§ Mr. Archy Kirkwood (Roxburgh and Berwickshire)I beg to move amendment No. 1, in page 2, line 23, leave out 'may' and insert 'shall'.
This is a probing amendment. I do not think that it will come as any surprise to the Minister that the sponsors of the Bill wanted to push the Government a bit further on some of the detail of the commitments that were made by the Government in Standing Committee. The House should and will know, since it has now had an opportunity to study the reused format of the new Bill, that there have been substantial departures from the Bill that was given a Second Reading in the House. The hon. Member for Birmingham, Erdington (Mr. Corbett) has already adverted to that fact. We have gone from a Bill that was essentially a substantive measure of 16 clauses and one schedule to a Bill that essentially contains three clauses — although there are five, including the financial provisions and the definitions—and two schedules.
The change from a substantive Bill to an enabling Bill leaves a lot of power in the Government's hands in terms of the subsequent regulations that the new Bill will spawn. The Minister adverted to that point. It is important for the sponsors of the Bill to try to stiffen the Government's commitment as much as possible. That is the purpose of my amendment.
I had an interesting experience when researching the relative meanings of the words "may" and "shall". In my experience, statutes that are passed for the purpose of enabling something to be done are usually expressed in permissive language. I am only a provincial Scottish solicitor, but I have had some experience in such matters. Prima facie, the words "shall be lawful" or "such and such a thing may be done" import a discretion and must be construed as discretionary unless there be anything in the subject matter to which they are applied or in any other part of the statute to show that they are meant to be imperative. That is clearly the position.
I refer the Minister to a passage in the seventh edition of "Craies on Statute Law". The Department should ponder that passage in future. At page 285, under the heading,"'May' sometimes equivalent to 'shall''', it states:
It is, however, a well-recognised canon of construction, as Lord Cairns said in Julius v. Bishop of Oxford"—I do not think that that is a reference to the hon. Member for Oxford, East (Mr. Norris), who unfortunately is not able to be with us today—that 'where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised and the court will require it to be exercised.'''948 That is the end of the quote, but I shall continue the reference to Craies's text because it goes on to quote what Lord Blackburn said. He said:The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right.In some circumstances therefore it could be argued, and no doubt lawyers will argue, that the use of the word "may" in the context of this Bill would have to be legally considered as "shall". I do concede, however, that in the argument that we had in Standing Committee on this issue, the Minister of State won by a long head in terms of the number of statutes that he produced that use the word "may". I was able to come up with only a sprinkling, but it was a significant sprinkling, of statutes that use the word "shall", and my point was perfectly well made.I understand, however, that, if an obligation is placed on the Government and in addition they are tied to a time limit and a process of consultation, they could get into an untenable legal position. If they tie themselves to a mandatory period and come across unforeseen obstacles in consultation, they may not be able to comply with their own legislation. That would be absurd. The point discussed in Standing Committee is still valid and needs to be given proper consideration.
As I say, the reason for tabling the amendment is to show that the Bill has undergone major changes. It is no longer a substantive Bill. It started as an ambitious measure, containing provisions to protect third parties, to prevent excessive retrospection and to allow retrospection only in exceptional special cases. It set out carefully worked out procedures and time limits, dealt with exemptions, rights of redress, and appeal procedures arid had a wide scope in its schedule. It was so clearly drawn and had been so well worked out not just by me but by the hon. Member for Islington, South and Finsbury (Mr. Smith) and others before me that it drew an accolade from the hon. Member for Nuneaton (Mr. Stevens) who said that not for a long time had he read such a clearly written Bill.
I hope that, in the course of making the regulations that will be produced by this new enabling Bill, the Minister of State will be able to draw on some of the work carried out in drafting the provisions of the original Bill. I am sure that he will understand if in the course of debate on this amendment we seek to firm up what is left. I am sure that he will also understand when I say that this is not the Bill that the sponsors wanted. It is now restricted to local authorities and some cynics—I may not number myself among them — will say that central Government are looking after their own interests and piling the hassle factor on to local authorities. That is certainly true in terms of the restrictions in the Bill as it stands.
The Minister of State will understand why we repeat and read into the record again our frustrations about the fact that he said that the Government's objection to this measure was an objection on grounds not of principle but of expediency, time and money. Of course those are important factors, but the sponsors of the Bill believe that an opportunity to make more substantial progress has been missed. More than any other single area, that applies in the area of health.
We noticed carefully the Minister's statement about the Government's position on medical records. That is welcome as far as it goes, but he will understand that those of us who sponsored the Bill do not feel under an obligation not to knock on his door in the future. Perhaps 949 that will not happen in this Parliament, but in the near future we shall certainly return to a front-line attack. Let no one make any mistake about this, that there is a feeling in Parliament, at least in this Parliament — I cannot speak for Parliaments that may be elected in future — that medical records should be embraced within the scope of a measure of this kind.
I was interested to hear the Minister of State claim that the Government have made some progress. That is true. However, that argument can be stood on its head to some extent. The Government made progress in 1980 with the provision of access to education records by taking the power in primary legislation to allow access to educational files. That happened seven years ago, but nothing has happened since. Although it is true that the Government have, to their credit, passed the Data Protection Act 1984, the Minister of State's claim that he is making all possible progress at the best possible speed must be scrutinised very closely. I am sure that the Minister of State will understand that the sponsors of the Bill feel that a valuable parliamentary opportunity has been missed.
I want to consider the importance of the words "may" and "shall" to the undertakings given by the Government in Committee which are certainly welcome as far as they go. In Committee, the Minister of State gave an undertaking that the Government would seek to make regulations in housing, education and social work in Scotland by the end of 1988. He said that the Government would seek to use their best endeavours to do that. He also said that comparable provisions will be made for Northern Ireland, although for technical reasons that must be achieved by an Order in Council and not through the mechanism in this Bill.
The Minister of State gave the same undertaking for England and Wales with respect to education and social work, but insisted on a further qualification for housing for England and Wales. That particular aspect of housing has specific reference and importance to the mandatory versus the permissive provision of the amendment.
An undertaking was given in Committee on 1 April by the Minister of State. With reference to housing records in England and Wales he said:
this Government will use their best endeavours to make regulations by the end of 1988.He then said:but because of the obligation to consult and the need to make it plain that these consultations will not be mere window dressing, the Department''—of the Environment—wishes me to say that the Government cannot say with 100 per cent. certainty that they will make regulations. However, I can assure the Committee that the likelihood of our failing to make any regulations at all … is remote." — [Official Report, Standing Committee C, 1 April 1987; c. 59.]We subsequently queried the detail of that commitment. The Minister for Housing, Urban Affairs and Construction kindly responded to a letter that I sent to him. I should quote two or three sentences from that letter for the information of the House. Referring to the Government's commitment, the Minister said:I am writing to let you know that we are fully committed to making all possible progress with the necessary regulations once your Bill is enacted. There will be no back-sliding on our part as you seem to fear.But an essential part of that progress towards a binding and effective scheme of access is, as you and your co-sponsors recognised, consultation with the local authority associations. 950 This we shall do at the earliest practicable opportunity. We will seek their views on the operational implications of the regulations for their members.He concluded his letter by stating:But it follows that we have to put in a reservation to cover the possibility, however remote, that the Associations might convince us that, even after amendment, the proposed regulations were impracticable. If that were to happen, no Secretary of State could, in good faith, bring such regulations to the House.I fully understand the Minister of State's difficulty— he is acting as an agent of the Department of the Environment — but the clear implication is that we are talking not about a potential delay in introducing regulations if there are unforeseen difficulties with the consultations, but about regulations becoming impossible to introduce. I do not understand why the Department contemplates such difficulties in relation to England and Wales. The Minister of State said that the Scottish Office had told him that in all three areas in Scotland, including housing, there was no reason why an unqualified commitment could not be given. What is good enough for the Department north of the border should be good enough for the Department in London.As the Minister of State will know, the practice of granting unfettered access is used increasingly by housing authorities. I have a list, which is not up to date, of more than a dozen local authorities which already allow unfettered access to housing records. They include The Wrekin, South Somerset, Lewisham, Barnet, Birmingham, Brent, Copeland and Ealing. Those authorities are successfully practising what the Department of the Environement is running scared of—if my interpretation of the information that it has given the Home Office is correct.
The Association of Metropolitan Authorities, the Association of County Councils, the Association of District Councils and the Convention of Scottish Local Authorities have expressed warm support for the principle and general approach of the Bill. They may have some difficulties with the nitty-gritty of the detail, but all the local authority associations are already on board. I do not foresee major impediments that would make regulations impossible to introduce. I understand that they may not measure up to the Minister of State's timetable of 12 months—all reasonable people would accept that—but I do not understand why the Department contemplates that the regulations will become impossible to introduce.
Perhaps the most important point is that the Department says that there are difficulties with the consultation process. But that process started on 6 December 1984. The hon. Member for Norwich, South (Mr. Powley) sought the views of the Under-Secretary of State for the Environment on ways in which public sector tenants could have better access to information on them held in their landlords' files. The Minister replied:
My Department has today written to the local authority associations, to organisations representing tenants' interests, and to other interested bodies, to seek their views about how such information can be made more readily available. Public sector tenants sometimes believe that their landlords' files contain misleading personal information. In this area, and subject to proper safeguards, they ought to be able to check that mistakes are not being made. A copy of the consultation letter is in the Library." — [Official Report, 6 December 1984; Vol. 69, c. 238.]951 The letter, dated 6 December 1984, was sent to local authorities. It advocated the extension of the rights of access by tenants to the personal files held on them by their landlords.Taking all those factors together, the Bill's sponsors are right to be suspicious of the Department's approach. I do not hold that against the Home Office, because I understand the Minister's difficulty, but we are disappointed that we cannot have more reassurance from the Department of the Environment about the Government's position on housing records.
Clause 3(3) states that the regulations may make different provision for different authorities. The local authorities have said that it would be helpful if the Government made it clear that that can be used only to set up different regulations to apply to different types of authority, such as social work authorities as opposed to housing authorities, and should not be used to apply different regulations within the same class of authorities—for example, housing or social work authorities. I am not making that very clear. I think that the fears are unfounded, but it would help if the Government could say that they intended to set up different classes of records applying to different types of department and not to individual departments within the same class of authority.
The Minister of State may view the amendment prima facie as an unfriendly act. I hope that he will understand that it is motivated by a genuine desire on the part of the sponsors of the Bill to put it on record that further refinement and clarification of the Government's position is needed. The amendment is also intended to make it clear that, if the Government do not use their best endeavours to stick to the timetable that they have given us, a whole series of people, with me at the head, will be knocking on their door and asking why.
§ Mr. WaddingtonI acknowledge the fact that in Committee the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood) discussed precedents for the use of "shall" instead of "may". He has nothing to apologise for. He did interesting research and turned up with precedents that few of us realised existed, but he will agree with me that precedents for the use of "shall" are pretty thin on the ground.
The hon. Gentleman raised the important matter of housing records. Our undertaking about the making of regulations in respect of access to housing records in England and Wales differs from the unconditional guarantee in respect of Scotland, and each Department has to make its own judgment on the practical issues that arise. The Department of the Environment examined the possibility — albeit extremely remote — of proposed regulations going out for consultation and being found to be irrevocably flawed. The Department of the Environment was concerned, too, about burdens upon local authorities. Bearing in mind its heavy responsibilities in such matters, it did not feel that it could give absolute guarantees in advance of consultations with the local authority associations. As I said in Committee, the Department of the Environment was anxious to make it absolutely plain that, when it said that it would consult, it meant it, and that the consultations, as I said in Committee, would not he mere window dressing.
These are difficult judgments for individual Departments to make. I must take responsibility for the form of the undertaking, but the hon. Gentleman has 952 acknowledged that various Departments were involved in the exercise. I was the Minister responsible for gathering together the various strands that emerged from the Departments.
My remarks about the Department of the Environment do not mean that that Department would be deterred from making regulations simply because of opposition from local authorities, even if such opposition arose. The Department would step back from doing that only if it was wholly convinced, following consultations, that there was no way of making practicable regulations. That, indeed, is a remote possibility.
As the hon. Member for Roxburgh and Berwickshire said, my hon. Friend the Minister for Housing, Urban Affairs and Construction wrote to him because he was anxious to reassure him that the Department is fully committed to making all possible progress with the necessary regulations once the Bill is enacted.
In practical terms, the amendment would place on the Secretary of State a duty to make regulations even if the regulations were unworkable. Clause 3(5) provides that regulations are to be made subject to affirmative resolution, so if either House rejected the regulations the Secretary of State would be in breach of his statutory duty through no fault of his own. That would be an impossible situation and entirely justifies sticking to the word "may" and eschewing the word "shall" in a case of this nature.
With regard to clause 3(3), I assure the hon. Gentleman that the Department of the Environment, the DHSS and the Scottish Office have no intention whatever of treating differently individual authorities within any one class of authority as listed in the schedule. To make it absolutely plain, that means that all Housing Act authorities in England and Wales will be treated in precisely the same way, so I hope that the worries expressed in some quarters are fully dispelled. I am grateful to the hon. Member for Roxburgh and Berwickshire for raising the matter again on Report. I hope that I have satisfied him that "may" and not "shall" is the right word.
§ Mr. CorbettThe Committee ended up accepting that "may" meant "shall" except when it meant "may" and the Minister persuaded the Committee of the Government's view that with regard to education records the Education Act 1980 provided sufficient powers. I should like to raise a further point in that regard. If the Minister cannot answer it today, perhaps he will be kind enough to do so at a later stage.
The hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood) and I received an intriguing letter from the Universities Central Council on Admissions, known to generations of parents as UCCA, expressing the view that it would be regrettable if the Bill allowed access to the reports prepared by head teachers and used by those making university selections. In an astonishing letter, Mr. Philip Oakley, general secretary of UCCA, stated:
Most university selectors when consulted on this matter said they would have grave reservations about the substitution of open testimonials for confidential reports.No one was talking about testimonials, open or closed. We were merely hoping that the judgments made about admissions to universities would be factually based opinions and statements of fact. I appreciate that, within that, assessments must inevitably be made, but supporters of the Bill maintain that such judgments and assessments 953 must be based on something more substantial than hunches, so that people can see why a particular conclusion has been reached.The letter continues:
They fear that such testimonials would lose the benefit of the frank, careful, sympathetic advice on each candidate based on detailed knowledge of his or her school record".That is an astonishing statement. I do not necessarily complain about UCCA, but I must point out that in trying to find out the address of that establishment I noticed from the letter that it operated from behind a box number, which spoke volumes about the view that it was expressing. To be fair, UCCA explained in a subsequent letter that it used different box numbers for different parts of its operation because it helped with the handling of mail. Superficially, however, it seemed highly appropriate in the light of the views that it had expressed.I should be grateful if the Minister would bear that in mind, because under the original phrasing of the Bill it does not necessarily appear that those records would come within its provisions. If someone is between educational establishments, for example, finishing at a comprehensive school and applying for a place at a university or a college, that person is not, at that stage, in full-time education, in that he or she has finished at one place and has not received a decision whether he or she can go on to university or college. It seems to me — I hope that I carry the hon. Member for Roxburgh and Berwickshire with me — that it would be quite ludicrous if such records, prepared by headmasters, were excluded from the regulations that will be made in due course. It would be even better if, when preparing those reports to back up applications for university places, headmasters or senior school staff discussed them with the people concerned, before sending off the records.
§ 2 pm
§ Mr. WaddingtonThe hon. Gentleman has raised an important point, but I cannot give him an answer today. However, I shall ensure that the attention of my right hon. Friend the Secretary of State is drawn to the point that he has made and that he receives a reply and complete answer to it as soon as possible.
§ Mr. KirkwoodIf the Minister of State will allow me to be presumptuous enough to suggest it, I think that he should go back to the Department of the Environment and ask what progress has been made on the consultations that were started some years ago. I make no complaint about the difficulties that the Minister is in, acting as he is as an agent for the Department of Employment, but he will not be privy to the detailed negotiations that have been going on, or that may have been going on. My information is that that process was started some years ago. I should have expected——
§ Mr. Waddingtonrose——
§ Mr. KirkwoodI shall ask the Minister another question, if he could deal with it at the same time. Some progress could reasonably have been expected by now.
While I am still on my feet, the other matter with which I am sure the Minister will be able to help me is this. I completely forgot to explain to the House that we had decided to take education completely out of the Bill for the simple reason that that provision already exists for 954 England and Wales in section 27 of the Education Act 1980, and for Scotland in section 2 of the Education (Scotland) (No. 2) Act 1980. Some letters have been addressed to me expressing doubt about whether education has been dropped from the Bill. Therefore, for the avoidance of any doubt, it would be helpful if the Minister could confirm that the undertaking that he has given will make use of the provisions of section 27 of the 1980 English legislation and of section 2 of the 1980 Scottish legislation. It would be to the advantage of the House if the Minister could clarify those two points.
§ Mr. WaddingtonI can certainly help the hon. Gentleman. I am assured that, in relation to education in Scotland, the powers to make regulations under section 2 of the Education (Scotland) (No. 2) Act 1980 are sufficient for that purpose.
I should have mentioned before, and perhaps by way of intervention I can advise the hon. Gentleman now, that the Department of the Environment consultations that were begun in December 1984 were addressed essentially to the general question of access to housing files, and to whether that should be by statutory or voluntary means. The consultations were not concerned with the detailed machinery with which the Department wishes to deal under the regulations.
§ Mr. KirkwoodI beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn