HL Deb 19 December 1927 vol 69 cc1129-37

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(The Marquess of Salisbury.)


My Lords, before the House goes into Committee on this Bill may I ask the noble Marquess a question in reference to subsection (3) of Clause 1, which reads as follows: If any person acts as a member of any local authority when disqualified under this section he shall for each offence be liable on summary conviction to a fine not exceeding twenty pounds. Does that cover voting? If so, I think the chairman who accepts the vote should also be penalised and I am prepared to move an Amendment to that effect.


My Lords, I will consider the Amendment when I see it, but on the face of it, it seems to me that all that this subsection has reference to is the case of a man who has broken the law in the sense that he has been responsible for the surcharge, and, as he is therefore recalcitrant to the law, he should be disqualified.


I do not know whether the word "acts" covers voting. If it covers voting I wish to move my Amendment.


If the noble Viscount will put down an Amendment on the Paper for the Third Reading I will see that the point is satisfactorily explained then.

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF KINTORE in the Chair.]

Clause 1 agreed to.

Clause 2:

Appeals against decisions of auditors.

(2) In the case of a surcharge the person surcharged may, whether or not he appeals under the last preceding subsection, apply to the tribunal (whether the High Court or the Minister) to which he appeals or, if he does not appeal, to the tribunal (whether the High Court or the Minister) to which he might have appealed, for a declaration that in relation to the subject matter of the surcharge he acted reasonably or in the belief that his action was authorised by law, and the Court or Minister, if satisfied that there is proper ground for doing so, may make a declaration to that effect, and where such a declaration is made the person surcharged, if by reason of the surcharge he is subject to the disqualification imposed by this Act, shall not be subject to that disqualification, and the Court or Minister may, if satisfied that the person surcharged ought fairly to be excused, relieve him either wholly or partly from personal liability in respect of the surcharge; the decision of the Court or Minister under this subsection shall be final and shall not be subject to appeal.

LORD ARNOLD moved, after subsection (2), to insert the following new subsection:— () Where any person is aggrieved as aforesaid and the decision of the district auditor relates to any item or items in an education account, references in this section to the Minister of Health shall be construed as references to the President of the Board of Education.

The noble Lord said: I indicated broadly on the Second Reading the scope of what it is that I desire to effect. This Bill, as was made clear on the Second Reading, increases the penalties on persons who may be surcharged for certain expenditure in connection with local government, and indeed such persons may now be made bankrupt, because the liability for a surcharge, if it is upheld after appeal, becomes a civil debt, and therefore bankruptcy may in certain cases ensue, and indeed, in the case I am afraid of many members of local authorities, would ensue, because as a rule these persons are not at all well-to-do. The law before was much less stringent, and therefore the matter is one which wants very careful watching. In regard to the procedure for appeal against a surcharge, I think it will be agreed that the tribunal should be as trustworthy as it can be made, and such as to command the greatest possible measure of confidence. But that is not true of this Bill as it now stands. It is not true unless the Amendment which I propose is accepted. As the matter now stands, an appellant cannot have very great confidence in one aspect of the tribunal.

A large part of local expenditure is in respect of education. But, as the Bill now stands, in the case of a surcharge which is less than £500 those surcharged can appeal either to the Courts or to the Minister of Health. I think it is quite clear that if the persons who have been surcharged decide not to go to the Courts—and they may so decide—they should then have the alternative of appealing to the Minister of Education rather than the Minister of Health, because obviously the Minister of Health knows nothing whatever about matters of education, some of which are very complicated, and the Minister of Education is the person who ought to adjudicate in respect to an appeal which has to do with education expenditure. It may be said that there is nothing in all this, that if persons are surcharged it will be only in some quite clear or flagrant case, about which there can be little or no doubt, and therefore that the Minister of Health can do what is required perfectly well; but experience shows that that is not so. It is no good saying that the kind of situation which I adumbrate cannot arise, because it has arisen. Things have happened in regard to surcharging which show that there is no guarantee whatever that a very difficult situation may not arise.

The noble Marquess last week said that this Bill was intended to deal with persons who defy the law, and again this evening he has spoken about breaking the law. But the question is what is the law In regard to some of these matters of surcharge it is most difficult to know in advance what may or may not be done. We have in the House of Lords some of the greatest lawyers in the world, and I undertake to say that in a difficult case no one can guarantee what their judgment will be, and indeed it is entirely improbable in a difficult case that they will all take the same view as to what precisely the law is. Therefore the matter is one of great complexity and difficulty. Your Lordships will remember that I referred last week to the Cockerton case, which is very much in point on this Amendment, because this Amendment has to do with education expenditure. As I said last week Mr. Cockerton, who was a local auditor, took the view, quite unexpectedly, that certain subjects which had been included as part of elementary education should not be so included and that they could not properly be brought into the purview of the word "elementary." Nevertheless those subjects had been so included, I believe, for many years. The Board of Education had regarded the matter as quite clear and Parliament had voted the money; but Mr. Cockerton took a different view and his opinion was upheld on appeal. It did not go to the House of Lords because, I think, it was not thought worth while carrying it there after what had been said. At any rate, it did not go there and it really required a special Act of Parliament to regularise the matter and to put right an act which, as I pointed out last week, also had other consequences, though I will not go into them now.

What has happened before in regard to education expenditure may very well happen again. The point I am putting, therefore, is a very reasonable one because education expenditure deals with matters which are very intricate and complicated. What guarantee is there that there will not be another Mr. Cockerton? There may be for aught we know some other Mr. Cockertons lurking behind, anxious to emerge and materialise themselves at the proper moment, and anxious also to point out some matter of very great difficulty in regard to education expenditure. They may surcharge members of local authorities. Should that happen, as it may, then those surcharged possibly, for quite good reasons, may prefer not to go to the Courts, but to appeal to a Government Department and they will have to appeal to the Minister of Health. Surely it is quite an irregular thing in a matter of that sort that the appeal should be to the Minister of Health. Clearly it ought to be to the Minister of Education because it has to do with his Department. I do not know the precise procedure which might be followed in such a case of appeal, but I suppose it would be on the lines of appealing to some tribunal; various officials would have to hear evidence and consider the case. Those officials would tie necessarily officials of the Board of Education and not of the Ministry of Health, who do not know anything about the matter.

It may be suggested that the officials will come over from the Board of Education, and the President of the Board of Education will be consulted and will send his views to the Minister of Health, and that after all in the end that will come to the same thing. I do not think that is a way in which such matters should be dealt with. There is no harm in the Amendment which I propose. On the contrary I can see very many advantages, and if ever an Amendment was uncontroversial this Amendment is. I do not put it forward in any controversial spirit, but with a view to making the tribunal more appropriate and more competent to try this particular class of case. I think the case for this Amendment is a very strong one and I very much hope that the Government will accept it. I beg to move.

Amendment moved— Page 3, line 20, at end insert the said new subsection.—(Lord Arnold.)


May I say one word at the outset with reference to the illustration which the noble Lord has given in support of his Amendment. He referred again to the Cockerton judgment. He seemed to think that the auditor in that case was a busybody who ought to be looked at a little bit askance for the action he took. As a matter of fact, he turned out to be absolutely right. He questioned the law. No doubt it had been held to be different for many years by those who were interested; but it turned out that they were wrong and that he was right as to the law. That really hits very little to do, if I may say so with great respect to the noble Lord, with the present case. The important point which the noble Lord ought to have gone on with and told us was what happened to the members of the local authorities, I suppose of the education committees of the various counties, in consequence of the Cockerton judgment. I do not know what happened; but I will say that had this Bill been in operation then nothing sinister could have happened to these gentlemen because the Bill contains within its clauses provisions under which those who sin unwittingly are relieved of the consequences of their acts. Therefore, whatever mistakes these gentlemen interested in education may have made at the time—as the noble Lord said, it was a very important case and had very formidable consequences—under the provision of this Bill had it been in operation they would have been relieved of the consequences. I think very likely they were relieved.


They were.


They were relieved, and they certainly would have been under this Bill, because whether they appealed in the first instance to the Ministry or to the Courts, there is under this Bill a dispensing power which would have been used in cases of that kind and they would have been relieved of the personal consequences which otherwise might have befallen them. So that so far as the Cockerton judgment is material at all it is an argument in favour of the Bill and not against it.

Coming now to the noble Lord's Amendment, he says that surely in a case which relates to education, the appeal in regard to surcharges of under £500 ought to go, not to the Minister of Health but to the Minister of Education. Of course even under £500, if the incriminated local gentleman wishes, he may go straight to the Court. But supposing, as the noble Lord is perfectly entitled to suggest, he elects to go to the Department instead, the noble Lord asks why he should not go to the Board of Education instead of to the Ministry of Health. This Bill does not propose really to change existing procedure except in so far as it mitigates the severity of it in the manner I have already described. In so far as there has been an appeal to a Ministerial Department, the appeal always has been to the Ministry of Health in cases of this kind, or, I suppose, to the Local Government Board before the Ministry of Health came into existence. So it would really be almost outside the purview of this Bill. I do not mean to say for a moment that it is out of order; but it is outside the intention of this Bill to alter that part of it.

Not only is it contrary to the intention of the Bill, but it would not be advisable. You want uniformity in dealing with this question of surcharge, as to the action of the auditor, because it is the same auditor whether he deals with education matters or public health matters or other matters. And in controlling his decision, which the Minister sitting as a court of appeal would do, you want a certain uniformity. I should like to point out to the noble Lord that if his Amendment is to be any good at all he must go a great deal further. It is not only the Board of Education which is the case in point; there is the Ministry of Transport, the Board of Trade and the Ministry of Labour; all these are involved in exactly the same argument. It does not follow at all that the matter should only be a Ministry of Health question or a Board of Education question. All these other Departments come in.

I am not putting an imaginary case. There was not long ago a case which arose with reference to the wages of tramway employees who were the employees of a local authority. The question was whether they had been overpaid and there was a surcharge. An appeal was entered against that. According to the arguments of the noble Lord the appeal ought not to be to the Ministry of Health but either to the Ministry of Transport or the Ministry of Labour. I do not know which, because they are both evidently involved in such a case. That is an illustration of the elaboration which the noble Lord seeks to put into our very simple little Bill—our simple Bill which is merely to relieve the delinquent local authorities from the consequences of their act when they act unwittingly, and to apply a much more convenient and effective remedy if the delinquency is on purpose. That is the whole scope of the Bill. It is not merely to make the appeal more effective where the delinquent is to blame, but to make it more merciful where the delinquent is not to blame. That is the whole point, and it is not a question of the Ministry of Labour, or the Ministry of Transport, or the Board of Trade, or anything of that kind. That is all entirely beside the mark. We do not interfere with the law as it exists. In so far as the appeal is to lie to a Minister at all, it will lie to the Minister who is responsible for the whole of the audit work—namely, the Minister of Health. I therefore hope the noble Lord will not press this Amendment.


The noble Marquess has not dealt with the argument of my noble friend who sits beside me. His point is this. It is not a question of controlling the auditor, it is a question of entertaining an appeal from the auditor's decision. If that goes to the Courts there is the disadvantage that the Courts are not familiar with the subject of audit. The can, of course, take it in, but they have to learn a good deal about it before they can decide. If, on the other hand, you go to the right Department there you find a good deal of knowledge of the subject. The obvious way would have been to have distributed the appeal among the Ministries in the way that the noble Marquess spoke of. That has only not been done because my noble friend has taken one case—a case which is well known because of the controversy which arose over it in the Cockerton matter. The Cocker-ton matter is not as important as it was, because the Education Act swept away all distinctions between primary education and other forms of education and enabled both kinds of education to be administered together more or less in one whole. The Cockerton question, therefore, does not arise in the old form, but it may arise in other forms, having regard to the new kind of training which it is found necessary to give for industrial purposes. It does seem to me absurd that all these things should go to the Ministry of Health. It is not a Ministry which is familiar with them and the logical way would be to have done what the noble Marquess himself spoke of and distribute the appeals according to subjects. That is the principle which is at the foundation of government to-day and it is the one that ought to have been adhered to.

On Question, Amendment negatived.

Clause 2 agreed to.

Remaining clauses agreed to.

Schedule agreed to.

Bill reported without amendment.