulations. Incidentally, I do not think that it appears in the English statute, so again, we are almost assimilating the two more closely by the amendment. In any case, I do not think that it is a very serious argument that when we are passing a Bill to apply in Scotland only, it should be absolutely word for word on all fours with the English statute, particularly when we know that it will not be that, anyway. Surely, with Scotland having its own system of law, one can just look at the merits of the thing. We know the job that hon. Member for Dunbartonshire, West is seeking to do, and which, indeed, he has done very well. We know that the Standing Committee has transformed the Bill absolutely, with the total concurrence of the hon. Member for Dunbartonshire, West.
§ Sir R. Bell
Yes, indeed. So we are here, on consideration on Report, turning our minds to a Bill which is substantially different from that to which the House gave a Second Reading. I am certainly not making any point against the Bill on that matter. The hon. Member for Dunbartonshire, West will detect no note of hostility whatever or of criticism of him in anything that I say, because he has put his opportunity to very good use. I say at once that the radical amendments in Standing Committee undoubtedly improved the Bill. They widened its scope. They were admirable.
However, it seems to me that that was done in rather a last-minute operation. The hon. Member for Dunbartonshire, West had the rather unusual and happy experience of getting his Bill through Standing Committee in one very short sitting. There are those present who would envy him that fortunate experience. He will even get his Bill through consideration on Report in a relatively brief time. Then we shall proceed very happily with him to Third Reading. However, when it is done in that way, even with the advantage which the hon. Member had of Government assistance in the drafting, there is nevertheless the possibility of small gaps being left. It appears to me, and it has appeared to some of my hon. Friends, that there are these small gaps 815 and they would be filled by accepting the amendments.
There is no amendment on the Amendment Paper on that point, so I cannot make any more than a passing reference to it, but I would have been rather happy if this Scottish Bill approximated more closely to the English legislation and if there had been a small mandatory element in it, because one knows that the implementation of these total discretions can be very patchy and can lead to quite a lot of ill-feeling near the boundaries. I think that we have all had that experience, whether we are in England or Scotland, in relation to the subsidisation of buses.
§ Mr. Deputy Speaker
Order. The hon. and learned Gentleman is saying what he might say on Third Reading, but I do not think that it comes within the terms of this amendment.
§ Sir R. Bell
I accept your indication, Mr. Deputy Speaker, and I shall say it on Third Reading. I was merely adding a gloss to what I said earlier on the anticipated criticism of the amendments which might come from the Under-Secretary of State for Scotland—namely, that they introduce into the Bill some wording that is not to be found in section 29 of the English Act.
Of course, the long title of this Bill does not claim it to be a Bill assimilating the law of Scotland and England, so there is no reason why we should feel constrained to turn aside from the admendments because they introduce changes of wording. However, I plead guilty to embroidering that slightly in saying that in a way I was sorry that there was one assimilation that had not been made. Perhaps if one had given thought to it a little earlier we might have had an amendment down to that effect.
In conclusion, I warmly congratulate the hon. Member for Dunbartonshire, West on the Bill. Not everyone has the hon. Gentleman's good luck in the ballot, and not everyone having it turns it to such good use and advantage. Nothing that I have said in commending these amendments to the House should in any way detract from our appreciation of what the hon. Gentleman has done. I hope that he, in a similar mood of bonhomie and conciliation, will say that he is 816 delighted, if not entranced, by the amendments and will be happy to commend them to the House.
§ Mr. Deputy Speaker
Order. Before I call the next hon. Member, may I refer to the point of order raised by the hon. Member for Isle of Ely (Mr. Freud) about the temporary absence of the Serjeant at Arms? I am sure that the House would like to know that the Serjeant at Arms had come round to speak to Mr. Speaker about the point of order raised about the Refreshment Department. He was not in dereliction of duty. As the point of order will be on the record, I felt that the explanation should also be on the record.
§ Mr. Lawrence
Further to that point of order, Mr. Deputy Speaker. It never entered my mind that there was a dereliction of duty by the Serjeant at Arms, but merely that he was unwell. That was a matter of much greater concern to us than any such thought that was falling below the very high standard of duty that such an Officer shows to the House.
§ Mr. Freud
Further to that point of order, Mr. Deputy Speaker. I should also like to say that there was never the smallest suggestion of dereliction of duty. I believe that the entire House has the greatest respect not only for the office but for the execution of duty of those elected to perform the office of the Serjeant at Arms.
I should like to begin by congratulating the hon. Member for Dunbartonshire, West (Mr. Campbell) on his good fortune. It is perhaps ironic that it should be I who does that, because on this day a year ago I, who had been fortunate in winning first place in the ballot for Private Members' Bills, lost it when the Government were defeated on the day prior to Report.
I speak not only as one who is the Liberal spokesman on Fridays, which is unlike other political parties, which nominate their people perhaps for subjects rather than on a calendar basis. I thought that I should make that clear. I should like to join the hon. and learned, and recently ennobled, Member for Beaconsfield (Sir R. Bell) in saying what a splendid small but important Bill it is. In my opinion, it is better on leaving Committee than it was before, which is 817 the point of Committee stages, and very much to be welcomed.
It is rare to find that of four hon. Members who have tabled amendments not one has attended the House in order to move them. Perhaps they have good reason for that, and it is not up to us to inquire.
It seems to me that the reason for the first amendment to leave out the word "permanently" is that in the National Assistance Act 1948, which possibly accidentally, possibly not, deleted Scotland from its provisions, the word "permanently" appeared. I have always felt that because something happens in one country it need not necessarily happen in another. I am totally against the principle that if one of the component countries of Great Britain introduces legislation the next country to embrace that concept should not try to make it better.
I believe that we should look at the overall intention of the Bill. There is no validity in confining those who are handicapped, or in stopping those who are either permanently handicapped or congenitally handicapped from doing something that they may not otherwise do.
§ Mr. Lawrence
Why does the hon. Gentleman believe that it is even remotely sensible that Scotland, which is part of Great Britain, should have a different law from England? Why on earth should not the administrative laws that we pass—I do not mean those that involve the separate legal system in Scotland—be automatically applied to Scotland?
§ Mr. Freud
There are difficulties in the separate administration, because the two countries have different legal systems, but that is irrelevant to the amendments that we are discussing. My point is that each time a Bill comes before the House we learn something by hindsight. For that reason, two Fridays ago we welcomed an amendment in another Private Member's Bill in which a six-month period was requested, so that we could consider the effects of the Bill. I believe that any period between the passing of a Bill and its implementation is helpful perhaps in finding a better way to put it into legislative form.
My argument is a simple one. I fail to see why the word "permanently" 818 was in the National Assistance Act 1948. I therefore fail even more strongly to see why it should now be added to the legislation when it applies to Scotland.
I have no great brief for Scotland. As with many hon. Members, I was an absentee landlord until I came to the House. I found that the remuneration in this House made it difficult for me to keep up my land. My other connection with Scotland was as rector of the University of Dundee, an office that I resigned after six years and in respect of which I have an excellent successor.
Scotland has always led in education and has been to the forefront in the formulation of laws. It should certainly try to do better than the humdrum laws of England, and might well put in the odd word that failed to appear in the English legislation.
If in Scotland concessionary travel for the handicapped is to be a way of life, let the concession be as wide as possible. I do not understand why, if a person is permanently handicaped, he should not have conecssionary travel. I fail to understand why the nature of the illness that is instrumental in getting a person a free place on public transport should be congenital or not congenital in order to qualify. The criterion should be whether a person is handicapped and has the misery and extra expense inherent in the condition suffered. Surely the idea of a compassionate Bill is to be helpful and provide aid for those who need it most.
I therefore very much agree with the hon. and learned Member for Beaconsfield, and hope that, without wishing to cause dissent and divide the House, but perhaps having the ear of the Under-Secretary of State for Scotland, the hon. Gentleman will consider widening the scope of the Bill. That, in effect, will simply help a slightly larger number of people who could do with and would welcome this enlightened legislation.
The hon. and learned Member for Beaconsfield was unhappy about the wording of amendment No. 4, tabled by the absentee hon. Member for Macclesfield (Mr. Winterton). The hon. and learned Gentleman argued that the wordsand are expected to remain so handicapped over a long period of timewere not quite appropriate.
§ Sir Ronald Bell
I was not uphappy with the wording but merely conscious that those words will be interpreted in the courts. I said that I had tried to think of a more appropriate form of words, but could not do so. To that extent, I am happy with the wording, but it is not ideal.
§ Mr. Freud
I am grateful to the hon. and learned Gentleman for that explanation. I tried also to think of a better form of wording, but only came up with less appropriate phrasing. If one used the positive sentiment in the amendment and twisted it with a negative approach, it would mean that the facilities would be accorded to people not expected to get better for a long period. I think that the House will agree that that would be more cruel and more heartless. After all, it is the spirit of the words with which we are concerned.
I have no desire to detain the House. I offer my congratulations to the hon. Member for Dunbartonshire, West. I hope that the legislation will speed its way to the statute book. It will be welcomed by the many organisations in Scotland which feel deprived about provision for the handicapped in Scotland compared with that for the handicapped in England.
§ Mr. Lawrence
I am sorry to see you, Mr. Deputy Speaker, in the Chair this morning. It appears that you are always in the Chair when I am pursuing what is, I am afraid, becoming almost a crusade, namely, an attempt to stop legislation from reaching the statute book when it is not only ill-conceived—that is a matter of personal opinion or party political dispute—but ill prepared or inadequately defined, in accordance with the principles of the Renton committee, which we are trying to apply.
I recall that you were in the Chair last Friday, Mr. Deputy Speaker, and, no doubt, will be in the Chair for the rest of today. My only consolation is that you were in the Chair one evening this week when I made a speech that lasted for one minute. I hope that that will substantially encourage you, although I do not wish you to think that that was necessarily a precedent for what I hope will be useful contributions to the various legislation before us today.
820 I congratulate the hon. Member for Dunbartonshire, West (Mr. Campbell). I wish him and his Bill well. Any measure of social good sense and progress is to be welcomed, whether it applies to Scotland or anywhere else. In due course I shall be making a point about the disparities of legislation between the two countries within the United Kingdom.
I am grateful to my hon. and learned Friend the Member for Beaconsfield (Sir R. Bell), for being a guide to me in trying to improve legislation. Sometimes lawyers are despised in this House as elsewhere, but, after all, it is the lawyers who have the practice of watching the operation of legislation, and are perhaps better placed than others to judge whether words will be misconstrued, wrongly used, or simply misleading.
Lawyers are better placed to judge whether public money is likely to be wasted on disputes over words in the courts of law. In a sense it is a paradox that the lawyer who is a Member of Parliament is working against himself in trying to reduce the amount of work provided for lawyers who are not Members.
It is unfortunate that the Bill, which is a good Bill, should have had so little time spent on it on earlier occasions. We must spend a little time on it at this stage. I regret that we must do so, because I should like to proceed as quickly as possible to the next item of legislation, with which I am most concerned.
The Second Reading of the Bill was purely a formality, and the Bill was not debated. In Committee, the whole proceedings lasted barely 15 minutes. Some of that time was spent, as is the tradition, in congratulating the Chair on the excellent way in which it had conducted itself. A large part of that 15 minutes was spent by hon. Members associating themselves with the good nature of the Bill. That means that some of the questions now asked by my hon. and learned Friend the Member for Beaconsfield, myself and, perhaps, other hon. Members, have to be considered for the first time.
From my knowledge of my hon. Friend the Under-Secretary of State for Scotland, his answers will be reasonable and well considered. If he is unable to give a full answer when he replies, we shall, in due course, receive some elucidation on the points raised.
821 If we decide to amend the Bill along the lines of the amendments which have been tabled, the legislation will be out of phase with the English Bill, and we shall be doing no very great service to the cause of united legislation. I, for one, shall not vote to do that. It is important to note that we may be detecting inconsistencies, irregularities or problems in the wording which might fall to be considered in the English legislation. There is the question of the meaning of the word "permanent". It must mean, surely, that which is conceived to be permanent at the time that the provision takes effect. It cannot possibly mean that it would not apply to any illness which may be capable of a cure. Medical science is such that, almost weekly, great strides are taken to cure illnesses and afflictions which, at present, are thought to be incurable. New methods of operation are introduced.
One example is hip replacement. There was a time when anybody who suffered from a serious malformation of the hip—either arthritic, developing during the course of one's life, or congentital—looked forward to a lifetime of incapacity and handicap. As a result, that sort of person would be entitled to some sort of concessionary fare if he was unable to work or to receive the other advantages of the able-bodied citizen.
We know now that a handicapped person can go to a number of great hospitals throughout the land and be returned—from a functional point of view, and perhaps from a mental point of view—to a position almost as good as new.
Shall vie say to those people "Yes, you will continue to have the concessionary fare that you enjoyed when you were so unfortunately handicapped"? What provision is there in this legislation—either express or implied—to deal with a situation where somebody who was deemed to have such a permanent illness at the time the concessionary fare was given, no longer has that permanent incapacity? Is the concessionary fare to be withdrawn?
§ Mr. Matthew Parris (Derbyshire, West)
Can my hon. Friend, as a lawyer, tell us what other dangers there may be over the definition of "permanent"? If someone suffers from a seemingly per- 822 manent condition and it is cured, surely it shows, not only that that condition is not permanent, but that it never was permanent in the first place. Will it then be said that the concessionary fare was wrongfully claimed in the first place?
§ Mr. Lawrence
Of course my hon. Friend has raised an important aspect of the definition of the word "permanent". I cannot answer that other than by supposing that as a matter of common sense "permanent" can never be considered in legislation which provides a benefit as other than what is conceived to be permanent when the benefit is given. We are not given the powers of foresight. We cannot look into our crystal ball and see these things. There may be a time when a handicapped person afflicted by an illness such as hip malformation will be cured.
§ Sir Ronald Bell
Will not my hon. Friend agree that when we have these uncertainties it is much better to make the terms explicit in the legislation. Some times the courts reach unexpected decisions—
§ Sir R. Bell
My right hon. Friend the Secretary of State for Social Services might feel that the courts sometimes reach unexpected decisions. In this case we would not want to have to introduce a Bill to ratify the actions of local authorities or of the Secretary of State for Scotland because they had authorised the payment of various payments of money to someone whom they believed to be permanently injured, but who was not, and who was liable to repay the money because the district auditor challenged the matter.
§ Mr. Lawrence
That underlines the importance of giving proper consideration to the meaning of "permanent". I could speak at considerable length on this matter. I will not do so, I simply ask about the meaning of the word in practice, how it will operate and what machinery there is for stopping it from operating when the situation changes. We should throw some light on this murky word in this context.
That brings me to the other definition and limitation of the words "illness", "injury", "defective hearing", "defective sight" and "congenital deformity". 823 There is absolutely no point in having these words in the Bill if the next few words can be taken by the Secretary of State to cover any eventuality of permanent or substantial handicap. The next words are:or by such other disabilities as may be prescribed by the Secretary of State by regulations.That paragraph gives the Secretary of State complete discretion to prescribe disabilities which are not substantial and which are not permanent illnesses, injuries, or cases of defective hearing or sight or congenital deformity.
My experience of the courts teaches me that the phrase:or by such other disabilities as may be prescribed by the Secretary of State by regulations.does not necessarily limit the courts to restricting the meaning of the Secretary of State's power to that which is covered by the preliminary words in that clause. Some courts may say "Yes, it must be read in the light of that restriction." Others may say "No." There is a conflict in the law on whether this is an all-embracing power, given as a matter of discretion to the Secretary of State."
On the basis of its being an all-embracing power, what is the point of having the provision which limits or defines the handicap? If the handicap is substantial and permanent, the object of the exercise is to ensure that those who suffer from it in a substantial way in our society and who have difficulty in earning a living like other people, should receive some assistance from the Welfare State which does not degrade or humiliate them. This is society's way of saying that no man is an island and that everyone must pull together to improve the lot of handicapped people in order to ensure that they are as welcome users of the facilities of society as anyone who is able-bodied.
If that is the purpose behind the proposed legislation, what is the point of churning out a clause with restrictive words when all we are saying is that the Secretary of State should use his common sense and give that facility to anyone who comes within the category of suffering from a serious handicap. Surely "serious handicap" is enough. We would 824 get rid of all the doubts about the word "permanent" by removing it from the Bill.
There are some handicaps of a substantial and permanent kind which are also illnesses and are congenital as well, but which would not necessarily mean that the sufferer should have the benefit of the concessionary fare. One such illness is cystic fibrosis, which is a substantial and permanent illness and is also congenital. However, through the miracles of modern science care and treatment are available, particularly if doctors are aware of the illness and the way in which it manifests itself. If new-born babies are not gaining weight and the right attention is given to them—they are given sweat tests—it may be diagnosed that they are suffering from this illness. If they are given regular physiotherapy, dietary supplements and antibiotics, their serious handicap will be kept well under control. These people will grow up to be healthy members of society, well able to get about and they will not need concessionary fares, even though they fall within the categories prescribed in the Bill as qualifying for concessionary fares.
That is an example of where public money should not be spent on those who do not need it and an example of where the discretion of the Secretary of State should not be contained by restrictive words which may force him to allow concessionary fares to those who are, in every other sense, able to earn their living and carry on good and useful lives.
I should like elucidation on the mechanics for deciding where the regulations should apply. Who will decide in a local government area whether a handicap is permanent or substantial or comes within a category of handicap about which the Minister has made regulations?
Will it be a registered medical practitioner? If so, where is that requirement laid down in the legislation? If it is difficult for a handicapped person to get to a doctor in order to obtain a certificate, will a certificate from a midwife, a State registered nurse or another official be sufficient?
Will it be necessary to have the approval of a consultant at a hospital, or will a handicapped person merely have to present himself to an official of the local authority traffic department? There must 825 be clarification in the Bill, otherwise all sorts of anomalies may arise.
I could speak at length about the principles involved, but I am immediately concerned about the answers to some of those questions. We are trying to make the Bill more sensible and more easily operated so that it comes within the category of useful legislation and out of the category of gobbledegook and rubbish which, with excellent motives, we are so often constrained to pass.
§ Mr. Raymond Whitney (Wycombe)
I beg to move amendment No. 2 in the name of my hon. Friend the Member for Totnes (Mr. Mawby)—
§ Mr. Deputy Speaker
Order. The hon. Gentleman may speak to the amendment. Only one of the group has been moved.
§ Mr. Whitney
Before speaking to the amendment. I should like to add my congratulations to those of hon. Members on both sides of the House to the hon. Member for Dunbartonshire, West (Mr. Campbell) on the contribution that he is making to the welfare of the people of Scotland.
It is a matter of concern that this lacuna in the adminstrative law of Scotland has occurred.
§ Sir Ronald Bell
Is my hon. Friend aware that the lacuna is inadvertent? The repeals schedule of the 1968 Act repealed a section in the 1948 Act that applied to the United Kingdom without anyone noticing that it was doing so.
§ Mr. Whitney
As always, the percipience of my hon. and learned Friend's remarks gives us pause for thought about some of the actions that we perpetuate in the House. As a total beginner in the affairs of Scotland, I wonder how many other areas of law suffer from the handicap that has caused the introduction of this worthwhile Bill.
There is a need for total or relative congruence between the laws governing England and Wales on the one hand and Scotland on the other. My hon. Friend the Member for Burton (Mr. Lawrence) made an important point, but there is a much stronger case for progress and improvement and we must therefore accept that if there are deficiencies in the drafting of the legislation, many times 826 amended, we should not be content to rest on the mistakes of the past.
I hope that we are a progressive House which seeks to improve the lot of the citizens of this country. We must therefore improve the legislation passed by the House to achieve that objective and that is what we are about today.
We should congratulate ourselves on the fact that, at least on this occasion, in all the plethora of legislation to which we subject ourselves, we have an opportunity to consider, not with a sense of dilatoriness but with a sense of measured calm, the fine tuning of what is already a good Bill.
I hope that the hon. Member for Dunbartonshire, West will agree that we are seeking to ensure that what we put on the statute book for the citzens of Scotland will be an improvement. It may be that the citzens of England and Wales will later be able to benefit from that improvement.
§ Mr. Parris
Does my hon. Friend agree that that is the only possible justification for legislating separately for England and Wales on the one hand and Scotland on the other, since duplication is a time-consuming business?
§ Mr. Whitney
My hon. Friend has raised a question of the widest import. As an English Member I sometimes feel a little disturbed about the amount of time devoted in the House to the 5½ million splendid citizens of the United Kingdom who live north of the border and that devoted to the interests of the 49½ million who live in other parts of the realm.
§ Mr. Lawrence
Is my hon. Friend aware that the only reason why we are discussing the Bill is that the Social Work (Scotland) Act 1968, which repealed section 29 of the 1948 Act, did so without any consideration, discussion or examination by the House? Therefore, if consideration is not given at the proper time errors occur and much public time and money are wasted in putting them right.
§ Mr. Whitney
Again my hon. Friend the Member for Burton makes a valuable contribution. We have to accept the parameters within which the House and the constitution work. We should take advantage of the separate system for Scotland and get our legislation right.
§ Sir Ronald Bell
I am horrified by the use of the word "parameter". I want to support the Bill, but I have an inflexible rule that I always vote against parameters.
§ 11 am
§ Mr. Whitney
The classical education of my hon. and learned Friend the Member for Beaconsfield (Mr. Bell) is greater than mine. The inclusion of the word "congenital" appears to have been the work of an enthusiastic draftsman in 1947. It puts a serious limitation on the Bill's ability to provide for concessionary travel for handicapped persons in Scotland. I am not worried that it might put the legislation out of phase with the law as it applies to England and Wales.
The word "congenital" is both supererogatory and otiose. We must examine the meaning of the word. My hon. and learned Friend referred to that and to the benefits of those with a classical education who can discern the function of the word. I did not have the benefit of such an education. I escaped from Latin at an early age after being given the chance to learn German. My university education involved classical Chinese, which is not particularly helpful when interpreting the English language. To the extent that I understand the English language I believe that "con" means "with" and "genital" refers to the genes. "Congenital" therefore means "with the genes". If a deformity occurs which was not there at birth some individuals could be refused concessionary fares. That is not the Bill's intention.
§ Mr. Parris
I hesitate to question hon. Members who have a better classical education than I. The word "congenital" certainly means that a condition must exist "with birth". However, that could cover a propensity to a disability. A deformity could manifest itself later in life. Such a deformity might not have been evident at birth but its potential might be in the genes.
§ Sir Ronald Bell
The Minister must deal with this issue. Surely the point is that Cicero did not know about genes but he did know about the word "congenital". Therefore, "congenital" cannot relate to genes, it must relate to coincidence at birth.
§ Mr. Whitney
My hon. Friends are taking us from the realms of classicism 828 through lexicography and medicine and into the law. It cannot claim expertise in any of those realms and, since we are not debating classical Chinese, I must be careful about my comments.
In using the term we must be careful of the lawyers and give them all possible help. As my hon. Friend the Member for Burton said—and who is better qualified than he to proffer such an opinion?—we have a responsibility to make the lawyer's job as easy as possible even though that might make the job less lucrative. The inclusion of the word "congenital" is totally unnecessary and possibly limiting. Our interest is in people who "are substantially and permanently handicapped by illness, injury, defective hearing, defective sight or" deformity. Whether the handicap is congenital, whether it develops because of a weakness in the genes, or whether we take the Ciceronian version does not affect the case one iota. The case for the removal of the now contentious word "congenital" is overwhelming.
The citizens of Scotland will be grateful to the hon. Member for Dunbartonshire, West (Mr. Campbell). I hope that the blessings of the Bill will fall upon them. There will be even greater blessings as a result of improvements, despite the disappointingly perfunctory treatment which these important issues were given earlier in the Bill's passage. I look forward to the citizens of the United Kingdom as a whole benefiting from the deliberations in which we are engaged this morning.
§ Mr. Ian Campbell (Dunbartonshire, West)
I shall try to answer some of the points raised in the debate. I am honoured that so much attention is being paid to my Bill.
The hon. and learned Member for Beaconsfield (Sir R. Bell) said that the Bill is now quite different from that which the House approved on Second Reading. It was approved on the nod because it was low on the list of Private Members' Bills. I thank the Under-Secretary of State for Scotland for suggesting that the scope of the Bill should be widened to include people whoare deaf or dumb; or are substantially and permanently handicapped by illness, injury, defective hearing, defective sight or congenital deformity or by such other disabilities as may be 829 prescribed by the Secretary of State by regulations;The hon. Member for Isle of Ely (Mr. Freud) talked about the enlightenment normally shown by the Scots in these matters. The fact that we are debating the Bill today proves the point. This is one of the few Private Members' Bills that might come to fruition in this Session of Parliament. Progress has been achieved because a second Scottish Standing Committee examines Private Members' Bills pertaining only to Scotland.
The reason that there is a discrepancy between Scotland and England and Wales, is that the Social Work (Scotland) Act preceded similar legislation for the rest of the United Kingdom. Scotland again leads the field. It has been mentioned that section 29(1) of the National Assistance Act was removed at the time of the Social Work (Scotland) Act. Concessionary travel throughout the country is a comparatively new extension of our caring society. It took some time to recognise that Scotland did not match up to England and Wales.
§ Sir Ronald Bell
Am I wrong in thinking that for 20 years, from 1948 to 1968, Scotland did match up to England? Surely the repeal of schedule 9 of the 1968 Act was an oversight.
§ Mr. Campbell
It was an oversight. Concessionary travel is a comparatively new part of the scene. This section of the 1948 Act was used as a vehicle by local authorities to put concessionary travel into practice. It was only after it had been put into practice that differences emerged.
Amendments Nos. 1 and 4 in the name of the hon. Member for Macclesfield (Mr. Winterton) would mean that Scottish local authorities had to offer concessionary travel to those not necessarily handicapped but likely to be so for more than a short time. The words proposed are not in section 29(1) of the National Assistance Act. In my opinion, they tend to be vague and would perhaps give Scottish local authorities more scope than that accorded to local authorities in England and Wales. It has been suggested that this might not be a bad thing. My intention in introducing this Bill, was to bring Scotland to the same level as England and Wales. To do as the amendments suggest would go beyond the scope 830 of my intentions. I have received much assistance from the Government on the Bill, which has also received the support of the Shadow Cabinet. It would be wrong perhaps to extend it as the amendments propose.
§ Sir Ronald Bell
I am sure that the hon. Gentleman will agree that the proposal would not fall outside the scope of the long title of the Bill. Like the hon. Gentleman, I am a pure Scot, from the same part of Scotland. Scotland set the example. What is the detriment that he sees in Scotland slightly setting the pace again? If my hon. Friend the Under-Secretary of State should turn out to be happy with the amendment, would the hon. Gentleman still be happy?
§ Mr. Campbell
If that happened, I would certainly accept the advice of the Minister.
The effect of amendment No. 2, in the name of the hon. Member for Totnes (Mr. Mawby), would also be to widen the scope of the Bill. The word "congenital" appears in the appropriate section of the National Assistance Act 1948. That may not be a complete answer, but no problems in the operation of concessionary fares in England and Wales for handicapped persons have been reported under existing legislation. If problems were to occur, the Secretary of State has power, prescribed by regulations made under this clause, to cover any group that proves to have been excluded.
§ Mr. Whitney
It is important for the House to be clear. Did I understand the hon. Gentleman to suggest that the amendment would widen significantly the terms of the Bill if it were to cover someone substantially handicapped by deformity when he wants to limit the Bill to those substantially handicapped by congenital deformity? There are two different issues at stake. Is he saying that he is anxious to limit the Bill to those substantially handicapped by congenital deformity?
§ Mr. Campbell
In clause 2(1)(c) "congenital deformity" describes one particular disability. The provision refers to those persons whoare substantially and permanently handicapped by illness, injury, defective hearing …That covers disabilities other than congenital.
831 11.15 am
Amendment No. 3, in the names of the hon. Members for Thanet, East (Mr. Aitken) and for Yarmouth (Mr. Fell), would avoid a situation where the Secretary of State for Scotland is able to prescribe further categories of persons to whom concessionary travel may be offered. The words proposed to be deleted are a direct parallel to those in section 29(1) of the National Assistance Act 1948. In my opinion. it would be better to have the same powers throughout the United Kingdom. The words proposed to be inserted are unacceptably wide and vague. I wait to hear what the Minister has to say.
I hope that my few remarks and the points that may be made by the Minister will satisfy hon. Members that they should consider withdrawing the amendments.
§ The Under-Secretary of State for Scotland (Mr. Russell Fairgrieve)
We have had an interesting debate. If the hon. Member for Dunbartonshire, West (Mr. Campbell) will allow me, I shall leave my congratulations to him until Third Reading. I have already congratulated him in Committee. I shall content myself at the moment with commenting on the amendments and the speeches made by hon. Members.
I accept the arguments against the amendments put by the hon. Member for Dunbartonshire, West. It would not be my intention to suggest to him that he should accept them. The hon. Gentleman need worry no longer about that. I am, however, in duty bound, as Minister, to comment on some of the points raised by hon. Members. My hon. and learned Friend the Member for Beaconsfield (Sir R. Bell) mentioned section 29 of the National Assistance Act 1948. Section 29(1) has been amended only twice. It is therefore not too difficult to read. My hon. and learned Friend might find it helpful to use the excellent "Statutes in Force", which presents the text in its revised form.
We have had an interesting discussion on the meaning of the word "congenital," in which many hon. Members competed to decide who had the best classical education. I am willing to put myself at the bottom of that league and my hon. and learned Friend the Member for Beaconsfield at the top.
832 I have to cast my mind back a long way to the last time that I read the Shorter Oxford Dictionary, but my memory is that it gave the meaning of the word as "existing from, or dating from, one's birth". I know that no hon. Member wants to delay our next important business, but we could have a long and interesting academic debate with the medical profession about whether a congenital illness could be one that did not show itself for many years.
§ Sir Ronald Bell
Surely the point is that we are seeking to amend the wording of the Bill, which refers to, not congenital illness, but congenital deformity. That is the point that the amendment is trying to meet. The deformity would exist at birth. It need not be a defect in the genes: it could be some physical defect which might have dated from birth, which is not genetic but which produces a deformity later. It appeared to us that in that case it could not be said that there was a congenital deformity. My amendment would deal with that by allowing the benefits of the Bill to be available to someone who had a deformity, which perhaps could not be described as due to illness or injury and was not congenital, yet which was substantial and disabling.
§ Mr. Fairgrieve
I accept those points, to which I shall come in a moment. I would not like you to rule me out of order, Mr. Deputy Speaker, but I was making the interesting point that someone could, technically, have a congenital illness which did not affect him until he was, for instance, over 21. The reason for retaining the word "congenital" is that without it we should be going against the main purpose of the Bill, which is to rectify an anomaly between Scottish and English law. The word also makes it clear that those who have had neither illness or injury are included.
§ Mr. Whitney
I now understand that the main purpose of the Bill is to harmonise legislation. I had been under the impression that the intention was to provide legislation under which concessionary travel could be provided for handicapped people in Scotland.
§ Mr. Fairgrieve
The intention of the Bill, which has the Government's support, is basically to allow those in need in Scotland to have the same facilities as are available in England.
833 I come now to the speech of the hon. Member for Isle of Ely (Mr. Freud), who described himself as the Liberal spokesman for Friday—
§ Mr. Lawrence
Before my hon. Friend does that, can he answer my question, which obviously was not asked with sufficient clarity for the hon. Member for Dunbartonshire, West (Mr. Campbell) to have thought it necessary to answer, but which should be answered? I accept what the Minister says about the need for the Bill to harmonise legislation, but why is it necessary in other legislation to have the definitionillness, injury, defective hearing, defective sight or congenital deformity".if the wordsor by such other disabilities as may be prescribed by the, Secretary of Stateare included?
In other words, does not the Minister consider that those "wastepaper basket" words, for want of a better phrase—or by such other disabilities"—give him such a discretion within the restrictions of the words "permanent and substantial " as to allow for any situation which may reasonably be explained as a substantial and permanent handicap? Why is it necessary to have in English legislation, or in the Scottish legislation, those words whose definition is subject to the problems which my hon. Friend has acknowledged?
§ Mr. Fairgrieve
I can only thank my hon. Friend for giving me notice of that question. The reason that I have not answered it or even attempted to do so is that I think he spoke after the hon. Member for Isle of Ely and therefore I have not yet come to his speech. Whether I shall be able to give him a satisfactory reply to such an erudite question is a different matter.
The hon. Member for Isle of Ely described himself as the Liberal spokesman for Friday. Members of other parties, unfortunately, have to take on more onerous duties and are not limited to certain days of the week. The hon. Gentleman supported the amendments in the interests of Scotland, saying that it would be far better if Scotland did not have the humdrum laws of England.
§ Mr. Lawrence
Does my hon. Friend agree that even that description by the 834 hon. Member was not totally accurate, since Friday is only partly over and he is no longer with us? Perhaps he should more aptly have described himself as the Liberal spokesman for part of Friday. I agree that this reflects the paucity of support that the Liberal Party has in the country.
§ Mr. Fairgrieve
I could discuss power and responsibility, but I had better not. It is a great advantage of Liberal Members that, unlike those in the Conservative and Labour Parties, they can choose their times of attending the House, whereas we must be present all the time.
My hon. Friend the Member for Burton (Mr. Lawrence) said that he was anxious to get on with the next Bill and that he would speak only briefly on this one. He asked, first, for the meaning of the word "permanent". The courts have taken the view that it is a relative term and not synonymous with "everlasting".
My hon. Friend then expressed his concern about the mechanics of deciding where the regulations lie. I will try to answer to the best of my ability, but it is up to each local authority to decide. Local authorities can make any detailed arrangements they think wise. They must decide, for the purposes of existing legislation, who is physically handicapped in a way that affects mobility. They do so by requiring the disabled person to present a medical certificate from his own doctor or to get a special medical examination by a doctor who works for the authority concerned. This works in existing legislation without the need for specific mention, so let us not specify it in the Bill.
My hon. Friend the Member for Wycombe (Mr. Whitney) said that different laws apply to the handicapped in Scotland and in England. He felt that it was our duty to give a fine tuning and honing to this legislation. He took part in the interesting discussion on the word "congenital" and spoke about the need for power to make regulations. The reason for that is that someone might have been omitted in the drafting. In other words, the legislation would still be subject to the scrutiny of the House.
My hon. and learned Friend the Member for Beaconsfield was worried about the omission and wondered whether it 835 were carelessness in that the Social Work (Scotland) Act 1968 repealed section 29 of the National Assistance Act 1948. It might have been a minor oversight that the curtailing of certain discretionary powers for local authorities was not identified, but I must pay tribute to the Social Work (Scotland) Act, which is the basis for the help given to many disadvantaged and needy people in Scotland.
This has been not only an interesting debate but a useful one. I accept on behalf of the hon. Member for Dunbartonshire, West and the Government that we dealt with the Bill very quickly in Committee with the earnest intention of giving to disadvantaged and needy people in Scotland the same opportunities and facilities that exist in England. That can be done quickly with the passage of this Bill and in these circumstances I ask my hon. Friends to respond to the request of the hon. Member for Dunbartonshire. West, which I support, that they either ask leave to withdraw the amendments or do not press them to a vote.
§ Sir Ronald Bell
I am sure that I speak for my hon. Friends when I say that we are grateful for the careful consideration that has been given to our amendments. Naturally we regret that the hon. Member for Dunbartonshire, West (Mr. Campbell) and the Minister do not, after careful consideration, feel able to accept them, but we think it proper not to press them. Therefore, I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.11.34 am
§ Mr. Campbell
I beg to move, That the Bill be now read the Third time.
Our debate this morning was more interesting than I at first realised, bearing in mind the implications of my Bill and the problems of the Private Members' Bill shortly to be debated. I am grateful to the Government for the help they have given me with the Bill.
§ 11.35 a.m.
§ Sir Ronald Bell
When earlier I was moving an amendment, I was invited by the occupant of the Chair to make some of the comments I was then making when we reached Third Reading. I respond to that invitation 836 now with the greatest pleasure because I wish to join in the congratulations to the hon. Member for Dunbartonshire, West (Mr. Campbell) that have been expressed by the Under-Secretary and that I am sure will be expressed to the hon. Member by everybody present today. I am glad that the number of hon. Members formerly present has increased because it wild have been sad for the hon. Member if all the congratulations came from Conservative Members. I feel that he has not had the support from his colleagues today that he should have had and any help that Conservative Members have been able to give has been given happily to make up for any lack of support from other sources. The hon. Member for Isle of Ely (Mr. Freud) has unfortunately had to leave us, but we appreciated what he had to say while he was here.
§ Mr. Lawrence
It will be interesting to see in due course whether the words that have just fallen from the lips of my hon. and learned Friend occasion any response from the Opposition. I shall be interested to discover the strength of the Opposition support for this very creditable Bill.
§ Sir R. Bell
It has not been my experience over the years that words that fell from my lips in this House have excited a positive response from Labour Members: but one never knows. This may be the first and exceptional occasion. However, looking across the Chamber now, I do not think that it is likely.
I return to the agreeable theme of my speech of congratulation to the hon. Member for Dunbartonshire, West upon his good fortune in the ballot—a good fortune that has never attended me. I once drew sixteenth place in the ballot and I put on the statute book the Carriage By Air Act 1961. The hon. Member will not need to be told that that was simply a measure that the Government did not have time for. That was the only way of getting a Bill through when one came sixteenth in the ballot.
Not only did the hon. Member have good fortune in the ballot but he put it to good use. Sometimes Fridays are taken up with highly controversial matters which occupy much time in debate without doing much good. However, I must 837 not run ahead of myself—or run back—because we have experienced much controversy on recent Fridays. The hon. Member sensibly addressed his mind to remedying an obvious though unintentional defect in the law or Scotland. I have, dare I say it, a "congenital" interest, as has the hon. Member, in that law.
I represent an English constituency, but I can say—I do not know whether even the hon. Gentleman can say this—that I have eight great-grandparents, not merely from the Highlands of Scotland but from the county of Argyll. It is therefore a matter of great interest to me that the law of Scotland should be at least as good as the law of England. The hon. Gentleman has made a notable contribution to that end.
Our Friday business has the most salutary and desirable effect of widening one's interests. If this Bill had not come forward on a Friday, I doubt whether I would have ever known as much as I now know about the provisions for transporting handicapped people in Scotland. It may be that some of my hon. Friends have also profited greatly from this opportunity, which we have sought to use to the greatest advantage. I see that the hon. Member for Dunbartonshire, West is preoccupied with a possible error in the transcription of his speech. It would be a great pity if it did not appear accurately in Hansard, since it was a good speech in every way except its conclusions about our amendments. Apart from that, it was a very desirable speech. I gather that the hon. Gentleman can now give me his undivided attention.
I am somewhat surprised at the suggestion that the Social Work (Scotland) Bill 1968 did not cover this ground. I shall not go into specific doubts about it, but there is no doubt the section 29 of the National Assistance Act 1948 was repealed by the ninth schedule. But the Social Work (Scotland) Act 1968, which we are supposed to be supplementing in this Bill by reference to the 1948 Act—not by reference to English legislation but in positive ways—established various functions in the context of social services for Scottish local authorities.
Section 12 of the Social Work (Scotland) Act 1968 seems to be in very general terms. Perhaps the Minister, when 838 he makes his contribution to the debate, will say how the Bill spells out more adequately the powers that it is desirable for Scottish local authorities to have. The section reads:It shall be the duty of every local authority to promote social welfare by making available advice,—which, of course, does not apply here—guidance—perhaps not—and assistance on such a scale as may be appropriate for their area, and in that behalf to make arrangements and to provide or secure the provision of such facilities … as they may consider suitable and adequate, and such assistance may be given to, or in respect of, the persons specified—and so on.
It will probably be said that the term "persons specified" dealt with in the next following subsection does not represent a wide enough category, and that that is what all the trouble has been about.
When one repeals a specific transport section, such as section 29, and then presumably in concept replaces it by general social service provisions such as those in section 12 of the 1968 Act, the moment one begins to specify the recipients of that general dispensation one risks opening up a gap. I suppose that that is the gap that the hon. Member for Dunbartonshire. West is filling by the Bill. It is very fortunate that he should have done so, for apparently the gap has existed now for more or less 12 years, although I suppose that its existence was not realised for quite a long time; in fact, I think that the hon. Member has said that it was when someone came to one of his surgeries that he discovered its experience.
It looks as though the Scottish local authorities ought to be having an indemnity Bill going through the House during the coming week. The coming week has been described by the right hon. Member for Ebbw Vale (Mr. Foot) as invalid direction week. We might very well have had a Bill to ratify and condone the actions of the Scottish local authorities, which have unfortunately, with unauthorised generosity, been looking after the travel requirements of the handicapped for some 12 years until the hon. Member for Dunbartonshire, West addressed his mind to the statutory rectification of this deplorable lacuna.
839 I am a little sorry that the hon. Member did not go the whole way. This is the bit that your predecessor in the Chair, Mr. Deputy Speaker, invited me to say at this point. I was just a shade surprised that he invited me to do so, because I know that on Third Reading one is not supposed to talk about what is not in the Bill. But, thus encouraged, I may perhaps make a passing reference to it, especially since the Under-Secretary of State for Scotland invited the rejection of the amendments on the grounds that they would lead to a discrepancy between the laws of England and Scotland in this respect. The hon. Member for Dunbartonshire, West, in his few eloquent remarks, also regretted his inability to accept our amendments because they would produce a difference in wording between the English and the Scottish statutes.
Against that background, I regret that the mandatory element in the English Act is not reproduced in the hon. Member's Bill. Well, there it is. He has already said his piece on Third Reading. If he had known what I intended to say, he might have said that his faith in Scottish local authorities is so great and so complete, so all-embracing, that he thought it was a matter of supererogation to introduce any mandatory element into the Bill. Speaking with the Scottish background that I have, I dare say that his faith is justified and that he will not see the development of that aspect which has caused the trouble to which I referred about half an hour ago in the administration in England of such things as the subsidisation of bus services and the travel concessions given to old-age pensioners and to handicapped categories in this country. We have undoubtedly found a great sense of grievance among people living on one side of a boundary when the local authority on the other side is more generous in its provision than the local authority in whose area they live.
I am sure that every hon. Member of this House finds it difficult, in answering correspondence, to deal with that grievance. There is not really much that one can say, especially, perhaps, because the grievance is plainly levelled against the local authority in one's own constituency and is making an invidious comparison with the local authority in the neighbouring constituency.
840 I accept the faith of the hon. Member for Dunbartonshire, West and the belief that is embodied in his Bill—and here I am speaking about what is in the Bill and not about what is not in it—that he can leave this matter to the discretion of the local authorities in Scotland, and that it will work without the mandatory backing that is available in England. I do not know whether it is used at all in England but it is there, and I think that the direction can be given. But in Scotland, as I interpret the Bill, it cannot be given.
My hon. Friend the Minister is looking baffled, but, as I understand the position —and I am always willing to be corrected in these matters—there is power in the Bill, in clause 2(1)(c), for the Secretary of State to widen its scope by making regulations. But it remains a discretion in the local authority. There is no power in the Bill for it to be made mandatory. It can be widened, but it remains discretionary. There is a certain element of faith in that.
There is the advantage of not encroaching on the discretionary field of local government. That is an important advantage and not one to be lightly brushed aside. There is the disadvantage of discrepancy in social provision in areas which may be almost unitary in their characteristics. That is less likely, I suppose, in Scotland, where there are fewer people and greater distances, and where people are not packed so closely together, but it may still arise. However, I do not want to appear in the least degree carping or critical of the Bill. If it is not entirely perfect, after the non-acceptance of our amendments, it is not the least a very good Bill.
I am glad that the hon. Member has introduced the Bill. I feel that my hon. Friends will agree with me in saying that the Bill, which we are speeding towards the statute book today—or perhaps I should say speeding towards another place, from where it will slide swiftly on to the statute book, I have no doubt—is one that we are all happy to speed in this way. We have given it the careful consideration that I am sure the hon. Member thinks it deserves. I was happy that he expressed his satisfaction—indeed, almost a sense of being flattered by the attention that it has been given. We are glad that he sees it in that way. I shall have great pleasure in supporting it when 841 you, Mr. Deputy Speaker, put the Question.
§ Mr. Lawrence
I do not wish to detain the House for long because I note that the hon. Member for Glasgow, Kelvin-grove (Mr. Carmichael) is in the Chamber. As a Scotsman he is concerned with concessionary fares for the handicapped in Scotland, but I know that he is anxious—and I share his anxiety—to proceed to the debate on his Bill that follows this debate.
In congratulating the hon. Member for Dunbartonshire, West (Mr. Campbell) again—there must be a limit to the number of times that one congratulates him on bringing this measure forward—I suggest that there is a lesson to be learnt. A private Member's measure which is a small but useful reform, and which has the support of Labour and Conservative Members, and is uncontentious, is likely to be passed long before that of the hon. Member for Kelvingrove. Although his Bill is of considerable importance, it is a subject which has moved the emotions of hon. Members to such a considerable depth that he will have to wait for a long period before it reaches the statute book.
§ Sir Ronald Bell
Why did my hon. Friend jump to the conclusion that the hon. Member for Glasgow, Kelvingrove (Mr. Carmichael) is here in connection with the next debate and not to speak on the Third Reading of this important Bill, and to wish his hon. Friend good fortune in the outcome?
§ Mr. Lawrence
I am grateful to my hon. and learned Friend for raising that point. It links with an intervention that I made during the course of his speech. I reached that conclusion because it was not readily apparent when my hon. and learned Friend sat down that the hon. Member for Kelvingrove was quickly on his feet to take advantage of the pearls of advice that had fallen from the lips of my hon. and learned Friend, who suggested that perhaps Labour Members might show their support for the hon. Gentleman's Bill by speaking about it and giving it their support. I was bold enough, and perhaps presumptuous enough, to intervene to say that I doubted whether any Labour Member would wish to give that support. I realised that the hon. Member for Kelvingrove was con- 842 cerned with the next business, and that is why I presumptuously suggested that he was here in connection with the next Bill. I hope that I was wrong. I have brought the hon. Gentleman to his feet, and I know that he will make a valuable contribution to these deliberations.
§ Mr. Neil Carmichael (Glasgow, Kelvingrove)
I am sure that the hon. Gentleman will appreciate that after the experience of the last few weeks the best help that I can give to my hon. Friend the Member for Dunbartonshire, West (Mr. Campbell) —whose Bill I support, and to whom I extend my congratulations on having introduced it—is moral and then vocal support.
§ Mr. Lawrence
That was a good answer. In so far as I am a stout party, I collapse, and move on to the relevant matter that I wish to raise.
Four matters give me concern, and it would have been inappropriate for me to have raised them at an earlier stage.
First, why was section 29 of the National Assistance Act 1948 repealed so inadvertently? How could parliamentary draftsmen have done such a thing without its being noticed? I understand why the House did not notice it. The House did not debate it, doubtless because it gave a formal and quick reading to the measure that repealed section 29 of the 1948 Act. That underlines the importance of the activities in which we are engaged today. We examine the Bills that pass through Parliament to see whether they make sense or whether errors have been committed. If we do not do that, sooner or later—perhaps 12 years later—the time of the House will be taken up and the efforts of hon. Members will be involved in order to remedy a defect that slipped by because no one thought of it at the time.
The contribution of the hon. Member for Dunbartonshire, West in introducing the Bill is tremendous, but there are a number of other more important measures than the mere correction of a legislative anomaly. I cannot speak for the skill of the parliamentary draftsmen in 1948, but I do not think that that sort of thing would happen now. I am a member of the Consolidation Committee. The parliamentary draftsmen on consolidation matters are first rate, and I give them all credit and tribute for their excellent work.
843 The Social Work (Scotland) Act was introduced in 1968, and the schedule was drawn up—as is often the case, in order to consider what repeals are necessarily involved. Someone in the draftsmen's office must have picked up section 29 of the 1948 Act and read it. He would have seen that the provision stated:A local authority shall have power to make arrangements for promoting the welfare of persons to whom this section applies, that is to say persons who are blind, deaf or dumb, and other persons who are substantially and permanently handicapped by illness, injury or congenital deformity, or such other disabilities that may be prescribed by the Minister.It seems, on the face of it and without explanation, that a parliamentary draftsman reading that decided to put a line through it by appending to the relevant schedule of the Act the words "Delete section 29".
It is worrying that that sort of thing can happen. Since intelligent and skilful people work in the draftsmen's office, it raises the question whether such an action was done for a purpose. Was it considered by the Government of the day that perhaps section 29 was no longer necessary, because they were about to introduce other legislation, which might reach the Statute book before the repeal became effective? If that is so, I am sure that the House would like to know. If not, it seems to be an action that is so utterly inexplicable as to be almost preposterous. Perhaps the Minister can throw some light on that.
Secondly, to date we have received no real explanation of the reason for this Bill, other than that there is an anomaly in the law. Normally, legislation is passed to correct an evil. How many people is this Bill likely to help? If the Bill is so important, and if the anomaly that is being corrected is so substantial, why has it not been noticed before? What tragedies or inconveniences happened in the period of 12 years when there was no section 29? No lawyer in any Scottish local authority had noticed that there was no statutory entitlement to give concessionary fares to the handicapped in these categories. What happened to the handicapped during that period?
All who spoke in Standing Committee thought that there was a need to fill the gap, but what exactly is the gap? That 844 leads on to the point raised by my hon. and learned Friend the Member for Beaconsfield (Sir R. Bell), who asked: if a local authority has been acting as if the Act were still in force, what is its legal position in respect of any expenditure that has been incurred either by the local authority or the Exchequer? We are entitled to a little more information, other than reasons of a technical nature concerning equalisation of the legislation, about why the Bill is important.
The Bill does not get to the root of the problem. It gives local authorities the power to provide concessionary fares only if they so wish. I hope that it will not be long before concessionary fares are given as of right to people who are so seriously disadvantaged by the vagaries of nature or the acts of the Almighty as to be incapable of living the ordinary, happy and constructive lives of those of us who are blessed with better health. However, that may, of course, be a long time coming.
The point has been made, and I see the strength of it, that it is perhaps unfortunate that sometimes a substantial concession is given to the disadvantaged in one area whereas that given a few miles away is much less generous. That means that the disadvantaged are helped or hindered according to where they live. That is a factor in our consideration of whether the rules should apply generally throughout the land, but I acknowledge that in the end it all comes down to finance. If the nation cannot afford the necessary level of welfare out of its productivity, the good things that we want will not be provided.
What is the Government's thinking on the provision of concessionary fares as of right? How much would it cost to provide concessionary fares for all handicapped people at any acceptable level—
§ Mr. Deputy Speaker (Mr. Bernard Weatherill)
Order. I hope that the hon. Member for Burton (Mr. Lawrence) will not persist in his current line of argument. We are debating the Third Reading, not the Second Reading.
§ Mr. Lawrence
Thank you for reminding me of that, Mr. Deputy Speaker. There was no Second Reading debate. I am sure that I shall be forgiven, therefore, if I have strayed beyond the confines of the Third Reading in order to make 845 good that which was omitted in respect of the Second Reading. Since I have asked the question I hope that my hon. Friend the Minister will not stand on his rights and refuse to answer, if not now, at some convenient moment. This is a matter of national concern as to the Government's thinking on the timing and the other aspects of full concessionary fares—
§ Mr. Lawrence
I will try to cage myself, Mr. Deputy Speaker and restrict my remarks to the matters which I am entitled to discuss.
The third matter of concern is not unrelated to the second. How much will the Bill cost the taxpayer and the ratepayer? Two considerations arise on this. In dealing with this question in little more than a word in Standing Committee my hon. Friend the Minister saidThis discretionary concession will not cost a great deal of money"—[Official Report, Second Scottish Standing Committee, 19 December 1979; c. 7.]That was the end of the matter. Those of us who consider our function to be as watchers of the public purse consider that it is important that we should ever be asking benign Governments how much their measures will cost the ratepayer and taxpayer are concerned and, I think, justified, even at this late stage in the Bill, in asking why the Minister cannot tell us how much this measure will cost and why he did not know that figure, or, if he did, why he kept it to himself, in Standing Committee.
The second aspect arises under clause 3. Perhaps I do not understand the way in which these issues are handled in Bills of this kind. The clause seems to me a little odd. It readsThere shall be defrayed out of money provided by Parliament any increase attributable to this Act in the sums payable out of such moneys under any other Act.I understand this to be the clause that deals with the money side of the Bill. The word "Expenses" appears in the margin, but not in the text. It appears to me from that clause that any increased expenditure that is incurred by the Bill will be defrayed by Parliament. That is very interesting if I am right because expenditure on concessionary fares is, by this Bill, 846 being a matter for the discretion of the local authority—that is why the word "may" is used in the relevant parts—to be met out of the local authority's money, that is, money collected by way of rates or from other sources. One would think that the Bill would seek to allocate the cost of the legislation to the local authorities which have to bear the burden of the concessionary fares schemes generally.
I am ready to be corrected, but it appears that the expenses of the Bill will be paid by Parliament. If they are to be paid by Parliament in the form of a grant for concessionary travel for handicapped persons to be included in some other form of grant which the local authority receives from central Government, is this Bill all that is needed? Does not there have to be an amendment to rate support grant orders, or something similar? I should like elucidation on that point and I am prepared to hear that the issue I am raising has no merit because of some factor unknown to me.
The fourth matter is the whole question raised by the Bill concerning the equalisation of legislation as between Scotland and England. Why is it necessary for us ever to have separate Bills for Scotland and England? I would understand it if there had been devolution. I was an opponent of devolution. I do not want to see the break-up of the United Kingdom. As there has not been devolution I cannot for the life of me see why it is necessary for this Parliament to go on for ever having separate legislation for Scotland except in such areas as the law.
The legal system in Scotland is so different. and it is too late to do anything about our legal system even if we in England wanted it and the people of Scotland wanted it. I contend that except in certain circumstances we should have legislation that applies in all parts of the United Kingdom. If we do not—this point was made admirably by my hon. Friend the Member for Derbyshire, West (Mr. Parris)—we shall continue to waste time in this place discussing again Bills the essence of which has been discussed in relation to England. I would like some helpful observation on that, and I am sure that my hon. Friend, the Minister, will be as helpful as he can when he replies.
847 I know that it can be said, and I do not expect it to be challenged, that everything that has taken place in the course of our discussions this morning—and I may not be the only person to speak at this stage of the Bill—has been of importance either for the understanding of the legislation by the people at large in England and Scotland, or for the process of the fine tuning and proper examination of Bills as they come before the House. I hope that I have not raised matters at too great a length so that I have bored the House or caused you, Mr. Deputy Speaker, to be impatient.
§ Mr. Whitney
In rising again on Third Reading to congratulate the hon. Member for Dunbartonshire, West (Mr. Campbell) on what seems to be an all-conquering passage through the House of his inestimable Bill, I must say that it is a matter of some regret to me that I have to tinge my congratulations with an element of sorrow about some of the matters which have emerged, especially as they emerged on Report both in the remarks of the hon. Member for Dunbartonshire, West and those of my hon. Friend the Under-Secretary.
As you may know, Mr. Deputy Speaker, I am a relatively new Member. I have had the privilege of being a Member for some 18 months only. I have a great deal to learn from all hon. Members. However, it is my assumption that when we embarked on legislation we wanted to achieve the best legislation possible. I believe that the process in which we were involved this morning was the best example of that. We were given the opportunity, without the heat and battle of party strife—which is clear when one looks at the vacant Opposition Benches—to search honestly for the very best legislation for handicapped people in Scotland.
Without wishing to reopen the discussion on any of the amendments which were not pressed at the conclusion of Report stage, I regret that the proposition seemed to be completely accepted as being beyond challenge both by the proposer of the Bill and by my hon. Friend the Minister. The proposition was not that we should go for the best legislation but that we should go for legislation which 848 brings the position in Scotland into line with that in England and Wales.
I understand the rationale for that, but it sadly devalues the efforts of the House to promote the best legislation and also brings into question a principle of great importance, to which my hon. Friend the Member for Burton (Mr. Lawrence) adverted—that is, what is the requirement of double legislation, if that is the right phrase, as it relates to Scotland on the one hand and England and Wales on the other?
At the risk of seeming parochial, in that I am speaking for English Members, may I say that it seems to many of us that frequently much of the time of the House that could well be spent keeping an eagle eye on the activities of the Government in their efforts on behalf of the nation is devoted to this parallel consideration of Bills as between north or south of the border. If all that we are seeking to do is to have a total congruence, a total parallelism, that clearly is the most monstrous waste of time and effort.
I recognise that there are systems and important aspects of life in Scotland, not least Scots law, which require an important degree of difference, but if we are to proceed implacably down this road of total congruence it may be that important developments and conclusions will flow from that—not least, dare I say it, the honourable and distinguished posts occupied by my right hon. Friend the Secretary of State for Scotland, other Ministers, my hon. Friends in that Department, and the civil servants devoted to administering the seperate pieces of legislation on Scotland. Many of these activities must surely come into deep and profound question.
This is clearly not the time to pursue the devolution debate. I am not, perhaps, as opposed to devolution as is my hon. Friend the Member for Burton. I think that there may be a lot to be said for it. But I submit to the House and to those hon. Members who represent Scottish constituencies that this is a dangerous road. If they are anxious for devolution but at the same time are anxious for a total congruence of the laws as applied to England and Scotland, there is a danger of illogicality.
849 Worse than that, perhaps what we are being forced to do is to accept second-best law on occasion. That is not our purpose here in Westminister, certainly not this morning when we are indulging in trying to improve what is already an excellent Bill. Therefore, I have more than a tinge of regret that we were unable to persuade the hon. Member for Dunbartonshire, West and my hon. Friend the Under-Secretary to accept the embellishments that were offered.
That being so, I conclude by again offering my congratulations to the hon. Member for Dunbartonshire, West. I know that many of the citizens of Scotland may not have noticed any difference in the absence of the Bill, but at least those who administer the laws and statutes in Scotland will, as I understand it, continue to administer them in precisely the way they were doing before the passage of the Bill through the House.
§ Mr. Whitney
My hon. and learned Friend, as ever, takes the words out of my mouth. Indeed, now they will have the power of doing it legally, and knowing that they do so with the wholehearted backing of my hon. Friends and myself.
§ Mr. Fairgrieve
This becomes a more interesting debate as time moves on. However, I shall be as brief as possible in discharging my duty of answering the various points that have been made on Third Reading.
I am very grateful to my hon. Friends who have stuck with us throughout the proceedings, as I am to such Opposition Members as have done so, particularly the hon. Member for Dunbartonshire, West (Mr. Campbell). I am sorry that the other hon. Member who has been present during the day—the hon. Member for Isle of Ely (Mr. Freud)—is not in his place. He called himself the Liberal Member for Friday. He is now definitely known as the Liberal Member for half Friday. I think we have got that point established.
I turn first to some of the concluding remarks of my hon. and learned Friend the Member for Beaconsfield (Sir R. Bell). Before I come to the particular, I must make the general remark that the Bill now brings us in line with the posi- 850 tion south of the border, which is discretionary and not mandatory.
On the question that section 12 of the 1968 Act already provides local authorities with the necessary powers, I agree that the terms of that section might seem so general that it is surprising that this Bill is necessary. That is probably why the anomaly was not noticed for some time. However, there is an element of doubt, and it is most appropriate for the House to seek to make the position quite clear.
The repeal of section 29 was intentional because it was believed at the time that its provisions were covered by other provisions of the Social Work (Scotland) Act. Unfortunately, the passage of time has shown that there is this small anomaly.
§ Sir Ronald Bell
That is an agreeable way of putting it. No one doubted that section 29 was put there by a deliberate act, but surely it was inadvertence that the provisions applicable to Scotland in the 1948 Act were repealed when they were not replaced in the body of the 1968 Bill. That surely was an inadvertence. One does not want to be critical of the technicians involved, but it must have been inadvertence, otherwise we should not be here today.
§ Mr. Fairgrieve
I accept that that is a viewpoint, but I think that some of the other points that I shall be making will contribute to the answer although they may not satisfy my hon. and learned Friend entirely.
My hon. Friend the Member for Burton (Mr. Lawrence), again showing our educational skill, kept on saying that he would be making four points. I worked it out as six points. Again, I may not have it quite right, but I hope that I shall cover most of the points that he made. However, the point to which I do not intend to respond is his question as to the Government's thinking on concessionary fares in the United Kingdom as a whole. I am sure that my hon. Friend would not expect me to get into the type of trouble into which I would get if I were to comment now on behalf of the Department of Health and Social Security or the Government as a whole on their forward thinking on concessionary fares. That particular answer does not lie within my 851 prerogative or responsibility so I shall leave it well alone.
My hon. Friend asked whether local authority discretion should continue, because, after all we have a national old-age pension. I believe that here the answer is "Yes", because, unlike the pension, concessions are not cash. They can be used only on public transport. Some areas have less public transport than others, so the elderly in such areas could not make as much use of the concession. and the apparent equity of a national scheme is illusory.
Secondly, different areas have different proportions of elderly people, and other characteristics of an area—average length of journeys, for instance—differ. Thirdly, I think that Scottish local authorities have, without exception, exercised their discretion sensibly.
My hon. Friend quite rightly asked how many people would be affected by the Bill. This depends on the exercise of local authority discretion and how many groups local authorities include. But there are over 8,000 mentally handicapped people in Scotland who are not covered by present legislation.
My hon. Friend raised the question of cost. The powers that we are making available to local authorities are discretionary. Costs, therefore, will depend on the extent to which they decide to use these powers and upon the number of groups of handicapped persons to which they decide to offer concessionary fares.
This comes back to the point that has been made in different ways by my hon. and learned Friend the Member for Beaconsfield, who asked why 12 years had passed before people noticed the anomaly. The answer is that it is because the anomaly arose only in 1974, when the Secretary of State for Social Services empowered English local authorities, using the 1948 Act powers, to give concessions to the groups covered by the Bill.
I come to the question of who bears the cost. Local authorities which choose to exercise their discretion under the Bill will do so, and rate support grant money voted by Parliament is affected, which is why clause 3 is necessary.
My hon. Friend the Member for Burton has questioned the reasons for the Bill and how the anomaly was discovered. It is an interesting fact that the father 852 of a mentally handicapped boy in Strathclyde brought the matter to the attention of the Strathclyde regional council, which approached the Secretary of State. The Convention of Scottish Local Authorities also approached the Secretary of State about the matter. There is no evidence, however, that hardship has been caused to a large number of people.
§ Mr. Lawrence
Not to any people. What is the realistic point of the Bill, as opposed to its technical point, if no one has suffered any hardship as a result of this anomaly?
§ Mr. Fairgrieve
I said that there was no evidence of large numbers of people suffering hardship. The reason for the Bill, which we have discussed at length today, is to give the people of Scotland the same entitlement, via discretion, which is available now to those south of the Border.
My hon. Friend said that he was tinged with a little regret that we were not introducing the best legislation but merely bringing Scottish legislation into line with what was already happening south of the Border. I take his academic or practical point, but I think that he will appreciate that in this instance for speed and simplicity, in order to get the Bill through the House, it was thought fit by the hon. Member for Dunbartonshire, West—and the Government agree with him—that the simplest way was to allow the people of Scotland, the disabled, whether mentally, physically or in any other way, to have the same privileges as were available to those south of the Border.
I am sure that my hon. Friend would not want me to pursue the devolution debate, because not only would that mean that the Road Traffic (Seat Belts) Bill would be delayed but if we started off on that road perhaps many Private Members' Bills would never see the light of day.
I conclude where I started. I congratulate again, and finally, the hon. Member for Dunbartonshire, West on the progress that has been made with his Bill. It is clearly appropriate that Scottish local authorities should have the same discretionary powers to offer concessionary travel to handicapped persons as are already available to local authorities in England and Wales. The Bill simply seeks to rectify a legislative anomaly which recently came to light.
853 I am glad that, on the initiative of the hon. Gentleman, the scope of the Bill has been widened to include not only mentally handicapped persons, on behalf of whom concern was originally expressed by the Convention of Scottish Local Authorities and other interested parties, but certain other groups of disadvantaged persons such as the deaf, the dumb and those substantially and permanently handicapped by illness and injury. Here again the hon. Gentleman is simply seeking to place Scottish local authorities in a similar position to those south of the border.
This modest but welcome Bill will enable Scottish local authorities to take such steps as they see fit, within available resources, to assist members of the community whose needs are greater than those of others.
It has the support, in principle, of the Government, and I am very glad to recommend it to the House.
§ Question put and agreed to.
§ Bill accordingly read the Third time and passed.