HL Deb 23 January 1930 vol 76 cc181-95

Minor Amendments.

Enactments to be amended. Amendment.
— —
The Unemployment Insurance Act, 1920:
Section 5 Subsection (5) shall, so far as it relates to persons of the age of sixty five years or upwards, be deemed to have been repealed as from the second day of January, nineteen hundred and twenty eight.

ful to the noble Lord. He will perhaps help the House if he will say why he objects to this Amendment.

LORD ARNOLD

I have nothing to add to the statement made by the Leader of the House at the beginning of business. We did not trouble your Lordships with a Division on Lord Darling's Amendment, but we shall do so on this Amendment.

On Question, Whether the said words shall be there inserted?

Their Lordships divided: Contents, 69; Not-Contents, 10.

CONTENTS.
Wellington, D. Bertie of Thame, V. Fairfax of Cameron, L.
Chaplin, V. Fairlie, L. (E. Glasgow.)
Linlithgow, M. Falkland, V. Greenwood, L.
Salisbury, M. Falmouth, V. Hampton, L.
FitzAlan of Derwent, V. Hayter, L.
Bradford, E. Knutsford, V. Heneage, L.
Clarendon, E. Sumner, V. Howard of Glossop, L.
Cottenham, E. Ullswater, V. Jessel, L.
Cranbrook, E. Lamington, L.
Fitzwilliam, E. Abinger, L. Leigh, L.
Fortescue, E. Alvingham, L. Lloyd, L.
Howe, E. Armstrong, L. Luke, L.
Iddesleigh, E. Askwith, L. Monkswell, L.
Lauderdale, E. Banbury of Southam, L. Ormathwaite, L.
Leven and Melville, E. Belhaven and Stenton, L. Ormonde, L. (M. Ormonde.)
Lucan, E. [Teller.] Biddulph, L. Raglan, L.
Midleton, E. Byron, L. Redesdale, L.
Morton, E. Clanwilliam, L. (E. Clanwilliam.) Remnant, L.
Onslow, E. Russell of Liverpool, L.
Plymouth, E. [Teller.] Cushendun, L. St. John of Bletso, L.
Sandwich, E. Danesfort, L. St. Levan, L.
Stanhope, E. Darling, L. Saltoun, L.
Stradbroke, E. Dynevor, L. Sinclair, L.
Vane, E. (M. Londonderry.) Dulverton, L. Sudeley, L.
Wraxall, L.
NOT-CONTENTS.
Sankey, L. (L. Chancellor.) Russell, E. Marley, L. [Teller.]
Passfield, L.
Parmoor, L. (L. President.) Amulree, L. Ponsonby of Shulbrede, L.
Arnold, L. Thomson, L.
De La Warr, E. [Teller.]

LORD FAIRFAX OF CAMERON moved, in the reference to Section 5 of the Unemployment Insurance Act, 1920, to leave out all words after "be" and to insert "repealed." The noble Lord said: My Lords, in explanation of this Amendment I desire to say that in December, 1927, the Ministry of Health and the Ministry of Labour issued a leaflet (309X) for the information of employers, giving particulars of employers' contributions payable on and after January 2, 1928, for employed persons of sixty-five years and upwards. In paragraph 2 (b) of the leaflet it is stated that contributions are payable by an employer, notwithstanding that the employed person may be over seventy years of age or in the enjoyment of an old age pension. Now the Corporation of Huddersfield, on whose behalf I have the honour of introducing this Amendment, had in January, 1928, several old servants over the age of seventy in receipt of the old age pension. They kept these employees on for a few hours each week in order to give them a little extra money, having regard to the long period during which they had served the Corporation. It is really an act of charity.

The Town Clerk of Huddersfield advised his Corporation that the statement in the leaflet so far as it related to the liability of an employer to pay contributions in respect of these old age pensioners over the age of seventy, was wrong as subsection (5) of Section 5 of the Unemployment Insurance Act, 1920—which reads as follows— Contributions shall not be payable in respect of any person who is in receipt of an old age pension under the Old Age Pensions Act, 1908 to 1919"— had not been repealed. The Town Clerk communicated his contention to the Minister of Labour and received a reply that the Minister was advised that Section 5 (5) must be regarded as repealed by Section 31 (1) of the Widows', Orphans' and Old Age Contributory Pensions Act, 1925, so far as persons of 65 years of age and over were concerned. The Town Clerk of Huddersfield again communicated with the Minister of Labour disagreeing with this contention, and subsequently received a letter dated January 24, 1928, from the Secretary stating that the Minister of Labour fully appreciated that the question raised was one of considerable difficulty. It would seem that the Minister had some doubt as to the merits of his contention. The Secretary then went on to say that unless and until the matter was otherwise determined by a court of competent jurisdiction the Minister of Labour was bound to act upon the advice he had received.

That correspondence took place in January, 1928. The Corporation of Huddersfield heard nothing further in regard to this matter until February, 1929. I ask your Lordships to note that more than a full year passed without the Minister of Labour attempting to do anything. He, therefore, must have been very uncertain and doubtful in his own mind about what action to take. On February 22, however, the solicitor to the Ministry of Labour wrote a letter to the Town Clerk of Huddersfield stating that the Minister of Labour felt obliged to endeavour to enforce payment by the Corporation of Huddersfield for contributions in respect of these old age pensioners, and so to obtain a decision of the Court on the point in question. The solicitor went on to say that he had been instructed to take proceedings by way of Attorney-General's information. Thereupon the Corporation of Huddersfield took counsel's opinion, and were definitely advised by counsel that in his opinion subsection (5) of Section 5 of the Unemployment Insurance Act, 1920, was not repealed by Section 31 (1) of the Widows', Orphans' and Old Age Contributory Pensions Act, 1925, and that the view of the Corporation as expressed in their letters to the Ministry of Labour was the correct one.

There was some further correspondence upon the matter and eventually on December 17, 1929, the Town Clerk of Huddersfield received a letter, dated December 16, from the assistant solicitor of the Ministry of Labour to this effect:— In the Unemployment Insurance Bill which is at present before Parliament amongst other suggested amendments of enactments is the following: 'Unemployment Insurance Act, 1920. Section 5, subsection (5), shall, so far as it relates to persons of the age of 65 years or upwards, be deemed to have ceased as from the second day of January, nineteen hundred and twenty-eight, to have effect.' The solicitor went on to say:— In the circumstances, I am instructed to take no further action until the Bill has become law. The clear inference from this statement is that the Ministry of Labour contemplate proceeding against the Corporation of Huddersfield so soon as the Bill becomes law, should it be passed as it stands, either for penalties for failing to stamp as from January 2, 1928, or for payment of unpaid contributions. The Corporation take very strong exception to the underhand course which the Ministry of Labour has adopted. It is clear that the Minister is now of opinion that he was wrongly advised and that the view of the Corporation was right, and the Ministry are endeavouring to extricate themselves from the difficulty in which they are placed by introducing this retrospective legislation.

I submit that restrospective legislation has always been repulsive to English ideas of right, equity and justice. Even so far back as the eighteenth century, the great and learned jurist and interpreter of the law, John Marshall, in drawing up the Constitution of the United States, inserted a clause making retrospective legislation unconstitutional, and so it has remained ever since in that vast dominion of the United States of America. I have heard this question raised several times in your Lordships' Chamber since I had the honour of listening to your deliberations, and you have always condemned it. I hope you will condemn it on this occasion and not allow this Bill to pass into law with this provision in it. The Unemployment Insurance Bill had passed its Third Reading in another place on December 17 and it was impossible, therefore, for the Corporation of Huddersfield to take exception to the working of the Bill as it now- stands through a Member of Parliament. I suggest, therefore, that the Second Schedule be amended so that paragraph to which my Amendment refers can only operate as from the coming into law of this measure. I beg to move the Amendment which stands in my name in order to bring about this desired result.

Amendment moved— Page 14, leave out lines 26 to 29 and insert ("repealed").—(Lord Fairfax of Cameron.)

LORD ARNOLD

My Lords, the Amendment which has been moved by the noble Lord and explained so fully and clearly deals with a comparatively small but a real point which arose in the working of the Unemployment Insurance Acts. The position is that when the Widows' Pensions Act of 1925 was passed it was provided that contributions under the Unemployment Insurance Act should be paid in respect of persons over sixty-five at the exempted persons rate as it is called—that is, the contributions should be paid by the employers and by the State, though they were not paid by the employed man himself. This provision did not exclude the case of a person in receipt of an old age pension at the age of seventy under the Old Age Pensions Acts which were in operation before that Act. There was an ambiguity as to whether up to the age of seventy no contributions at all were payable in respect of persons in receipt of old age pensions, or whether they should be payable at the exempted persons rate. The Department had advice on the subject, and they were advised that the provisions of the Widows' Pensions Act of 1925 prevailed. That meant contributions were payable at the exempted persons rate by all those over sixty-five after January, 1928, the date when the pensions to persons over sixty-five began to be paid. This provision is put in the Bill in order to give effect to this advice from that date, and the noble Lord desires that it should not go back to that date.

He does not object, I gather—because he leaves those words in the Amendment—to the Amendment operating as from the passage of this Bill, but he says he does not want this provision to be retrospective. He cites the case which he put very fully before your Lordships and which I will say a word about, the case of Huddersfield. I cannot, see my way to accept his Amendment, because I think this little matter ought to be put right, and put right back to the date of January, 1928. If that is not done, there is a certain ambiguity still remaining. I will say this to the noble Lord in reply to his speech, that so far as the Huddersfield Corporation are concerned, no proceedings will be taken against them for the interim period between that date and the passage of this Bill, but they, like all employers of the persons in question, will have to pay in future after the passage of this Bill. It is not really a big point, as your Lordships will see. I think that if the matter were elaborated more fully it would be clear that what has been done in what I may call this interim period has really been in accordance with what was always the intention of the Act going back to 1920. As a matter of fact, there ought to have been in the 1925 Act a repeal of one little subsection in the 1920 Act. That was not done. It was overlooked. These things do happen from time to time, and for once I am glad to be able to stand at this box and say it was not the fault of the present Government, because they were not in office and had no responsibility for it. In those circumstances, I hope your Lordships will accept the proposal of the Bill in full, particularly with the assurance which I have given to the noble Lord in regard to the case which he has brought before the House to-day.

VISCOUNT SUMNER

My Lords, I have heard with a good deal of surprise the language put forward by the Paymaster-General. See what the position is. Attention is called to the fact that in a Schedule to this Bill a provision is inserted to make a certain change in the law retrospective generally. Everybody knows that is most objectionable, because, during the interval between the date of the enactment and the previous date to which the Bill is to be made retrospective, not only this Corporation but all sorts of people may have conducted themselves on the faith of the legislation as it stood, may have incurred liabilities, and may have been advised, and possibly rightly advised, that they were in the right; and then find that by an Amendment of the law, which is none the less objectionable for being tucked away in a corner of a Schedule with no attention drawn to it—at any rate in the other place—their opportunity of discussing whether they were right or not is taken away from them.

The interpretation of the law as it stood when they acted, and all their rights, are to be concluded without their being heard; and, without the Courts of Law being allowed to pronounce upon it, a retrospective provision in the Second Schedule is to put them out of court. I should think that that requires a good deal of justification. The justification for it that is offered by the noble Lord, the Paymaster-General, is an odd one. He says this is not a very important matter, and, if the noble Lord who has moved this Amendment likes to be "squared," if I may be permitted to use a word that expresses his meaning though not the words he used, he will undertake not to make the Huddersfield Corporation pay, as the law which we are now called upon to pass says they should pay. I do not know what dispensing power this Ministry thinks it has, or what the value of a promise given under those circumstances is to the Corporation of Huddersfield, but it is for the noble Lord who speaks for that Corporation to decide what course he will pursue. But I do protest against this line of argument, and I do trust that such a course will never be pursued again.

It is quite clear that there was, to say the very least, an arguable case. The noble Lord, the Paymaster-General, himself said that it was ambiguous, that there was a regrettable omission such as will happen, and then he takes, I dare say, just credit to himself and the Government of which he is a member for the fact that they were not in office when the previous legislation was passed. He is entitled to what legitimate satisfaction he can get out of that, but that does not touch the matter. Whether the Ministry was rightly advised or wrongly advised as to the meaning of this ambiguous provision it is not for us to decide. It ought to be decided by the competent Courts of Law, and here was an opportunity in litigation started for the purpose of deciding that very thing. Why, upon the view which the noble Lord takes upon the information that is put before him, it should be assumed that the ambiguous provision meant something which takes the Government's line and not the subject's line, and why the law should be altered retrospectively as the right way of getting over that ambiguity, I am quite at a loss to understand. It may be—I do not care whether it is so or not—that there are other people who have been acting on the view which the Corporation of Huddersfield took. If there are they will find themselves in the wrong and will be made to pay although they acted upon the construction which at the time that they did so was at any rate arguable and may have been right. I do not know what the section is and I am not going to pass any opinion upon it. I should not even if I had read it. But it is a proper matter for determination by the Court and not a matter to be dealt with in this form. There is no limit to which the mischief of this kind of legislation might be carried if once it is allowed to pass.

Your Lordships may probably have read, and if so I am sure you have read with admiration, or if you have not read I would urge you to do so, the recent luminous and convincing treatise of the noble and learned Lord, the Lord Chief Justice, on the encroachment of the bureaucracy upon the functions of the Legislature. This seems to be a very grave case of that kind. The Ministry is advised—I know not by whom, but let us suppose by the highest authority, the Law Officers of the Crown—that one view and not another is right of an existing section. Instead of taking the proper course of passing a declaratory section operative for the future to establish that meaning, if Parliament is pleased to accept it, or instead of repealing the old legislation and substituting other legislation if Parliament is pleased to do so, they introduce something the effect of which is to decide the matter in favour of the Ministry upon the suggestion of the Department itself and as far as I can make out with the very minimum notice that could possibly be given under our existing system. I hope your Lordships will declare yourselves quite unequivocally against this kind of thing being tolerated for a moment.

LORD DARLING

My Lords, this really is, I can assure your Lordships, a matter of much greater gravity than you would gather if you think it is limited to the grievance of the Huddersfield Corporation. I have been favoured with the correspondence which passed between the Huddersfield Corporation and the Ministry before this Government came into office and since. A letter in that correspondence suggests that this is a point which relates to many other people, and of course it must do. It must relate to all people who employ anybody over 65 or certainly over 70 years of age—everybody, that is, within certain grades. That means that it implicates thousands and thousands of people, and it is 'mentioned in this correspondence that this dispute between the Ministry of Labour and the Huddersfield Corporation was really a test case. Therefore it will not be sufficient even if the noble Lord, Lord Fairfax, could be what the noble and learned Viscount. Lord Sumner, I think very properly called "squared." It does not settle the grievance of all these other people. If he obtained by this means a privilege for the Huddersfield Corporation, I do not think he would take the course of giving away all the case of these other people, this being a test case, simply because they settled with the people who had the correspondence with the Ministry of Labour.

The important section has not been read, and I think it would interest your Lordships if I showed you precisely and very briefly how the matter stood when the question was first raised between the Huddersfield Corporation and the Ministry of Labour. By the Unemployment Insurance Act, 1920, employers are required to make weekly contributions to the Unemployment Insurance Fund, and by subsection (2) of Section 22—and this is the most important part—it is enacted that if any employer should fail or neglect to pay a contribution he is liable for each offence on summary conviction to a fine not exceeding £10. £10 every time he does not make a contribution in respect of a person for whom he should make a contribution ! Now the employer says: "Well, I have in my employ certain people over 70 years of age, and I have come to the conclusion that I am not liable to a fine of £10 every time I do not make a contribution in respect of them." That is the conclusion I have come to. Why have I come to that conclusion? Because I have read in subsection (5) of Section 5 of the Act of 1920, this:— Contributions shall not he payable in respect of any person who is in receipt of an old-age pension under the Old Age Pensions Act, 1908 to 1919. This is perfectly plain and for some time it is obvious no contribution was payable in respect of them and it was not paid.

Then what happened? In 1925 another Act was passed. It is called the Widows', Orphans' and Old Age Contributory Pensions Act, 1925. It is admitted, as I am sure the noble Lord, the Paymaster-General, will agree, that that Act of 1925 contained no repeal of the section I have just read to your Lordships—no repeal in so many words. When the question came to be raised between the Ministry of Labour and the Huddersfield Corporation it was said by the Ministry of Labour that the section which I have just read is impliedly repealed. The Corporation asked: "Where is it repealed" They were told: "Oh, it is impliedly repealed. There are no words which repeal it, we cannot point you to any words which repeal it, but the whole course of legislation is such that it is impliedly repealed." That is in this correspondence, as I could show if I chose to trouble your Lordships with it. There are many letters, and long letters. This question was raised by the Ministry of Labour, not the present Ministry but the former one. The noble Lord, the Paymaster-General, says: "Oh, but there is a great difference between us and them." Yes, there is, and it is this, that the Ministry of Labour wrote that this was a case, as the Minister admitted, of considerable difficulty and therefore he agreed with the Huddersfield Corporation—but before I go on there is something I have omitted.

The Huddersfield Corporation, being told that this was, as they knew, a matter of considerable difficulty, took the opinion of very learned counsel, particularly able to advise upon this sort of question upon these Statutes, and they then wrote and told the Ministry of Labour: "We have, as we have told you, submitted a case to counsel. We have received his opinion." It was one of His Majesty's counsel. I have got it. I have read the case and I have read the opinion. He advised that the Huddersfield Corporation's constructions of the various sections were the absolutely right ones, and he advised them that if proceedings were taken against them for these penalties—because that was the question—the proceedings should be resisted by the Huddersfield Corporation. So the matter stood and there are letters passing between them which show that it was allowed to stand over, over the long vacation, and the letters show that what was desired by the Minister of Labour of that day, but not of this, was to have the authoritative decision of a Court of Law, an unbiased decision. And the Corporation said: "If it is against us, of course we will pay, but if it is in our favour we will not pay."

Who are these people, the Huddersfield Corporation? They are trustees for the people who pay rates out of which they pay these men. Is it to be said that they should pay what they are advised that it is not legal that they should pay? They did not take that view. They seemed to have a higher view of what is the obligation of the law than some people nowadays. They took counsel's opinion. They told the Minister at the time, and it was agreed that the Attorney-General should file an information and should by that means contend that these penalties are due to the Crown—that was the proper way—that the matter should be adjudicated upon by the Judges and that, if the Attorney-General's view was upheld, the Huddersfield Corporation should pay the money.

What happened? The Minister went out of office. The Paymaster-General tells us how much better a Minister came in. I thank thee that I am not as other men are … even as this publican —the Minister of Labour in the late Government. What did they do when they came in? They put this little provision into this Bill which my noble friend Lord Fairfax desires to exclude, saying that the law was what the former Minister had suggested it was and not what the Huddersfield Corporation contended that it was. They attempted to decide by Act of Parliament that they were right in what had been admitted to be a most difficult question. They thereby took the matter away from the jurisdiction of the Courts, which, as my noble and learned friend Lord Sumner has said, is exactly what the Lord Chief Justice has lately pointed out that these Departments are always trying to do. There was a time when it was done. When necessary this is alluded to, even in Hyde Park by people standing on tubs, who say that it was done by the Star Chamber. They do not know what the Star Chamber really did, but they say: "It withdrew things from the regular Courts, the King's Bench, and decided them in the Star Chamber."

The Star Chamber has gone. I have not the slightest doubt that the Government deeply regret its decease. So they are driven to saying: "We are right, and all the advice that you received was wrong. Those who advised us are right but, as there is still some doubt as to whether we were right, just to make sure we will ask Parliament to say that we were right, and as part of that process we shall have to ask the House of Lords to say that we were right. We very much regret that, but we have to do it, such is the wicked Constitution under which we live." And so they come here and ask your Lordships to decide that they were right in their view of a very difficult question—the difficulty was admitted—and that the Huddersfield Corporation were wrong.

But that was not all. As my noble and learned friend Lord Sumner has said, they could have done that by a declara- tory Act. But they had their eye on these various accrued sums of £10 for every offence, extending back over years, and so they say: "We will not be content with a declaratory Act, but we will make the section which gives us this money retrospective and we shall have, not only from the Huddersfield Corporation but from all the other people who may have omitted to make this payment, the sum of £10 for every offence that they have committed." To get the House of Lords to pass this retrospective legislation they try to bribe the noble Lord who brings this forward by saying: "This shall not apply to your clients; they are all right. Withdraw your Amendment and we shall be quite content to get the money out of all the other people."

Why is there objection to this retrospective legislation? I wish the noble Lord opposite would remember what Mrs. Malaprop says on this subject—that our retrospections should be all to the future. So it will have to be if your Lordships agree to the Amendment which my noble friend has proposed. It did not want Chief Justice Marshall of the United States to say that retrospective legislation is to be condemned. It was said long ago. The noble Lord opposite has so much to read that I hesitate to ask him to spend more of his time upon this subject, but if he would read the second "Institute" of Lord Coke he would find that retrospective legislation is condemned by him on these lines: that if there is any question in a Statute whether the clause to be considered has retrospective operation or not, it should, if possible, be held that it has not retrospective operation, because it is unjust to make offences which were not offences when the people committed them. That is what is being done here.

The next Bill to come before your Lordships is a Bill relating to traffic on the roads. Why not put a retrospective clause into that? There are lots of people who have not committed offences yet, but who will commit many of them if that Bill passes in the form in which it is. I commend this to the noble Earl opposite—but no; I am sure that the noble Earl is much too good a lawyer and too much of a statesman to avail himself of it. But it would be quite possible to put this clause into the next Bill. I do not know what you could not do by that means. You get all manner of fines and penalties from people who at present have committed no crime at all, but who would have committed crime after crime if a retrospective clause were put in. I have troubled your Lordships, I know, at too great a length, but I have done so because this, in my opinion, is not a small subject and not a question of little moment. It is a deliberate attempt by this Department of this particular Government to deprive people of what may well have been their rights, and at all events to deprive them of the chance of going into the Courts of Justice and having it determined whether these are their rights or not.

THE UNDER-SECRETARY OF STATE FOR INDIA (EARL RUSSELL)

My Lords, as my noble friend the Paymaster-General cannot speak again, he has asked me to say a word upon this subject. The noble and learned Lord who has just addressed your Lordships somewhat fully upon this question complained apparently that the new Minister of Labour should say: "I am not as other men are." I do not know why he should complain that Miss Bondfield should say that. Your Lordships know what a soufflé is. A soufflé is a thing of a light character which occupies considerable space and has very little substance. There is no one in this House who is more competent than the noble and learned Lord who has just spoken to blow up a soufflé of a comparatively small matter. Really from the two speeches that we have heard we might have supposed that the Constitution was in danger. What is happening here and what is suggested here is what, after all, has been done by Parliament before. It is sometimes discovered that a mistake has been made, an oversight has taken place, under which, when all is said and done, nobody has been prejudiced or hurt, and you then do what you can to put it right. Now the suggestion in the Amendment is that this subsection, so far as it relates to the people of 65, should be repealed simpliciter and in the Bill that it should be repealed as from January 2, 1928. The object of that is an object Parliament is constantly trying to achieve. It is not to leave a period of indecision from 1928 to 1930 in which you are not sure what was or was not the law. It is admitted that this is a difficult and doubtful point, and that people have been misled as to what was or was not the law. It is really a trifling matter, and if your Lordships take this view of it as a serious and constitutional question, the Government cannot do more than leave it to you.

On Question, Amendment agreed to.