§ 4.36 p.m.
§ LORD CHORLEY rose to call attention to certain aspects of the administration of the National Insurance Act, 1946, and the Insurance (Industrial Injuries) Act, 1946; and to move for Papers. The noble Lord said: My Lords, I should like to make two preliminary observations. In the first place, I apologise to your Lordships for the very wide terms in which my Motion is drawn. I wish to deal with a number of specific points under these Acts, and I tried to draft a Motion which would be rather more explicit. Unfortunately, it would have taken up so much paper that in the end I felt that if I gave notice to the Minister of the specific points that I proposed to raise this would perhaps be the best way of dealing with the matter. Secondly, your Lordships will see that I refer to two Statutes—namely, the National Insurance Act, 1946, and the National Insurance (Industrial Injuries) Act, 1946. I propose to devote the greater part of my remarks to the first of those Acts, but since a number of the points which I wish to make are common to both Statutes, and since, if the Government are prepared to help me (as I hope they may be), the help which they give will, I think, apply equally to each of the Statutes, I have included the Industrial Injuries Act in the Motion. But unless I specifically refer to that Act in 517 my remarks I shall actually be directing my observations to the first of the Acts I have mentioned.
§ The matter of the administration of these Acts to which I draw attention in this Motion was brought to my notice by the dismissal by the responsible Minister of a certain Mr. G. L. Haggen from his position as chairman of the local appeals tribunal at Leeds. I use the word "dismissal" advisedly, because I think that any candid person would agree that what happened to Mr. Haggen was, in fact, dismissal, although I agree that technically it was a refusal by the Minister to re-appoint him to an office to which he had been appointed for a certain period, that period having expired. I mention at the start that Mr. Haggen is an old university friend of mine, and although I have not seen much of him over the last years we have maintained a friendship since we were students at Oxford together. However, I should like to make it quite clear to your Lordships that it was not at the request of Mr. Haggen that I put down this Motion. It was quite by accident that I learned of what had happened, and Mr. Haggen was himself at first rather averse to my taking any action in the matter. But he realised that more than his own case is involved in what happened, and he has been most helpful in providing me with material to put before your Lordships' House.
§ It may assist if I remind your Lordships of the procedure which is followed in dealing with claims for benefit under the National Insurance Act, 1946. On the event happening which entitles a man or a woman to benefit—such as, for example, an attack of influenza which incapacitates him from work—he must give notice of the illness and he must make a claim for benefit. He must do both of those things within what is called "the prescribed period." These prescribed periods are fixed by the Minister in a statutory instrument; they are very short periods. The time within which the man has to notify his incapacity is three days, and the time within which he has to make his claim is ten days. I am dealing with the ordinary type of case. There are some exceptional cases in which the periods are different. Failure to give notice or to make a claim within the prescribed time disqualifies the claimant during the period that he 518 is in default. But there is an important exception to that. If he can prove that there was "good cause" for his failure to make his claim before the date on which he actually makes it, then the period is extended. Now if the insurance officer, who is the official of the Ministry before whom this point first comes for adjudication, decides that there is not such good cause, then the claimant has a right of appeal to the local appeals tribunal and from there there is a further possibility of appeal to the National Insurance Commissioner.
§ The first point to which I wish to direct attention is this question of "good cause." It has been giving rise to a good deal of heart-burning among claimants up and down the country. After all, for the most part these people are unlettered people and are often quite unaware of the existence of this three-day rule—I myself was quite unaware of its existence until I became involved in this case. Such people, not unnaturally, think that ignorance is a reasonably "good cause" of failure to make a claim. But the National Insurance Commissioner has ruled—and has ruled as a matter of law, which it is claimed is binding on the subordinate tribunals—that such ignorance of the prescribed period is not "good cause." Pausing there, I find it rather difficult to understand where the National Insurance Commissioner derives his authority to make a ruling which is binding. The Act itself certainly does lot say that rulings of the National Insurance Commissioner are to be binding; nor, so far as I have been able to follow the rather complicated regulations, does any one of the regulations give him authority to make a ruling which is binding in the same way that a ruling of your Lordships' House, sitting in its Judicial capacity, is binding on inferior courts. I should be glad if the noble Earl who is to reply for the Government would indicate to me where this alleged right to lay down a binding authority comes from.
Under the old Workmen's Compensation Acts, there was; a similar limitation period—indeed, there was more than one, I think—and a similar discretion was entrusted to the county court judges who administered those Acts. The words there were. "reasonable cause," but obviously the same point is involved. Your Lordships' House held more than once that under those Acts it is not possible for a
court to frame hard and fast definitions of "reasonable cause" into which all the facts of any individual case can be fitted. I should like to refer to the speech of the noble Lord, Lord Macmillan, in the case of Shotts Iron Co. v. Fordyce which is reported in 1930 Appeal Cases. The particular passage is at page 515, where the noble Lord says:
It is impossible to frame a definiton of a reasonable cause for omitting to make a claim. Indeed it would be unreasonable to attempt the task. The decided cases on the subject, from the mass of which Mr. MacRobert considerately drew only a few samples, furnish an unhappy instance of history teaching by examples, for the only lesson which they impart is that no one case can govern any other and that each case depends upon its own circumstances.
The National Insurance Commissioner is not bound by opinions expressed in the House of Lords in relation to a different Statute, but it does seem to me that there is a good deal to be said in favour of following the wise remarks of the noble Lord, Lord Macmillan, in that case.
§ I find it disturbing that on the interpretation of legislation passed during the 1945–50 Parliament by a Labour Government for the greater protection of workmen, a restrictive construction should have been laid down which subordinate tribunals are required to accept, and which has the effect of depriving workpeople of benefit which they would have received under the earlier Statute—at any rate, under the Workmen's Compensation Acts. I would remind your Lordships that under the Workmen's Compensation Acts, a mistake in regard to his rights was specifically provided for in the Statute itself. Under the new Statute, which does not specifically provide for mistakes but talks about "good cause," a mistake is held by the Commissioner not to be good cause and, as your Lordships will see in a few minutes, that ruling is expected to be very widely applied.
§ I should like to give your Lordships an example of the sort of thing which actually happens in these cases. This is not a case of ignorance of the time limit. It is a case where the Leeds tribunal held that there was good cause and was overruled by the Deputy Commissioner. It is a case of a man called George W. Jackson, and I will summarise it very shortly. It is case No. 21 (3). It is a 1951 case, and it has a very complicated 520 reference, to which I do not think I need refer unless the noble Earl would like to have it. It was a case of a man who had a sickness which came within the Act some years before this particular case, and instead of giving his notice directly to the Ministry he put it in to the local secretary of his friendly society. On that occasion the local secretary dealt with it perfectly correctly and sent it to the Ministry; and the man received his benefit. A year or two later he had a precisely similar incapacitating sickness, and again he sent his notice to his local secretary, instead of sending it in himself. But in the interval a new local secretary had taken over the job, and this man thought that it was simply being sent to him for information and did not send it to the Ministry. That was held by the insurance officer not to be "good cause." The man appealed to the local appeals tribunal, who held that it was "good cause" and allowed the appeal. The Ministry appealed to the Commissioner and the Deputy Commissioner held that it was not "good cause." Here you have a more or less uneducated man behaving in this way. Nine people out of ten would say that he had "good cause" for behaving on the second occasion just as he had on the first. I submit that this is an altogether unduly restrictive interpretation of the meaning of "good cause" which was given by the Commissioner.
§ I suggest that the attitude taken in the Shotts case is a more reasonable one and further, that the autonomy of local tribunals to decide these cases ought to be restored. We are obtaining from the persons who man these local tribunals a great deal of social service at little or no cost to the State; and we cannot expect them to continue their work if they are treated like children, as they undoubtedly are in some of the decisions of the National Commissioner. I have read some of these cases and I find that in some instances the result has been that there have been resignations from the local appeals tribunals on the very ground that they are being scolded in a way that is indefensible.
§ I suggest to the Government that the decision as to whether or not there can properly be an extension of time in these cases should be squarely and fairly left to the local people. After all, it is the local people who see the man and hear his case, and they are in much the best 521 position to judge whether or not there really was a "good cause" for his having failed to make his claim or to notify his illness within the prescribed period. This could be done by leaving it to the discretion of the local appeals tribunal; and it could be done easily by amending the existing regulations.
§ The major issue raised by this dispute, however, is a much more important one. It is the issue of the independence of the tribunal itself. The principle of the independence of the Judiciary is absolutely fundamental to the British Constitution. In the ordinary courts of Law we take it for granted. Perhaps we are in danger of overlooking its significance and of forgetting that the securing of it was one of the most valuable things which came out of the great constitutional conflict of the seventeenth century. But we are now, for the sake of speed and convenience, establishing special tribunals to deal with cases such as I am now discussing. Personally, I do not complain of that; I think that this method has many valuable features, and provided that it is used with discretion it is a sensible development. It is, however, essential that these new tribunals, as was pointed out by the Donoughmore Committee, should be just as independent of the Executive as is the High Court itself. In the particular cases which I am discussing, the Acts confer upon individual citizens legal rights which are clearly just as much legal rights as rights arising from contract or in tort and coming before the ordinary courts of law. They are, indeed, rights for which the workman pays a substantial premium; and the fact that the enforcement of these rights is entrusted by Parliament to special tribunals ought not to mean that claimants are thereby deprived of the right of every Englishman to have the general principles of Common Law administered in his favour—unless those general principles have been expressly removed by Act of Parliament.
§ I submit that the functions of these tribunals are essentially judicial functions. They determine claims to benefit which are conferred by Act of Parliament, and the claimants are entitled to receive their benefit if they satisfy the conditions which are laid down in the Act of Parliament. No administrative regulations or decisions can properly de- 522 prive them of those rights. The judges of the High Courts of Justice hold their position as long as they are of good behaviour, and they can be removed only on an Address by both Houses of Parliament. I do not suggest that the members of these appeals tribunals could be dealt with in that way, but I do suggest that we should secure for them a proper measure of independence—for example, by making the refusal of the Minister to reappoint them subject to confirmation, if the member in question wishes to have it confirmed, by some independent judicial commission. It may surprise your Lordships to hear that at present these people are entirely dependent upon the Minister for their positions. The tribunals are set up to protect citizens against unjust decisions. The Minister has in his hands, so to speak, the lives of the members of these tribunals, and I suggest that there is nothing more dangerous than to entrust the power of appointing, and more particularly of dismissing—for that is what it comes to—members of these tribunals to the very Minister on whose policy, and on the acts of whose subordinate officials, they are called upon to adjudicate. It makes him the judge in his own case, and that is a cardinal offence against the fundamental principles of natural justice.
§ The legally qualified chairman of one of these tribunals, who is, after all, the key figure, is in practice, as I understand it, appointed for a period of three years by the Minister, an appointment which is at the end of that period renewable by the same Minister. The chairman has no statutory right even to the three years' appointment; it is entirely in the discretion of the Minister. The chairman holds office subject to the terms of his letter of appointment. It is entirely within the discretion of the Minister what are the conditions in that letter. I doubt whether your Lordships could by taking thought imagine a position more lacking in all the indicia of independence. This danger is not a mere hypothetical possibility. In my submission injustices have already resulted from this glaring infraction of principle, certainly in the case of Mr. Haggen and, I believe, in the case of more than one other chairman. But even if I am wrong about injustice having been done, there is no question that a very large number of 523 people believe that injustices have been done. Perhaps I may be allowed to recall the famous words of a former member of your Lordships' House, Lord Hewart, to the effect that it is not only necessary that justice should be done but it is necessary that it should be clearly and manifestly done. This method of procedure has persuaded a large number of people in Yorkshire that Mr. Haggen has been unfairly treated. If, as I am told, it is undoubtedly the view of the legal profession in Leeds and Bradford that that is so, then Lord Hewart's principle has undoubtedly been broken.
§ The circumstances of Mr. Haggen's case are these. As I have said, the National Commissioner has ruled that mere ignorance of the prescribed period is not a "good cause" for extending the time.
§ LORD CHORLEY
He has intimated to the local tribunals that they have got to follow his ruling in other cases and in similar cases. He actually used the words "in similar cases." I suggest that that is a clear infraction of the principle enunciated by Lord Macmillan.
§ THE EARL OF SELKIRK
In what way has he indicated to the other tribunals the course that they should pursue, except by indicating the course he has decided?
§ LORD CHORLEY
He has indicated it in a number of documents, to which I will refer in a moment. There are a number of these documents, which are, so to speak, reports of his decisions, issued for the guidance—
§ THE LORD CHANCELLOR
Has the appellate tribunal come to the same conclusion in a number of decided cases?
§ LORD CHORLEY
The Commissioner has given decisions in a number of cases. These decisions have been reported, and the Commissioner has intimated that he expects the local appeals tribunals to follow them.
§ LORD LLEWELLIN
I do not want to interrupt the noble Lord but it is not a very surprising decision, is it? Because ignorance of the law has never been an excuse.
§ LORD CHORLEY
It is really a question of mistake. If the noble Lord will bear with me for a moment, I will indicate that, so far as Mr. Haggen is concerned, he has always accepted this ruling by the Commissioner. But what the tribunal has done is to hold that there are often additional factors—and each case has to be judged on its own facts and its own merits—which take the case outside the straight ruling of the National Commissioner and provide "good cause" for extending the period. For example, the claimant's wife may be ill, so that he is so bothered that he forgets about it; or he himself may be incapacitated by one of those illnesses—of which influenza is a particularly good example—which make a man feel so low that he really cannot look after his own affairs properly for a few days. A number of cases of that kind have been before this tribunal, and in cases of that sort Mr. Haggen's tribunal have held that there has been "good cause" for extending the time. I have here details of a typical case, actually of influenza, in which a decision was given where the man, when he appeared before the appeal tribunal, used the rather peculiar term medical duress" as explaining why he did not take his action within the prescribed period. Putting a common sense interpretation upon that, the local appeal tribunal extended his period. That decision was overruled by the Deputy Commissioner, I think, on the ground that there was not "good cause." He rather poked fun at the use of a term like "medical duress." But, after all, the people who actually saw the wretched claimant and who understood what he meant by this term, were the members of the local appeal tribunal. I suggest that it is wrong for somebody sitting in an office in London to administer away rights in this way.
During the summer of 1949, Mr. Haggen received a visit from the local manager of the Ministry of National Insurance, and also from the regional insurance officer. The regional insurance officer told Mr. Haggen that the decisions of the tribunal over which he was presiding were out of step with those of other tribunals. There was a discussion about it, and Mr. Haggen pointed out that he was accepting the principle but that, when there were additional facts, such as those I have explained to your Lordships, he advised his tribunal to hold that they 525 were outside the cases of mere ignorance. The officials went away, apparently satisfied, and nothing more was said or heard until, at the end of June of last year, Mr. Haggen's appointment was not renewed. He received a rather curt note from the Ministry intimating that fact to him. He asked for an explanation of why this should be so, because he had been doing this sort of work for a very long time, and it is a rather serious reflection on a man of his position to be dealt with in this way. But he was refused any sort of explanation, and it was not until the question was raised in another place that the Minister (by this time it was a new Minister) answered that he had not been reappointed because he had reused to carry out the directions of the National Commissioner.
I should like to pause here to suggest that this example of the local officials going to interview a man who is, in effect, a judge, to complain of the way in which he is doing his work, is a complete infraction of the principle of judicial independence. I suggest that it is really quite improper conduct. I have heard members of the old courts of referees, which have been replaced by these tribunals, complain that officials have tried to influence them in their work. This is a further illustration of the fact that the official mind does not appear to be capable of treating these special tribunals as if they were real judicial bodies. At this point, I should like to assure your Lordships that Mr. Haggen was no mere inexperienced chairman, who needed assistance from officials in this sort of way. He was a Rhodes Scholar at Oxford, he took his Bachelor of Civil Law degree thirty years ago, and has practised at the Bar in Leeds for thirty years, where for a number of years he has been a Reader in Law at the University; and, I believe, at the present time he is Dean of the Faculty. Since 1930, he has been a chairman of a court of referees and. he has held many other appointments of a similar kind, including one on the Ministry of Labour's hardship tribunals set up under the National Service Acts. As I have said, from the time when these officials visited him, Mr. Haggen heard nothing more until he was rather summarily dealt with in the way that I have indicated.
526 During the short period that these Statutes have been operating, there have been no fewer than twenty-three cases where the Minister has refused to reappoint chairmen of appeal tribunals. There was a recent reply to this effect to a Question in another place. In one particular case, a chairman has been dismissed during the course of his appointment. Surely, that is a very serious position. Certainly in some of these cases, when chairmen have asked why they were dismissed, there has been a point-blank refusal to give them any explanation or reason. I suggest that this is altogether wrong. After all, these men are responsible professional men, and, in effect, this method of refusing to reappoint them is a reflection on their work.
I have information of one of these cases, where a man made very determined efforts to discover why this had happened. His own impression was that he had had one or two brushes with subordinate officials and, regarding himself as an independent chairman, had by no means always followed the departmental lines. He says:For quite a long time I have been finding the work too subject to departmental interference in various ways.
§ LORD CHORLEY
No, this is in a letter. He has asked me not to give his name, and it would be quite wrong for me to do so. But I can assure your Lordships that he is a member of the Bar, practising in the Temple, and a man of standing. My Lords, a very serious situation arises when men of high standing at the Bar can be dealt with in this way, and I do suggest that it shows quite clearly that, so far as these tribunals are concerned, there is no real independence, and that it is time that Parliament re-established such independence.
Not only was Mr. Haggen dealt with in this way by the Minister of National Insurance, but his chairmanship of the hardship committee of the Ministry of 527 Labour and National Service was terminated during its currency. Yet the Minister of Labour must have regarded him as a man well qualified for the position, because only a few months before, in the spring of last year, on the recommendation of this Minister he was appointed chairman of the Auxiliary Royal Air Force appeals tribunal. It has since been stated, I believe, that it is Governmental policy that the chairmanships of the local appeal tribunal and of the hardship tribunal shall be held together. If that is so, it is not a policy which is uniformly applied, because the very man from whose letter I was quoting a moment ago, who ceased to be a chairman of an appeal tribunal, is nevertheless still, I believe, chairman of a hardship tribunal.
My Lords, the result of all this is a feeling in the legal profession that this office is being degraded, and I understand that it is becoming more and more difficult to get members of the Bar of any sort of standing to accept these chairmanships. I suggest that that is a very serious state of affairs. Another serious state of affairs is that the remuneration received by these men, of high professional qualifications, is the paltry sum of three guineas per sitting. I made inquiries into that matter and I understand that the average time taken up in attending a sitting is about five hours. My Lords, how are we to get this responsible work done in those circumstances? This is responsible work, a good deal of which is inherited from the old county court—that is, the cases of industrial injuries. Only the other day we had before this House a Bill increasing the stipend of the county court judges to £2,800 a year. These chairmen are doing a considerable amount of the same work which for many years the county court judges did, and yet the Government expect to get competent men to do it at three guineas a sitting. I would ask the Government whether they will not look at this matter carefully, and see that it is put on a proper basis. I ask the Government also, to institute a proper inquiry into Mr. Haggen's case. It is not that Mr. Haggen himself minds about it—he has regarded this work as a social service over these last years—but it is very important indeed that in effect a man should not be dismissed in this way without being given any sort of opportunity of replying to the case made against him and to any reflec- 528 tion which may be cast upon him. I suggest that that is an infraction of the cardinal principle of natural justice. Further, I suggest that the time has come to hold an inquiry into the whole matter of the administration of these Acts.
In addition to the points which I have already made, there are a number of others which need to be looked into. For example, a claimant is not allowed legal representation when he appears before an appeal tribunal. He is specifically and expressly refused legal representation, and undoubtedly that may work considerable hardship. I have here an interesting letter which appeared in the Law Society Gazette for September of last year, some passages of which I should like to quote. It is on this very point. The writer points out that there is no provision whatever for legal representation at the local tribunal, and he goes on to say,Since by the very nature of the scheme all of these appellants are sick people, their cases are not properly prepared or presented. Some of them, of course, may have trade union assistance, but it is quite wrong to suppose that all of them have. A very large number of them are not members of the trade unions or friendly societies and have no assistance. If the appellant is represented at all it is usually by some relative who has no knowledge of the large volume of Commissioners' decisions and regulations and who is likely to be overawed by the procedure.The case for the Ministry is, on the other hand, presented by a skilful insurance officer who has a good knowledge of all the case law and regulations and is very much at home at a hearing. The prosecuting officer is, of course, a direct departmental chief of the clerk of the court, and no access can be had either to the chairman or the clerk except through him. He can and does insist on any application being made to him in the first instance. However unbiased he may be, he is at all times primarily concerned with obtaining a tribunal decision in favour of his own department. While in theory these appeals are based mainly on fact and should be informal, in practice the insurance officers quote at length from previous decisions and from very intricate regulations in support of their case. Most of their observations are quite unintelligible to the lay person. Although the chairman of the tribunal is a lawyer, I have found that when the appellant is too sick to attend his solicitor is refused permission to watch the proceedings as a person interested, and difficult as it may be to believe it, such a refusal means that the hearing takes place with nobody at all in the room to watch the appellant's interests.My Lords, I suggest that that letter reveals a state of affairs which clearly demands investigation and redress. There 529 are a number of other points concerning the distinction between an insurance officer and a claimant in respect of an appeal. The insurance officer has full rights of appeal without any leave. But the claimant has various disabilities; he has got to get leave in the ordinary case. In particular, I suggest that it is high time that an inquiry was made into what seems to me to be a deliberate policy on the part of the National Commissioner, and possibly also on the part of the Minister, to set up a sort of new system of law in connection with the administration of these Acts.
I find it most disturbing to discover, as one clearly does in studying the decisions of the Commissioner in these cases, that in effect lie is setting up a new system of legal administration in connection with the appeals which come to him under these Acts. This is quite clearly stated in a letter to the Law Society Gazette—this time to the February issue—from a man who signs himself "Chairman of a local appeals tribunal." 1n the Later he refers to the review of a hook giving an epitome of decisions by the National Commissioner. The reviewer, in his review, had said that these decisions were just for guidance and were not binding on the local tribunals. The letter-writer—the chairman of a local appeals tribunal—writes correcting that impression. This is what he says:Contrary to what he says in his review, there is no doubt at all that these decisions are binding precedents. They bind the National Insurance Officers and they also bind the Local Appeals Tribunals. It would be very regrettable if any practitioners remained under a contrary impression.The writer of the letter then refers to the Haggen case and says that, in point of fact:These Commissioners' decisions are more binding on Tribunals than decisions of the Court of Appeal or the House of Lords. This applies in particular to Workmen's Compensation decisions given under the old system. Should there be a divergence between the Workmen's Compensation decision in the Court of Appeal or the House of Lords on the one hand, and a Commissioner's decision on the other, there is no doubt that the Commissioner's decision is binding, in preference to the earlier decision.The Commissioners have in fact said, on several occasions, that they proceed on a different footing from the Court of Appeal or the House of Lords because, in Workmen's Compensation appeals, the facts found by the 530 County Court judge were binding on the Court of Appeal. This position of a binding set of facts does not apply on appeals to the Commissioner.In other words, on the documents before him, usually without seeing the claimant himself, the Commissioner can find facts in quite a contrary sense to that in which they were found by the local appeals tribunal which had the man before them and heard him give his evidence. Selected decisions by the Commissioner are published, as I have said, by the Ministry, for guidance, and that is very helpful. But I suggest that they should be for guidance only, and not for the purpose of putting tribunals in a strait-waistcoat, especially in respect of this question of extending the prescribed period of time.
It is clear that the Commissioners do expect the tribunals to follow them, not only on the law but even on the findings of fact. I should like to refer to one or two of these decisions. There is, for example, pamphlet G5 of 1949, case number CSG949 which finishes up in this way.I think it right to emphasise the fact that the Commissioner's decisions are reported for the guidance of insurance officers and local tribunals as authorities to be followed by them when they have to deal with similar cases coming before them.No court of law, so far as I know, has ever laid it down that lower courts are to follow them in similar cases on fact. Indeed, as the noble Lord, Lord Macmillan pointed Out in the case to which I have referred—and it has been stressed time after time—the facts of one case are almost invariably different from the facts of another. I suggest that there is no authority in the Act of Parliament under which the Commissioner works to lay down the law in this way.
Another clear indication that the Commissioner is building up a new system of law independent of the Common Law is furnished by his ruling that the appeals tribunals need not apply the rules of evidence. I have here details of a very interesting case in which an appeals tribunal went completely wrong because they did not apply a very elementary' rule of evidence, and they are put right by the National Commissioner himself, who applies the rule of, evidence quite properly. Yet in his decision he indicates 531 that the rules of evidence are not to be binding on an appeals tribunal. He says:To insist on the rules of evidence being followed would, I think, be an embarrassment to claimants in many cases. Not being a court of law, the local tribunal is not bound by these rules.The rules of evidence were established by generations of wise judges who had to administer the law with the assistance of laymen—that is, juries. They were built up for the very purpose of protecting litigants against wrong decisions by juries taken in the light of statements made which were not evidence. Here you have a decision by the National Commissioner that a tribunal which is predominantly composed of laymen is not to be bound by these rules. Again, I am not aware where the Commissioner gets his authority for so holding.
I have taken up a great deal of your Lordships' time, and I cannot elaborate this important point as much as I should like to do. But I must confess that, after due consideration of facts which have come to my knowledge, and consideration of Mr. Haggen's case, I have been left with the feeling that the Minister and the Commissioner are, in fact, endeavouring to establish their own system of law in the administration of these Statutes, without regard to whether or not that system of law is in accordance with the general law of the land. I cannot help having the impression that there is some sort of collaboration between the Ministry and the Commissioner in respect of these matters. If there is I should regard it as quite irregular.
§ THE EARL OF SELKIRK
May I venture to intervene in order to set the noble Lord's mind at rest at once? There is absolutely no collaboration at all between the Commissioner and the Ministry.
§ LORD CHORLEY
My Lords I am very glad indeed to have that assurance on that point. I am quite sure that what the noble Earl has said will bring a great deal of relief. It is not only I who have had this feeling. That others have had it has been shown by communications made to me by more than one member of the Bar who is engaged in this sort of work. They will all be much relieved by the noble Earl's categorical statement on the point. It certainly ought not to be for the Minister, I would submit, nor for these Commissioners, to build up 532 some system independent of the Common Law, unless Parliament has expressly authorised them to do so; and I cannot find any such authorisation.
This brings me to my last point, and I shall deal with it very briefly. It is now twenty years since the Donoughmore Committee on Ministers' Powers reported that it was high time that an appellate tribunal should be set up for the purpose of reviewing decisions on matters of law given by special tribunals and administrative courts. We had a discussion on this matter not long ago on a Bill introduced by the noble Viscount, Lord Samuel, on June 27, 1950. In the course of that debate, Lord Llewellin quoted from one of the Hamlyn Lectures given by Lord Justice Denning. In that lecture, curiously enough, this very case of claimants under the National Insurance Act was taken as an example by the learned Lord Justice of the sort of case in which it was the Ministry against the citizen, and in which there was no provision for the citizen's right, so to speak, of appealing to the Law Courts. I have the quotation here, but I will not trouble your Lordships with it now, for no doubt it is in the minds of many of you. The material which I have put before your Lordships this afternoon seems to me to reinforce very strongly the recommendations of the Donoughmore Committee made all that time My final request to the Government is to reconsider the matter, to see whether they cannot find time during the next months to give effect to the unanimous recommendation of this strong Committee. I suggest that the liberties of the subject will not really be safe until some sort of provision is made for appeals from the decisions of ministerial tribunals of this kind. If the Government could reassure us on that point, I am sure it would give enormous satisfaction to a large number of people. I beg to move for Papers.
§ 5.31 p.m.
§ LORD MILNER OF LEEDS
My Lords, I should like to offer one or two observations on this matter, but my noble friend, Lord Chorley, has covered it so completely that it is not necessary for me to say very much. This question seems to me to be of considerable importance as it clearly affects all those exercising judicial functions of one sort or another.
533 My noble friend is asking for some explanation of the position of the National Insurance Commissioner, who frequently overrides local tribunals of National Insurance on questions of fact. In the case of Mr. Haggen—although I have no special knowledge of him and have met him on few occasions—I know him as a gentleman of considerable repute and a good lawyer, who has also done much useful social work in the city of Leeds. Having been Member of Parliament for Leeds for over twenty years, I am sure I should have heard had there been any complaint about his conduct as chairman of a local tribunal. On the other hand, I have had cases similar to those quoted by my noble friend, complaining of the refusal of the Commissioner to support decisions by the local tribunal which enabled applicants to claim, notwithstanding that they were in default in point of time.
I think my noble friend has rendered a service in bringing this matter forward. We have to remember that this is an insurance question and that applicants pay for their insurance. I understand it is a principle of English law, and a principle which is observed by most reputable insurance companies, that a man should not be deprived of rights for which he has paid on a mere technicality, such as the fact that he is late in point of time in making his claim. As my noble friend has said, the periods set out in the Statute are very short—namely, three days to give notice of claim and ten days for the claim itself, otherwise benefit is refused or, at any rate, postponed.
The other point I would make in regard to Mr. Haggen concerns the reason given by the Minister of National Insurance for failing to re-appoint him. The reason was, that he had:refused in certain types of case to apply the law as interpreted by the National Insurance Commissioner.I do not think that is a correct representation of the position. I am not aware that Mr. Haggen has refused to apply the law. What he insisted upon doing, and what his tribunal insisted upon doing, was to come to their own decision on the facts of a particular case. They had the applicants before them and had first-hand evidence. Our complaint is that the Commissioner, without having the evidence before him, so far as I am aware, and merely on the 534 documents, overrules the decision of the tribunal on a question of fact. Some of your Lordships know the obiter dicta on this question. Lord Justice Neville said in one case, Carnell v. Harrison:It is the duty of the court to decide questions of fact for itself, and in my opinion it is falling short of its obligations if it finds the facts in the case before it in a particular way because some other judge in another case, where the facts were similar, came to a certain conclusion.I should have thought that that was not only good law, but good sense. There are few cases which are exactly on all fours. What the local tribunal in Leeds and in other places have done, is to come to a decision on the merits, with the facts before them. Notwithstanding that, the Commissioner has thought fit to overrule the tribunal.
I find in the same pamphlet, G/5, which my noble friend quoted, the following case, No. C.S. 414/50, in which the Commissioner says:The trouble and expense involved would be futile if members of local tribunals in general were to ignore the principles explained in those decisions when dealing with cases to which they are clearly applicable, as the members constituting the majority of the tribunal in this present case appear to have done, on such ground, as that stated by them—that they were 'entitled to decide on the facts, no two cases being alike.'In that case the Commissioner overruled the local tribunal because they had insisted on decisions on the facts. As my noble friend has explained, the most usual case is where the ground of complaint is that of non-compliance with the law relating to the time within which notice of claim should be given. I should have thought that that was essentially a question of fact. It is conceded that ignorance of the law as to time limits is no excuse, though I think there may be arguments to be made against that, but tribunals have found "good cause" in cases where the applicants have been ill and unable to claim.
The Commissioner has taken it upon himself to overrule these decisions without having any evidence before him, and it seems to me repugnant to one of our fundamental principles that the Commissioner should have the right to adopt that course without, so far as I know, any authority. In effect, he is changing the law. I ask the noble Earl, Lord Selkirk, to tell us, first, what is the 535 authority of the Commissioner for overriding the tribunals on questions of fact; and secondly—and though this is perhaps a subsidiary question, it is important—is it desirable that the Minister should be able to appoint and dismiss members of tribunals which decide questions to which the Minister, or his Department, are parties? I support my noble friend's request for an inquiry into this matter. I will not detain your Lordships longer, but I hope we may have an answer to these two questions.
§ 5.40 p.m.
§ LORD LLEWELLIN
My Lords, I trust your Lordships will forgive me for making one or two comments on this matter before we have the Government's answer. I do not know whether the decision of the ex-Minister—because I understand it was Dr. Edith Summerskill who refused to reappoint Mr. Haggen—was right or wrong, but it seems to me that if we have a National Insurance Commissioner, he must be there for some purpose. I suppose one of his main purposes is to ensure by his decisions that there is some uniformity among the various local appeal tribunals, and that one does not take one interpretation of the law and another a completely different interpretation.
§ LORD CHORLEY
Perhaps the noble Lord will allow me to interrupt. I think his suggestion is a very reasonable one, but the Act itself simply establishes that the Commissioner is to hear appeals, and it does not indicate that he should have any such intention as the noble Lord suggests.
§ LORD LLEWELLIN
But normally, whether it is a court or a single man hearing appeals, the answer is that the lesser tribunals follow the decisions of the court of appeal and so some uniformity is established. That is so whether it is in the High Court or in the various smaller tribunals in the country. I should have thought that Parliament intended that when the Commissioner heard an appeal, certainly if it was upon a point of law, his decision would be binding on the tribunal. It is not for me to say, but I should have thought that mere ignorance of the time limits in the Act was no excuse, but that if a man was so ill in bed that he could not get up and give notification that he had a claim, then it 536 was a just and reasonable cause for his notice to be outside the three days. I should have thought that that is the way in which matters of this kind would be settled. But there was some intelligent reason for the late Government inserting in the draft Bill, and for Parliament consenting to, these periods of three days and ten days for notifying the fact of an accident, or illness, and for pursuing the claim; because if matters are allowed to drag on for too long there is not the opportunity for that investigation which everyone would wish to be made when claims have to be paid out, and which every honest claimant would wish to be available to the insurance officers.
Having said that, I would add that I am one of those people—and I have said this before in your Lordships' House—who dislike the appointment of tribunals of this kind being in the hands of the Minister with the activities of whose Government Department they are concerned. I have always wanted these tribunals, whether they are working for the Ministry of Transport, the Ministry of National Insurance, or anyone else, to be appointed by the Lord Chancellor, so that we shall have a board of persons who are appointed quite independently. I think I pressed that point upon the noble and learned Earl, Lord Jowitt, on one occasion. In that way, at any rate, justice is more likely to appear to be done than it may in some of the cases that are decided under the existing system. I believe it is the worst thing in the world that members of local appeal tribunals should be thought to be officials of the Ministry, having, as it were, to take their instructions, not directly from the Minister, but through the senior Ministry officials. If they are independent tribunals, they ought to be completely independent of any instructions whatever from Ministry officials. The question, therefore, arises whether people appointed should not have a longer period of tenure of office than apparently they have. I am not sure—no doubt the noble Lord, Lord Chorley, can tell me—whether they are appointed for five years, or whether the appointment is renewable annually, as in the case of Mr. Haggen.
§ LORD CHORLEY
In practice the period seems to be three years, but there is no statutory order governing it. The 537 statutory order simply says that he shall hold office in accordance with the terms of his letter of appointment.
§ LORD LLEWELLIN
If it is for three years, that may well be long enough. I am not saying for a moment that if a chairman of one of these tribunals consistently ignores the decisions of the person who constitutes the appeal tribunal above him, the opportunity should not be taken at the end of three years to appoint somebody who will observe those decisions, if, indeed, they are supposed to be binding upon him. Nevertheless, to get away from any individual case, I would point out that judges of the High Court, county court judges and justices of the peace are not appointed for short periods. I think it is as well that they should not be liable to come up frequently for reappointment; otherwise, if they were inclined from time to time to decide against the Executive their appointments might not be renewed. Although I admire the Americans in many things, I think their method of appointing judges is one of the oddest in the world. In the United States judges are elected, and that seems to me to be an extremely bad system. I believe people ought to have a reasonable length of tenure in office, and I hope the time will come when all these judicial or quasi-judicial bodies—not merely those for the Ministry of National Insurance—will be selected from a panel of men, the Lord Chancellor of the day being responsible for that panel and for the appointments.
§ 5.47 p.m
§ THE EARL OF SELKIRK
My Lords, I should like to say at once that my right honourable friend welcomes a debate on this subject. We have a vast machine to work, and it may be that at certain points the wheels of that machine will creak. Therefore if any noble Lord has any matter to bring to the attention of the Ministry, we shall be delighted. The size of the machine may be gauged from the fact that the membership of the National Insurance scheme is roughly about 25,000.000 people and the annual amount paid out in benefit is something of the order of £400,000,000. It is an enormous machine, and obviously it is one that must be kept under constant and careful supervision. I should also like 538 to say that I am grateful to the noble Lord, Lord Chorley, for giving me broadly the points he has raised. I would, however, say this. This machine is part of the structure of the country, and it is one on which people depend for security during times of difficulty. It is therefore of the utmost importance that, when criticising it, we should not in any way unwarrantably impugn the manner in which it is run. Therefore—and I hope your Lordships will appreciate this point—I have to be careful in what I say, because there have been made to-day some fairly broad charges which I do not think are entirely justified.
The points made by the noble Lord, Lord Chorley, fall roughly into three parts. First, he made some remarks of a personal character about the case of Mr. Haggen he then made some general remarks about the administration of the Act; and he next went on to refer to certain matters which would really involve amendment of the Act itself. If I may, I will deal with those points in that order. In the first place, I think it is a pity that the noble Lord insists on saying that Mr. Haggen was dismissed. The only reason for which he could have been dismissed would have been for misconduct. There is no question of misconduct here, and it is a great pity that the noble Lord should almost suggest that anything the Minister said indicates misconduct at all. Normally, the Minister does not give reasons why people are not reappointed. I think that if one gives this a moment's consideration, one will realise that whilst many people have high qualities, they may not possess those qualities of a judicial nature which are required for an office of this sort. If they do not possess those qualities, then there is no particular reason why the Minister should enlarge upon what he considers to be the necessary qualities and upon the absence or the presence of them. I think I may set the noble Lord's mind at rest on this point. A number of persons who have not been reappointed are over age, some have moved out of the locality altogether and one or two have resigned. As regards the others, for one reason or another they are not considered to be temperamentally suited for their appointment. They may be impatient, or they may have a bullying nature not particularly suited to judicial work.
539 In this case the Minister has mentioned the reasons why Mr. Haggen has not been reappointed. I should like to make it clear, however, that it is not because the decisions given by Mr. Haggen were unpalatable to the Minister. The Minister's task is to make the Act work, and it does not matter to him how any case is decided so long as it works properly. It has nothing to do with the merits of the view which Mr. Haggen tried to force on the Commissioner. Frankly, the reason is this. In certain types of case Mr. Haggen refused to apply the law as interpreted by the National Insurance Commissioner. I get that information from the Commissioner's statement, and I have a number of decisions in which the Commissioner has made very pungent remarks about it. I will read only one which says this:I cannot see how the local tribunal could bring themselves to say that good cause for failure to give notice of incapacity to the Minister, or claim benefit … had been proved in this case in face of the clear rule laid down in a reported decision. I think I ought to point out"—
§ THE EARL OF SELKIRK
I regret that this document does not give the name. I will tell the noble Lord afterwards.
§ THE EARL OF SELKIRK
I apologise for not having that information here. May I just finish reading? The decision continues:I think I ought to point out that it is most important that local tribunals should follow the principles laid down in Commissioners' decisions, because if they do not do so uniform administration of the Act is destroyed, and injustice is done by rendering the success or failure of the claimant dependent on the particular tribunal before whom a claimant happens to appear.There are other decisions, but the point is surely quite clear, that we are endeavouring to administer a uniform system of insurance. The noble Lord asked: Should the decision be binding on subordinate tribunals? I will say frankly that I do not know of any specific rule. I should have thought that it is perfectly clear in this country that where there is an appeal tribunal its decisions are binding on subordinate courts.
§ THE EARL OF SELKIRK
I think these are questions of interpretation of the Act in line with certain facts. It is not a matter of the Commissioner questioning a finding of fact by the tribunal. I am not anxious to go into these details, because, frankly, one can get tied up. It must surely be accepted that it is a rule of law and not an idiosyncracy of the particular judge who decided the matter. A rule of law binds all judges. I think that is absolutely fundamental. My noble friend Lord Llewellin raised the question of appointments. That is a matter for Parliament. Parliament has decided that the Minister shall make this appointment, and that decision was supported by the Royal Commission on Unemployment Insurance which was presided over by Mr. Justice Gregory in 1930 to 1932. He thought it was the proper thing, and I do not find anything in the Donoughmore Report expressing a contrary view. So far as the case of Mr. Haggen is concerned, he did not carry out the general procedure laid down by the Commissioner, and it is for that reason that Dr. Edith Summerskill decided not to reappoint him, a decision that was upheld by the present Minister.
§ LORD MILNER OF LEEDS
Will the noble Earl be more precise? In what particular did the local tribunal as a whole—not merely the chairman—fail to carry out the instructions of the Commissioner?
§ THE EARL OF SELKIRK
It was not even a directive. It was a decision laid down, and I read the Commissioner's remarks. I am not criticising Mr. Haggen at all. In a number of cases which were decided, the Commission made pungent remarks, saying that their decisions were not being carried out—or shall I say that their interpretation of the law was not being carried out—by the local tribunal. I have read one instance and I will read another, if the noble Lord desires. The name of the claimant in this case is 541 Sidney Dransfield, and the reference number is U.34/3. The decision says:So far as the grounds of decision of the local tribunal are intelligible to me, their main ground for unanimously allowing the claim appears to have been dislike of the provisions of the regulation to which the insurance officer had felt compelled to give effect, for the members of the tribunal state that they 'are unanimous in considering that to disallow would be iniquitous and regulation should be amended.'There is a perfectly good way of amending regulations in this country, and one of the ways in which not to do it is by judicial decision. If we once allow judicial decision to change the regulations of this country, we are at an end of the rule of Parliament and of the law. I say, with great respect, that neither Minister lad any alternative in this case but to tote the action which was taken.
May I go a step further, and say a word or two about the general administration of this Act? Regulations are made after very careful procedure. They are prepared after recommendations of the National Insurance Advisory Committee, and after approval by Parliament. It is obvious that these regulations may have to be improved from time to time, and I may say that, as announced in another place recently, a report on some of the regulations has recently been received by the Minister from the National insurance Advisory Committee. I am net able to say anything about that at present, because it has not yet been considered by the Minister. What I am able to say is that it will be published very shortly. It deals with precisely some of the points which the noble Lord, Lord Chorley, raised—that is, under what conditions claims may be made. Therefore, the matter is continually under review. I need only add that local advisory committees are also in touch with the Ministry and can make representation with regard to local administration.
There is one other matter which I must emphasise as categorically as I can, because it is important. It is this. There is no consultation between the Minister and the Commissioner on the administration of Acts, either directly or through officers acting on the Minister's behalf. I am quite certain that the Commissioner would resent it very much indeed if there were any suggestion that he was being influenced in any way by a 542 Minister. I would go so far as to say this: it is just as improper to make that suggestion as it is to suggest that any Government Department interferes with the judges of the High Court. I say that as strongly as I can, and I hope the noble Lord will accept it.
The noble Lord has made certain remarks in regard to evidence. It is true that the procedure of these tribunals is very informal; but if I may say so, with great respect, I see no reason to suppose that what I would describe as the fundamental rules of natural justice are not properly carried out. The noble Lord referred to the rules of evidence. He was quoting the rules of evidence in England. But we have different rules in Scotland. Rules of evidence are not eternal things that cannot be varied. I thought the noble Lord was a little confused when he suggested that the Commissioner could not lay down the procedure to be followed by the tribunal. The regulation says that the procedure is a matter for the Chairman or the local tribunal, or the Commissioner, as the case may be, to determine. The Commissioner is entirely responsible for the interpretation put upon "good cause." That is not a matter for the Minister to decide. It is not much good discussing case law in Parliament. If we do that we shall get into difficulties. It is not the Minister who makes decisions in regard to "good cause." This is a matter which is constantly under supervision, and I think the Commissioner has fairly good reasons for coming to the conclusion he did.
The noble Lord mentioned the subject of legal representation before the tribunal. This matter has been fully examined; it was examined by the Morris Committee in 1929 and by the Royal Commission on Unemployment in 1930–32, and also by the National Insurance Advisory Committee in 1948. All maintain the same view with regard to this matter: that, normally, legal representation before tribunals should not be permitted. The noble Lord said there was not equality of appeal between the insurance officer, on the one hand, and the claimant, on the other. In National Insurance cases, the insurance officer has an unrestricted right of appeal miler the regulations. The claimant has this right only if the local tribunal or the Commissioner gives leave, or if the decision of the tribunal 543 was not unanimous. His association has the right in all cases. This rule was specifically approved by the National Insurance Advisory Committee. The insurance officer is not concerned to get a decision against the claimant, but only to ensure that cases come before the Commissioner, where necessary, in order that the right decision, one way or the other, is given. In fact, the insurance officer often appeals to the Commissioner in favour of the claimant. With regard to fees, with the rise in the cost of living as it is at present, this sort of question is not easy. We do not accept the view that the men who perform this very important task are not of sufficient quality. We consider that they are entitled to fees but we recognise that it is unlikely that the motive of public service would be entirely absent from their minds in fulfilling these duties.
The noble Lord referred to the Donoughmore Report. The Donoughmore Report was of very great value. The only three surviving members of the Committee who presented that Report are members of your Lordships' House; we recently had the pleasure of welcoming Lord Waverley, who was one. It is proper to say that the Report recognises that, provided there are certain safeguards, the system of ministerial tribunals is both right and proper. I remember the noble and learned Earl, Lord Jowitt, once having a tremendous argument in this House on the matter. It is a system into which Parliament went with its eyes open before selecting this course. I believe that we have maintained the safeguards which were absolutely essential. I know that there are differences of opinion about this matter, and one must weigh the benefits of quick decision against, perhaps, a more careful interpretation of the law. The statistics, for what they are worth, seem to indicate that these tribunals are pretty live organisations. Let me give an example. In 1950 there were 12,000,000 new claims. Of these, 75,000 were appealed to local tribunals—that is to say, about one half of 1 per cent. Of these cases appealed, 30per cent, went in favour of claimants. Of the cases heard before the local tribunals, 2,600, or about 3½ per cent., were appealed to the Commissioners, and of this number about 1,000 cases, or 38 per cent. of all cases, 544 went in favour of the claimant. I do not wish to attach too much importance to these figures, but they suggest at least that the appeal machinery is working in a vigorous manner and is not being operated by any dull, inhuman rule of thumb.
The noble Lord spoke of appeal tribunals. I suggest that there is an appeal tribunal in the form of three Commissioners sitting together. They can take cases of real difficulty. Perhaps this does not fully meet the noble Lord's point, but I suggest that these tribunals and the Commissioner are not in any sense above the law. Perhaps I may be allowed to read an extract from the Donoughmore Report upon the point:The scope of the High Court's supervision is well established by law. If a properly constituted inferior tribunal has exercised the jurisdiction entrusted to it in good faith, not influenced by extraneous or irrelevant considerations, and not arbitrarily or illegally, the High Court cannot interfere. When exercising its supervisory powers the High Court is not sitting as a Court of Appeal from the Tribunal. but it has power to prevent the usurpation or mistaken assumption by the Tribunal of a jurisdiction beyond that given to it by law, and to ensure that its decisions are judicial in character by compelling it to avoid extraneous considerations in arriving at its conclusion, and to confine itself to decision of the points which are in issue before it.I should have thought that that applied fully in regard to the tribunals. My right honourable friend welcomes criticism, but I suggest that on the whole this machine is working fairly smoothly, and is gradually gaining a wider measure of public confidence. I hope the noble Lord will think over the points I have raised. I assure him that what he has said will be very carefully considered.
§ 6.9 p.m.
§ THE LORD CHANCELLOR
My Lords, I should like to deal briefly with two points. The first is that (whether I should admit it with shame or claim it with pride I will not say) I am one of the survivors of the Committee which produced the Donoughmore Report. Not only am I one of the three survivors, but I must admit that I was also one of the small drafting committee of three to whom the Report is due. All I can say is that if there is anything in that Report which I helped to write twenty years ago that in any way supports the arguments put before your Lordships to-day by the noble Lord. Lord Chorley, then I very 545 much regret that I wrote it. I do not think there is anything in that Report which can justify an attack on the system of tribunals set up under these two Acts. The other thing I want to say is this. I think that little service has been done to Mr. Haggen by raising his case to-day.
I ask your Lordships to consider the system set up under this Act. There is first an appeal to a local appeal tribunal and then an appeal to an appellate tribunal, La appellate tribunal, be it observed, which is constituted by judges of the highest repute and character. Some suggestion has been made, which I heard with the greatest regret, that in some way the Commissioner fell short of his duty. I can only say that If regard him, and I think everybody regards him, as a mar of the highest ability, and one who is discharging his difficult duties admirably. That is the appellate tribunal, either the Commissioner sitting by himself or the Commissioner sitting with deputy Commissioners. How can it he supposed that, when a system of that sort has been set up, justice can be duly administered to all and sundry if the local appeal tribunal thinks itself justified in disregarding not the rulings (nothing of the kind), not the directions (nothing of the kind), but the decisions of the appellate tribunal? Did not Parliament mean the appellate tribunal by its decisions to guide and direct the inferior tribunals? Of course it did.
What happened in this case? Mr. Haggen time after time disregarded, not the rulings, not the directions, but the decisions of the appellate tribunal. He says that he is going his own way. What is the result of that? Time after time his decisions are taken up to the appellate tribunal, and, of course, are reversed. Is that a proper administration of justice? I am not concerned to defend a decision of a Minister in the late Government, but I can only say that, in my view, Dr. Edith Summerskill behaved with absolute propriety in declining to reappoint Mr. Haggen, be he judge or tribunal, when he expressly—because it amounted to no less—said that he was not going to follow the decisions of the appellate tribunal. These are the only two points I wanted to bring up to-day. I venture to think that the noble Lord has done little service to Mr. Haggen by bringing this matter before your Lordships.
§ 6.13 p.m.
§ EARL JOWITT
My Lords, may I acid just one thing? I entirely agree with what the noble and learned Lord the Lord Chancellor has said. It is of fundamental importance that a judge should loyally follow the principle of a decision laid down by an appeal tribunal. The facts in two cases are never the same, but the principle which is applied in one case can frequently be applied to another. If it were not so, there would be no point whatever in having reports of cases. Although facts differ, yet certain principles run through the whole thing. I know nothing whatever about the facts, of this case, but if it be the fact, as has of sometimes happened in the past, that judges are rather astute and try to find out some differences in the facts, thereby to get out of applying a principle, then they are not doing a; they should do. I express no opinion oil it; I do not know.
All I want to say is this. I was the first Minister of National Insurance in the days of the Coalition Government during the war. I was responsible at any rate for the broad outline which Was followed in both these Acts, and I took a considerable share of the responsibility in this House during the last Administration. I think there is nothing more certain than that experience will show that the schemes of the Act do need alteration. I, as near a father as I can be to these schemes, should not in the least resent alterations being made. After all, before you can learn whether the shoe pinches, you must wear the shoe. We have now been wearing the shoe for some time, and I should be fairly certain that now there are definite points which experience shows should be improved. Maybe the point made by the: noble Lord, Lord Llewellin, was one. Indeed, I think that some of the points which the noble Lord, Lord Chorley, indicated when he came to the structure of the Acts, need consideration.
I was glad to hear the noble Earl say that the Minister was prepared to go into all the matters which are now being put before him by the Advisory Council. I think lie also said that he would gladly take into consideration all the matters raised in this debate, because if there is anything wrong will our machine the way to put it right is through Parliament. What is entirely wrong is that judges 547 should take it upon themselves to try to strain the words which Parliament has used so as to bring about what they think is a more equitable system. That is quite wrong. As the noble Lord himself has said, that would be the end of the rule of law and the rule of justice. It follows from what I have said that, in my view—and the noble Lord will agree with me—Parliament ought to be astute now to look into this matter and see whether the situation is satisfactory. If it does need variation, I hope that the Minister will consider the various points (some of which struck me as having great force) raised by the noble Lord, Lord Chorley, with regard to the wording of these rules and regulations.
§ 6.17 p.m.
§ LORD CHORLEY
My Lords, I will not take up much of your Lordships' time in replying to the debate, but there are a few points I should like to make. In the first place, I should like to assure the noble and learned Lord who sits on the Woolsack that nothing was further from my mind than to suggest that there had been any sort of impropriety on the part of the National Insurance Commissioners. The Commissioner himself is a very old friend of mine. I have the highest respect for his abilities and complete confidence in his integrity. But I am surely entitled to criticise in respectful terms if I feel that he is administering the Act in a way which the Act does not justify. Nothing which has been said has in any way convinced me that it is right for the National Commissioners, for example, to lay down that the rules of evidence are not to be applied by the appeal tribunals. The noble and learned Lord also stated that time after time Mr. Haggen and his tribunal had disregarded the interpretation of the National Commissioners. But Mr. Haggen himself denies that. My case is that the decision on it is an ex parte decision on the part of the very Minister whose Department is involved.
§ THE EARL OF SELKIRK
I have already read out two judgments. I have another if the noble Lord would like me to read it—in fact, there are twenty such judgments. He must recognise that there is a bit more to it than he is implying.
§ LORD CHORLEY
These are not cases which fall directly within the interpre- 548 tation of the Act. I have indicated that, if a man has influenza and cannot manage his affairs, then he is not within this ruling. The case to which the noble Lord referred, the Dransfield case, was a case where the man was ill with influenza and the local tribunal said that that applicant, on his own admission, acted in ignorance. But it was not a case of ignorance by itself. I have the case here. The applicant "was ill at the time," so that there was something in addition to ignorance. Any court of law in which I have ever practised would hold that that was something more. This gave the local tribunal the right to decide on the facts, and I should have said that they were perfectly entitled to come to the decision that they did in the Dransfield case. It is true that one of the members apparently expressed the view that this was a regulation which ought to be altered. Anybody who has practised in courts of law has heard a judge say: "This is a statutory provision which, in my view, ought to be altered"; and, provided that he does his best to apply the law as it appears in the Statute or in the cases, he is perfectly competent to say that in his view a position exists which ought to be altered by a higher court, or, if it is statutory, which ought to be amended by Act of Parliament.
§ LORD CHORLEY
I say that the Minister is not the proper person to decide whether he applied the law; it ought to be decided by some completely independent judicial tribunal. The noble Earl has not convinced me. Both the noble Earl who answered for the Government and the noble and learned Lord referred to the Report of the Donoughmore Committee. With great respect, the views of the Donoughmore Committee in regard to appeals from Ministerial tribunals are perfectly clearly set out, with all the ability in draftsmanship for which the noble and learned Lord is so famous. In recommendation 7, at page 117, there is mentioned the jurisdiction which the High Court has at present to control Ministers and Ministerial tribunals. The Committee point out that the existing procedure for invoking this jurisdictionis not satisfactory and should be replaced by a procedure more modern, more simple and Less expensive.549 I should like the Government to indicate that they can in fact carry through that recommendation.
Then, my Lords, there is this more important recommendation in regard to any party aggrieved by the judicial decision of a Minister or of a Ministerial tribunal—and let me say here that I entirely agree with the noble Earl that the Donoughmore Committee preferred Ministerial tribunals' decisions to those made by the Minister. So do I. I infinitely prefer this method of doing it. But the Committee did recommend that in regard to the decisions of Ministerial tribunals, a party aggrievedshould have an absolute right of appeal to the High court of Justice on any question of law.That is what I should like to see enforced, because, with all the respect that I have for the great ability of these Commissioners—undoubtedly they have been very wisely chosen; they are men of ability and experience—the system of this country is not to leave the last word on these important matters of law in the hands of a court of first instance without any possibility of appeal. Decisions in our ordinary courts on matters of this important can be brought to your Lordships' House. Equally was this so in this type of case—at any rate, in cases of industrial injuries under the Workmen's Compensation Acts. I was grateful for the assistance of my noble friend who sits on my lift, who spoke of Mr. Haggen's great reputation in the City of Leeds. I have had letters, I think from every single member of the tribunal with whom he sits, speaking of him in the highest terms and regretting very much the decision which the Minister took.
The noble Lord, Lord Llewellin, suggested, and I agree with him, that it would be well that the appointment of these chairmen should be taken out of the hands of the Minister—who, after all, is a party to the proceedings—and put into the hands of the Lord Chancellor. What I regard as of even greater importance is the question of dismissal. I suggest that there ought to be some better procedure 550 than that existing at the present time. It is quite true that technically it is not dismissal, but I suggest that it really comes to the same thing. There is this very short period of appointment and then, if the conduct of the chairman is not liked, he is not re-appointed. I suggest that that matter ought to be it the hands of some independent tribunal. I could not quite agree with the noble Lord, Lord Llewellin, in his description of what happens in the United States. It is quite true that in some States the judges are elected, but it is far from the general rule, and of course all Federal judicial appointments are not open to election.
Finally, may I say that I was not for a moment suggesting that the present machinery is not broadly the right machinery for handling this type of case. I was interested in the statistics which the noble Earl gave. I entirely agree with him that they indicate that a great deal of valuable work is being done. In my opening speech I said that I thought that, subject to proper safeguards, this was in fact the proper way of doing this work. I entirely associate myself with the words of my noble and learned Leader who spoke a moment ago. I am grateful to the noble Earl, Lord Selkirk, for some of the things he has said. I cannot agree with him in his views about the way in which Mr. Haggen has been treated, and I cannot agree with him that the present methods, both in respect of these prescribed periods and the appointment and termination of the offices of these chairmen, are in any way satisfactory. But I do not propose to ask your Lordships to divide on this matter, and I beg leave to withdraw my Motion.
§ Motion for Papers, by leave, withdrawn.