ADMINISTRATIVE TRIBUNALS

HL Deb 27 November 1957 vol 206 cc522-92

2.38 p.m.

THE MARQUESS OF READING rose to call attention to the recent Report of the Committee on Administrative Tribunals and Enquiries (Cmnd. 218); and to move for Papers. The noble Marquess said: My Lords, if I may be allowed to say so at the beginning, in returning, both figuratively and physically, from the foreign to the domestic scene, I am reverting to a theme with which I am afraid I have frequently afflicted your Lordships in past years. Those of your Lordships who have not had the leisure, or possibly the inclination, to study the Franks Report in detail, but may have taken the opportunity to examine the consolidated recommendations or groups of recommendations which are to be found at its end, may think that this Report is merely a series of somewhat abstruse legal reforms and proposals in regard to variations of practice and procedure. That view would be a great mistake. The Report is something far more than that, for underlying its recommendations there remain the basic principles of the liberty of the subject, of the rule of law and the need for the substance and the semblance of justice to be at one. Those principles are, I believe, now widely, if not perhaps universally, accepted in this country and, as I have found on my not inconsiderable travels in the last six years, they are not the least of the reasons why Britain retains so large a measure of admiration, of respect and, indeed, of envy in so many countries of the world.

But if we prize at their proper worth these essential elements in our thoughts and way of life, it is necessary that we should from time to time take a careful look at them, in order to be sure that they are still intact and immune from the encroachments of administrative expediency or the consequences of Parliamentary preoccupation with other perhaps superficially more pressing matters. The periodical application of the Geiger-counter of an impartial investigation is indeed needed in order to detect what mines may have been surreptitiously or inadvertently laid. It is for those reasons that the appointment of the Franks Committee was, I think, most widely and warmly welcomed, and now that their Report is before us we can truly say of the Chairman and members of that Committee that, in the austere Roman formula which said so little but meant so much, "They have deserved well of the State."

It may be that the Franks Report has not the stately sweep of the Donoughmore Report, now a quarter of a century old but still one of the great State Papers of our time. If that be so, the fault lies not with Sir Oliver Franks and his colleagues, amongst whom were included three valued Members of your Lordships' House in the noble Marquess, Lord Linlithgow, the noble Lord, Lord Balfour of Burleigh, and the noble Lord, Lord Silkin, but rather in the restricted—in my view, too restricted—terms of reference within which they were circumscribed. It seems an anomaly that although it is. I think, generally recognised that the appointment of this Committee arose out of what we know as the Crichel Down incident, yet by their terms of reference the Committee were precluded from consideration of precisely that type of inquiry.

It must have been an intimidating prospect for this Committee to contemplate their task at the outset, because, for better or for worse, perhaps inevitably, there have grown up in increasing profusion in recent years, in some degree as camp-followers of the Welfare State, a great number of miscellaneous tribunals concerned with a variety of subjects—National Insurance, transport, conscientious objectors, agriculture, rent, National Assistance and many more. Perhaps, in the circumstances of to-day, this is a situation only to be expected, even if it is somewhat deplored by some possibly reactionary-minded people. Perhaps it is accurate to say that these various tribunals have come into being under statutory power but without any overall system, without any precise correlation of practice and without any accord as to procedure. As I conceive it, the main task of the Franks Committee was to try to impart to all these miscellaneous bodies the greatest possible measure of logical order and consistency, although from the very diverse nature of the tribunals themselves it is perhaps asking too much to expect that any' comprehensive system of procedure and practice can be applicable to all.

My Lords, the Committee set about that task, which is one for which I cannot but feel that Hercules himself would have surely applied for, and rightly received. overtime at the highest possible rate. But they have accomplished their mission promptly, painstakingly, effectively, and (except for one relatively minor dissension by the noble Lord, Lord Silkin), what is very important, unanimously. And that is in itself no mean achievement Since I put down this Motion before the Summer Recess two somewhat remarkable events have taken place. Her Majesty's Government, of their own initiative, promoted in another place, on October 31, a debate on the Report, and, perhaps even more unexpectedly, took the opportunity of that debate to expound the extent to which, and the manner in which, they were prepared to accept, and in due course to put into operation, a large number of the recommendations of the Committee. I have never known any Report propelled into Parliamentary space with such Sputnik-like speed, and I can only hope that it will not continue to revolve in circles but within a reasonable time will descend to earth in legislative form. For although a certain amount of progress can be made purely on administrative lines, there can be little doubt that legislation will be required to give full force to the Government's projects.

Winding up the debate in another place the Attorney General pointed out that the total number of recommendations was 95, of which 71 have been either completely or broadly accepted by Her Majesty's Government; 8 have been accepted in some degree; 4 have not been accepted; and 12 must be reserved in whole or in part for further consideration. If I may say so, that seems to me to be a creditable score on the part of Her Majesty's Government in a matter of these considerable dimensions.

It is not enough—as the Committee, in the forefront of their Report, recognise—to confine ourselves to occasional spasmodic inquiries into the workings of these various tribunals. Some permanent body, the Committee thought—and I agree—is necessary in order to keep them under constant and close observation. For that purpose the Committee, rightly, recommended that there should be established a Council on Tribunals, which should have, as I conceive it, the general function of keeping a watchful eye upon the operations of tribunals; of considering such matters as a code of practice and procedure to be adopted by tribunals; of examining the possibility of some award of costs to applicants before the tribunal; of being consulted before new tribunals are set up; and generally of advising Her Majesty's Government (because, as I understand it, the functions of this Council are advisory and not executive) over this very large and important ground. The Committee recommended that there should be two Councils on Tribunals, one for England and Wales and one for Scotland. Her Majesty's Government's proposals have compressed those two bodies into one. I do not propose to argue the merits of that suggestion, but rather to leave it to the indignation of any noble Lords from Scotland who may wish to take the Government to task.

There is one matter in connection with these Councils on Tribunals which, to my mind, is of considerable importance, and where there is a difference between the recommendations of the Committee and the proposals of the Government—that is in regard to the appointment, not of chairmen but of the members of tribunals. The Government and the Committee agree that the appointment of chairmen should be in the hands of the noble and learned Viscount on the Woolsack, but there is a divergence over the method of appointment of members. The Committee's recommendation was that the members of a tribunal should be appointed by the Council on Tribunals. The Government disagree with that recommendation, and say that they should be appointed by the Minister concerned, after consultation with the Council on Tribunals. I confess that, in spite of my loyalty to my former colleagues, in this matter my view agrees with that of the Committee and not with that of the Government.

I believe that in all these matters it is of the greatest importance that, from the very outset, the shadow of the Minister should not be over the tribunal, but that it should be seen by everybody who proposes to go before the tribunal that it is a completely unprejudiced body, deriving its authority not from the Minister who will be concerned with the result of the inquiry, but from some outside body which is quite clearly disinterested and therefore in a position to relieve the mind of any applicant before a tribunal of any fear, however irrelevant or unjustifiable, that his case may have been departmentally prejudged in advance. It is for that reason that I prefer the recommendation of the Committee, and I hope that the Government may still reconsider their view on that subject.

The Committee rightly lay great emphasis on three principles: that in all these matters there should be openness, fairness and impartiality. Those are vital principles in the administration of any bodies of this kind, and the Committee have, I think, applied those principles firmly and consistently to all the recommendations which appear in their Report. For one thing, they are strongly in favour of public hearings. That I believe to be a perfectly sound decision, from which I gather the Government do not dissent, though the Committee make—rightly, as I believe—this one reservation: that in such matters as National Assistance, where the intimate private affairs of individuals may be concerned, the matter should be heard and decided in private.

My Lords, the Committee also laid great stress on the giving of full reasons for the decision of any tribunal, in order that there may be no dissatisfaction on the part of the applicant arising through not knowing the cause for which, and the basis upon which, his claim or application has been dismissed. In the past I recall very well that, in conjunction with a number of other Members of your Lordships' House, we did our best, in the years between 1946 and 1951, when a whole series of Bills were presented to us by the then Government, to urge upon the Ministers concerned the extreme necessity for including in those measures two vital matters. The first was that, as a general rule (though there might be certain limited exceptions), there should be an appeal from these tribunals, both so that a person may not think that his case has been wrongly decided by a tribunal of first instance and that he has no further redress; and also, and no less importantly, that there may come into being a body of authoritative decisions on those various matters by an appeal tribunal which can bring some harmony and unanimity into the decisions of the lower tribunals.

I am delighted to see that that recommendation is supported by the Committee, except that they make the reservation that there shall not be an appeal on law from the Commissioners of National Assistance, National Insurance and Industrial Injuries. That is the one recommendation of the Committee with which I am not fully in accord. Although I realise that those are eminent lawyers who hold the offices of Commissioners in these various fields, at the same time even Her Majesty's Judges are not regarded as finally infallible; and it seems to me a pity that, on a point of law, there should be no appeal to the courts even from those Commissioners. The Committee recommend, and I gather that the Government approve, that there should be an appeal on facts, on law and on merits from the great majority of tribunals, and that, with the exceptions that I have mentioned, there should be an appeal to the courts from the appellate tribunal on points of law. I am sure that the wider opening for appeals is right in principle.

As regards legal representation, here, too, the Committee recommend—and the Government support them—that normally, with certain perhaps less important reservations, there should be legal representation, if required, by the persons concerned before these tribunals. It was said, I think in another place, that this might constitute a sort of "lawyers' paradise." I conceive a "lawyers' paradise" to be a place where there is full employment and fat fees, but I do not see those tribunals providing either of those agreeable conditions, because I do not believe that there will be any great rush to employ lawyers before these tribunals. Certainly much admirable work is done, and I should have thought inevitably would continue to be done, by trade union representatives in presenting cases before tribunals of this kind. It seems right to me, however, that if a person wants to be legally represented he should be so entitled. It is purely voluntary on his part. After all, the legal profession is not the master but the servant of the public, and if anybody does not want to employ lawyers there is no need for him to do so. But I believe that the Committee is quite right and I am glad that Her Majesty's Government agree in substance that these tribunals should be open to the legal profession.

Any of us who have practised in the past in courts have seen only too many instances of an applicant appearing in person and having quite a good case but being completely incapable of "putting it across". When invited by the chairman or other functionary of the court to put questions to a hostile witness, such a person, far from importing any interrogative note into his subsequent remarks, breaks into a confused, prolonged and incoherent speech which does not really advance matters further. It is perhaps rather like the situation which sometimes arises on supplementary questions in your Lordships' House. I feel that that is a situation which ought to be, and will largely be avoided if these recommendations are accepted. I think the Committee and Her Majesty's Government agree that so far as possible there should be legal chairmen for most of these bodies and, in particular, for the rent tribunal. It is satisfactory that the Committee as a whole discovered little with which to find fault in the general conduct of tribunals, but they have some criticism to make of the rent tribunal and the county agricultural executive committee; and they strongly recommend that the chairman of the rent tribunal should always be a lawyer. I believe that that is probably right.

I want to give one word of warning in regard to the great extension (if it involves a great extension) of the use of legal chairmen. In my view legal qualifications are not enough. There must be legal experience as well as legal qualifications if the duties of a chairman are to be adequately carried out. From that point of view we might want to call upon the services—no doubt in most cases the part-time services—of members of the Bar who are qualified and experienced; and those are just the people who normally are busy with their own practice. The only warning I want to give—and I am sure it is one on which the noble and learned Viscount the Lord Chancellor will agree with me—is that it would be unwise for us so far to extend the scheme as to outrun the supply of members of either branch of the legal profession capable to carry out that task.

I believe that where what might be called the normal procedure of the courts of justice is gone through, where witnesses are called and cross-examined, speeches are made and so forth, it is a great advantage to have a chairman with legal experience. It is said that it is very desirable to have informality in these tribunals and I fully agree. One does not want any kind of full-dress trial every time a man makes an application under the National Insurance Act or appears as a conscientious objector. But in my view the presence of a legal chairman is likely to offset informality rather than emphasise it, particularly if he has members of the Bar before him, for he knows their ways and can keep them well in hard. If such a chairman sets the tone, I believe there will be little or no difficulty in preserving informality in these matters.

If the Bar and solicitors are to be admitted to these tribunals, it seems to me to follow logically and inevitably that we must extend to those tribunals the existing provisions in regard to legal aid and, in due course (when they come into being), the subsequent provisions in regard to legal advice. I know that there are difficulties in regard to legal aid and that there is already what the Home Secretary in another place called a "queue" of applicants for the extension of legal aid beyond its present limits; but it seems to me difficult to resist the logic of admitting legal representation arising from an extension of the scheme of legal aid and the subsequent scheme of legal advice in regard to these tribunals.

The next group of matters with which I wish to deal concerns something which I regard as of great importance—the position of inspectors, particularly inspectors in the Ministry of Housing and Local Government, in regard to the holding of inquiries. A question arises as to their method of appointment. The Committee were anxious that they should be appointed by the Lord Chancellor and not by the Minister concerned. I understand that Her Majesty's Government do not accept that recommendation but feel rather that inspectors should be appointed by the Minister after consultation. There again, as with the appointment of members of the tribunal, I do not want to see the Minister's hand in these matters but wish rather to preserve both the appearance and the reality of complete impartiality in bodies of this kind. I do not think we shall get that appearance of complete impartiality so long as it is known by people who are to appear before the tribunal that the Minister whose Department is intimately concerned with the decision of that tribunal has himself appointed the person who is to be the judge in the matter. It may be only a matter of appearance, but I believe that in matters of this kind appearance is almost as essential as reality in convincing persons who appear before tribunals that they are getting a fair deal.

Some years ago and from another angle of your Lordships' House I introduced a Bill which contained a provision that the reports of inspectors should be published. That particular clause and I believe all the other clauses were summarily dealt with by the then Lord Chancellor, my noble and learned friend (for he was my friend for more than forty years), the late Lord Jowitt. I observe that the Committee recommend, and the Government accept, that the report, so far as it concerns facts, shall in future be published. That is, to my mind, a very great advance indeed. The Government are a little more hesitant than the Committee in regard to the publication of recommendations. I should like to see the Government go the whole way and agree that not only the findings of facts but also the recommendations to the Minister should normally (there may have to be exceptions) be published for everybody to read; because that again, I think, in the same way as in other matters, will help to restore or uphold confidence in the tribunals before whom people are to appear. That the Minister, when his decision is made, should give full reasons for that decision is. I am sure, of the utmost value in this matter of upholding confidence fidence; and also that he should state as specifically as possible the policy of his Department in regard to the matters in hand. All those steps, perhaps small in themselves, will, I think, act as a real reassurance to a number of people who are increasingly concerned with appearance before tribunals of this kind.

My Lords, I have dealt only with what seem to me to be the outstanding recommendations of this Committee. No doubt other noble Lords will deal with others. Before I finish, I want to add this further comment. I have read with the greatest relief that, quite apart from what the Committee accepted, they rejected two proposals which were urged upon them; and it was a rejection with which I can only sympathise and at which I rejoice. It was pressed upon the Committee that they should recommend the introduction into this country of something in the nature of the droit administratif and the Conseil d'état, such as is the case in France. In my view, although I know that there are powerful arguments in support of such a procedure, although such an offshoot may perhaps be conveniently grafted upon a written code. such as the Code Napoleon, it does not spring naturally from a system of justice such as we enjoy in this country: and I am glad indeed that the Committee rejected it.

The other contention which the Committee rejected—and here again I could not be more thankful that they have taken that view—was to me, indeed. a startling contention. It was urged upon them by a high member of the Civil Service that these tribunals were not adjudicatory but administrative: that they were part of the apparatus of Government and not part of the machinery of justice. That seems to me an absolutely untenable thesis, and I am delighted that the Committee summarily rejected it.

In another place, Her Majesty's Government said that they had brought the Report before the attention of the House in order that honourable Members might make their contribution towards the questions therein discussed; and I do not for a moment doubt that those who represent Her Majesty's Government in this House will give an equal welcome to any suggestions which may flow from your Lordships in the course of this debate. This is essentially a matter in which the collective wisdom and experience of this House, even as at present constituted, may. I think, be of real value to the Government. It is also a matter which, however little the fact may be realised by Press and public, is of vital importance to every citizen to whom concepts like liberty and justice are something more than sounding but rusty brass. My Lords, I beg to move for Papers.

3.15 p.m.

LORD LUCAS OF CHILWORTH

My Lords, when the Lord Privy Seal opened a debate in another place upon the Franks Report, he used this language [OFFICIAL REPORT, Commons. Vol. 575 (No. 158), col. 400]: I am comforted in feeling that one great lawyer … will follow me and another great lawyer … will wind up. This is a lawyers' paradise, but the issues involved concern not only lawyers, hut the ordinary citizen. A great lawyer has opened this debate in your Lordships' House to-day another great lawyer, the noble and learned Lord, Lord Denning, is to intervene and make his maiden speech in your Lordships' House during the debate: and the greatest lawyer of them all, the noble and learned Viscount the Lord Chancellor, is going to wind up. I stand at this Dispatch Box as the humble representative of the ordinary citizen—a rôle that I have played upon many occasions when it might have been said that your Lordships' House was a lawyers' paradise. But I think that this debate is one in which laymen can speak with as great authority as the luminaries of the law.

I am sure that I voice the appreciation of all your Lordships in thanking the noble Marquess, Lord Reading. not only for the lucidity with which he has opened the debate but also for his charm of manner, with which he used to delight us in those days when he sat on the Front Bench on this side of the House before he passed, via the depressive atmosphere of the Government Front Bench, to the seat which he occupies now. On behalf of noble Lords on this side of the House, I should like to join with him in paying a tribute to Sir Oliver Franks and the members of his Committee, which, as the noble Marquess has said, contained three illustrious Members of this House. I think that, the noble Marquess said that the Report of this Committee could be recognised as one of the great State Papers. I would say that it is the greatest Report that has been produced in the lifetime of nearly all of us in this House. What I admire perhaps more than anything else is the intellectual honesty of its wording and the intellectual honesty of its approach. I think that Sir Oliver and the distinguished gentlemen who served with him have created a record. I have always been told by old and respected Members of your Lordships' House that any Report had to reside in the pigeon-holes of a Government Department for seventeen years before it reached, like wine, a full maturity. I agree, my Lords, because I was once Chairman of a Government Inquiry, and the cobwebs are still adorning the Report which was produced. I do not: think that this Report resided in the pigeon-holes for seventeen weeks; and for that we are very grateful.

Looking at this matter from the point of view of the ordinary citizen, I am encouraged by some of the praise which this Report has received, in so far as it is acclaimed as a victory for the rights of the ordinary man over authority. It may be. But, if we take the last decade, we ourselves, as ordinary citizens of this country, have, by our actions or inactions, built up this Frankenstein monster which now on every hand threatens to strangle the rights of the common man. It is by our will that this has been done. It is no good calling it bureaucracy; it is no good blaming civil servants for what is known as the "insolence of office". We ordinary people of this country are to blame, and I think that we in Parliament have a very special and heavy responsibility to bear, because how often are we in your Lordships' House now confronted, day in and day out, with what is known colloquially as "half-baked legislation". We pass it passively. The legislation is purely permissive. We delegate by regulation to the great machine of the bureaucracy. I think it is very apt that the discussion by your Lordships of this Report, which is the first effort that we are making to safe- guard the rights and liberties of the ordinary citizen, should take place at a time when public opinion is focused upon the question of whether or not your Lordships' House is worth retaining.

In my view—I have stated this before, and I see no reason why I should not state it again—the paramount and prime duty of your Lordships' House is that of a Revising Chamber, studiously and carefully to see that legislation does not go through which is purely a blank cheque for Departments to use just as they wish. There was an outstanding example in your Lordships' House within recent months, when a Bill came here which affected the liberties and the rights of the poorest and meanest of the citizens of this country without any due consideration of how it affected them. It was in that Bill that your Lordships' House had inserted four completely new clauses after debate and, if I may say so, after taking the Government to the Division Lobby and beating them—I am, of course, referring to the Electricity Bill.

In the course of the discussions upon that Bill this very subject—the independence of tribunals and the right of the ordinary citizen to be heard—was debated at great length in your Lordships' House. And may I say this? I am very glad that the Minister concerned is in his place. Let it be to his everlasting credit that he it was who interpreted the wishes of your Lordships' House in that regard; and his name will go down as one who was riot averse to altering his Bill at the 59th minute of the eleventh hour, after your Lordships had convinced him that the rights of the citizen were being overrun. I remember that when your Lordships went into the Division Lobby on the question of whether we should have independent inspectors, it was owing to the intervention, with his usual charm, of the noble and learned Viscount, nervous, I suspect, that the Government had to fear a second defeat in the course of one Bill, and feeling that he had to come to the avid of the Government, that the Government won the day. I always thought that his fears on that occasion were not well founded.

However, we see in the Franks Committee Report a vindication of every argument used in your Lordships' House on that occasion. The noble and learned Viscount, I know, will forgive me for reminding him of what was said upon that occasion when he asked your Lordships not to accept the Amendment I moved that the tribunal should consist of an inspector to be appointed by the Lord Chancellor. That has now found expression 100 per cent. in this Report. As your Lordships will gather from what I have said, I accept this Report. If your Lordships will turn to paragraph 40 of the Report before you you will see that the Committee say unanimously: tribunals should properly be regarded as machinery provided by Parliament for adjudication rather than as part of the machinery of administration. If you accept that, the whole of the proposals of this Report fall, like the pieces of a jig-saw puzzle, into their proper places. All we were trying to do in the battles which we had through all the stages of the Electricity Bill—and it was accepted by the noble Lord the Minister of Power—was to put into effect the first principle that is contained in paragraph 405. Here, if your Lordships will turn to it, you will see the Committee say—and I think this is fundamental— the individual has the right to enjoy his property without interference from the administration, unless the interference is unmistakably justified in the public interest. If the Government accept that, then the whole of the fight that your Lordships made has been vindicated.

It would be impossible to go over the whole of this Report, and I am not going to attempt any such thing after the excellent speech to which we have just listened, if I may say so without impertinence to the noble Marquess. I, like him, intend to pick out what I think are the most important passages. When the Government, through the mouth of the Lord Privy Seal, -have said that they accept without reservation the three cardinal principles which the noble Marquess has mentioned—openness, fairness and impartiality—I cannot help expressing my regret that, also through the mouth of the Lord Privy Seal, they appear to water some of that faith, and that in places it becomes a little lukewarm. The first matter I would mention is the right of legal representation before tribunals. May I make it clear that when I am talking about "tribunals". I am including them all, whether they are bodies consisting of a chairman with a number of members, or whether they come down to an inspector, who, as at the present time, but I hope for perhaps the last time, has been appointed by the noble Lord the Minister of Power—they are all tribunals.

Brushing aside all legal formula, what I am afraid of is the power of the public purse—the public corporation or the Government Department who spend the taxpayers' or the ratepayers' money in the briefing of leading counsel who can tear to pieces the ordinary, inarticulate man who wants to take advantage of his rights and appear before the tribunal. That is why I am glad that the Committee are in favour of the right of legal representation. I would go further and say that there should be free legal aid—which I look upon as one of the blessings of the Welfare State. How can the ordinary, inarticulate citizen hope to be able to present his case fairly, factually and properly before the might of the Bar? I anticipate that what the noble and learned Viscount on the Woolsack will say is that we have not the money; we cannot afford it. Well, that may be right; but I hope that he will go some way towards accepting the principle that the successful objector should have his expenses refunded. I know of many cases where the might of the legal profession has been arrayed because it was thought that it would frighten the small man who could not afford to brief even a junior counsel.

That brings me to the next point, on which again I agree with the noble Marquess, Lord Reading; and I hope that the noble and learned Viscount on the Woolsack will agree with this. I think that in every case where evidence has to be given, which may be contradictory, and where cross-examination is allowed, there should be a chairman who, though not necessarily a barrister, should at least be someone with legal training. That is the greatest guarantee that the ordinary, inarticulate citizen will, at least, get a fair hearing. In all the tribunals of which I have had experience it has been shown to be most necessary that those who are taking evidence should know how to take evidence, how to sift it and how to protect the non-legal witness. When there is a case, as was mentioned in another place, of the Central Electricity Authority going down to the Bradwell public inquiry with a well-known "silk" and forty-three witnesses, what chance has the village resident against the might and cleverness of counsel, well versed in the art of discrediting witnesses, unless the chairman is "the other man's friend" and will, at least, see that he gets a fair deal?

As I say, I do not mind if the chairman is not a barrister so long as he has had legal training; I would not dismiss all the inspectors or chairmen who sit on these tribunals to-day because they do not happen to be barristers. I know that I nave only to appeal to the Lord Chancellor on this point in the interests of justice, because there is grave disquiet throughout the country about the working of these tribunals. I read with interest the statement made by Sir George Coldstream, the permanent head of the Lord Chancellor's Department, when he said before the Franks Committee that there was grave public disquiet about the operation of these tribunals. That is the sort of powerful understatement one would expect from a man of the calibre of Sir George Coldstream.

I come now to the appointment of these tribunals, and I would treat this matter in two sections. I may have a suspicious mind, but I do not like the words used by the Lord Privy Seal in another place when he was giving the Government's dictum in this regard. He said [OFFICIAL REPORT, Commons, Vol. 575 (No. 158), col. 406] The Government sympathise with the object of these recommendations. We propose that, in general, chairmen should be appointed by the Lord Chancellor in England and Wales and by the Lord President of the Court of Session in Scotland. What does "in general" mean? Either the Lord Chancellor will appoint them, or he will not. Are there to be exceptions? Perhaps the noble and learned Viscount can enlighten me on that matter. The Lord Privy Seal went on: We do not, however, think it would be desirable for the new Council to appoint members of tribunals. Why not? The reason given by the Lord Privy Seal is: Such an arrangement would not preserve proper accountability to Parliament. How does that affect it? He went on: It is a matter of keeping checks and balances throughout. What checks? What balances? How can the appointment by this Council of members of tribunals—a proposal which receives my hearty support—affect the accountability to Parliament? I hesitate to bring a discordant note into these proceedings, but is this the first victory of the Departmental influence in seeking not to give up their patronage? How can the Government say in one breath, as the Lord Privy Seal did, that they are in sympathy with the principles of openness, fairness and impartiality, and still want all the members of the tribunal to be selected by the Department concerned in a case which is to be heard? I should want a far better reason than "checks and balances" and "accountability to Parliament" to accept that.

With regard to the appointment of inspectors, I hold that it is fundamentally wrong, as the Franks Committee openly say, that an inspector should sit as a chairman by himself and make recommendations on a case where his Department is vitally interested. The reason stated for this is that [Col. 410]: The Government further recognise the importance of emphasising the independence of the inspectorate, and to meet the spirit "— "the spirit", mark you—

of the Committee's recommendations we propose that in future the Minister will appoint them only after consultation with the Lord Chancellor, and will be free to dismiss them, should such an eventuality arise, only with his consent. That is nothing but an attempt to give an air of respectability to a shabby arrangement, and to use the skirts of the Lord Chancellor's gown to cover it up.

Why cannot the Lord Chancellor appoint them? The only person who will satisfy the ordinary citizen is somebody appointed by the Lord Chancellor. Why is it that there is such a respect for the law in this country? Why are the Home Office, the Ministries or any Government Department not allowed to appoint the Judges? It is because Judges must have, not only the spirit of independence, but the air of independence. It is the old maxim over again: that not only must justice be done, but it must be apparent that it is being done. I think it is completely wrong that a Department should appoint an inspector who has to make a report and advise the Minister on what action that Minister should take.

I now come to what I think is the great omission from this Report. I am surprised that the Franks Committee do not make any reference to what I call the "Tweedledum and Tweedledee system ", where the noble Lord, the Minister of Power, appoints an inspector to hold inquiries into whether we should be wrapped round by pylons, atomic power stations and super-grids—a matter which has caused considerable disquiet in the country. To give that inspector an air of respectability he has, sitting holding his hand, another inspector from the Ministry of Housing and Local Government. I tell the noble Lord that never, while that system goes on, will such inquiries win the confidence of the public which is so essential. What will it mean, if Parliament agrees to the Government's proposal? The inspectors will be the same people appointed in the same way, and the same things will go on. Therefore, I sincerely hope that that will be altered. As the Report says, this is the biggest question. The inquiries held by the Ministry of Housing and Local Government number about 6.000 a year—they outnumber the rest of the tribunals by a long way—and I beg the noble and learned Viscount the Lord Chancellor to use his influence to ensure that they come under his power of appointment and suspension.

The publication of the reports of ministerial decisions is again a vital matter. There are exceptions—the noble Marquess mentioned some—but, by and large, openness, fairness and impartiality will never be observed unless it is put into practice in all this routine. Do not, I beg of you, after having received this Report, try to sidetrack it to save Departmental face. Experience has taught me that the greatest malefactor—and I use that term without offence—in the oppression of the citizen is the Service Department. I beg the Government to accept the recommendation of the Committee that in every case where the rights of the citizen and his property are affected Service Departments shall be treated on all fours with every other Department, except when the appropriate Secretary of State can issue his fiat that it would not be in the interest of the security of the State so to do. To-day a mast may be put on the highest hill for all to see for thirty miles around, and nobody knows about it until it is there, because the Department concerned says, "Ssh !—security! Nobody must know it is going up "—although everybody can see it when it is up. That goes on every day.

We have fought this battle before in your Lordships' House. We had not the pleasure of the company of the noble and learned Viscount in those days, but I remember having to defend a similar system when I was responsible for conducting the Patents Bill through your Lordships' House. I remember that great man, the late Lord Simon, reading this House a lecture about security and the crimes that can be committed in its name. So long as the security of the State is safeguarded, I do not see why a Service Department, when it comes to their relations with the ordinary citizen, should not be treated like any other Department. They get away with far too much at the present time.

Those are the points I wished specifically to raise. Let me conclude by saying this. I hope that the publication of this Report will be a red letter day in the lives of the ordinary citizens of this country. It is not a battle won—the battle is only just commencing—but in the end perhaps we shall be able to evolve a system which Parliament itself cannot do. Parliament, with all the good will in the world, and this House, marvellous institution as it is, as a revising Chamber, cannot safeguard every inroad upon the rights and liberties of the subject. Man was born to be free. Man was never made for the State: the State was made for man.

3.49 p.m.

LORD REA

My Lords, I find myself so much in accord with the last two speeches that I do not propose to detain your Lordships for long. But, of course, there are certain feelings in this quarter of the House that the motivation—if that is the correct technical term—behind this Committee sprang from this quarter of the House, particularly from an event about ten years ago, when the noble Marquess, Lord Reading, who has put this most interesting and useful Motion before us, was speaking from approximately this position in a most able and masterly speech on a Bill dealing with the liberty of the subject. Therefore, your Lordships will forgive me if I look upon this whole matter from the angle of this south-west corner of your Lordships' House, because it is the Liberal diagnosis of the evils existing in the present system which has been confirmed by this excellent, lucid and able Report of the Franks Committee.

We have continuously, in season and out of season—though we do not admit out of season—advocated the lifting of these many restrictions whose origin is based either in war or in the chaos and difficulties which arise immediately after a war. It is for those two reasons, of course, that objectionable legislation, as we now regard it, has had to be inflicted upon the country. All I can say is that during the last war, and since the last war, when this legislation was imposed, I think no blame can be attached to the Liberal Party for putting it into force.

We welcome this Report very much, as the last two noble Lords have said. We cannot help comparing it in some ways with the Liberties of the Subject Bill, on which it impinges in some respects, though in others it deals with a completely different field of investigation. However, it is very welcome, so far as it goes, and we very much hope that Her Majesty's Government will implement the Committee's recommendations by introducing appropriate legislation as soon as possible. What we particularly want to know is how far the Government will go, and whether they can be persuaded, apart from rejecting one or two points which do not appeal to them, to include Other points which were not strictly within the terms of reference of this Committee, and therefore have not been reported on by them.

We feel that this Report, excellent as it is, sweeps the floor only where the floor is seen; it does not go under the sofa or get at the cobwebs in the corner. If I may be forgiven for referring again to the Liberties of the Subject Bill, it strikes me as particularly interesting that so far in this debate enthusiastic support for this Report should have come from the Conservative Benches and the Labour Benches. I make that point because your Lordships will remember that in 1948. when the first Liberties of the Subject Bill was put forward, it had the enthusiastic support of the Conservative Party, but the Labour Government found no time to give it further progress. The same thing happened in 1950, when my noble friend Lord Samuel introduced a further Liberties of the Subject Bill: we again had Conservative support, which was shown in the Division Lobby by a vote of 66 votes to 24. But again the Labour Party were quite unwilling to implement it. The matter was brought up on a third occasion, again by my noble friend Lord Samuel, in the form of a Resolution, but at that time the power of government had changed from the Labour Party to the Conservative Party. And although your Lordships may see some consistency in it, we found the situation a little peculiar; on that occasion we had the full support of the Opposition, the Labour Party, but had the hostility of the Government, the Conservative Party.

If there is any consistency in this matter, with some modesty I claim that we at least are consistent. What is the cause of that? It is very simple, and I think I can put it without being offensive. These regulations are to ease things along for the Government and for Government Departments. We who are in almost permanent Opposition have claimed that they go too far and give the Government too much power, so that Departments who wish to take a certain action know that they have that extra power in reserve, though they do not intend to use it. It is only in very exceptional and accidental cases, of course, that such power is used, as it was in the Crichel Down case, which is not, as the noble Marquess said, touched on in the terms of reference of this Committee. We quite understand why Government Departments, in particular, like to have a little more power than they really need, because it is extremely useful; and I think that explains why any political Party in Opposition perhaps sees the justice of the matter without looking through the spectacles of expediency which may occasionally be put on by those in Government office.

My Lords, there are one or two points that I should like to put to the noble and learned Viscount on the Woolsack—because this is a very wide question, and I suggest that one or two of the objects of the Liberties of the Subject Bill enter into it, and I believe that the Government are to produce legislation implementing this Report. I hope the Lord Chancellor will at least consider putting in the Bill one or two other matters which seem to me perfectly relevant and have been put before your Lordships in the Liberties of the Subject Bill before now. The first I need hardly emphasise, because it has been touched on most ably already: a Minister of the Crown should not be a judge in his own case. I need not say more on that; it seems an elementary principle of justice. Secondly, when a person or body has a grievance the official appointed to hold the inquiry should be independent. I think the noble Lord, Lord Lucas of Chilworth, has made that point abundantly clear and it is a perfectly obvious one.

There is one point that has not been touched on and I think it is not irrelevant, and that is the matter of Statutory Instruments. As your Lordships know, if a Ministry wishes to take a certain action it can very often do so, without coming to Parliament for an Act to be passed, by the creation of a Statutory Instrument placed on the Table of your Lordships' House. Your Lordships are entitled to reject that Statutory Instrument within a certain period, but if your Lordships do not reject it the Statutory Instrument takes effect. The point here is that your Lordships are not allowed to amend that Instrument. You can accept it in toto or reject it in toto. I think that there are cases where, again for the reasons I have just explained, a Government Department may submit a Statutory Instrument which probably takes a little more power than is actually necessary—and how convenient that is for the man wielding the power! Surely your Lordships ought to be free in such a case to amend the Instrument: to whittle it down. possibly in some cases to expand it, but at least to have the right of amending it. I would ask the noble and learned Viscount on the Woolsack whether he will take that point into account in any future legislation which may be introduced.

There is another point which seems to me equally non-irrelevant, if I may use the term. As your Lordships may know, at present the Crown is in a position to withhold evidence in these cases before tribunals. It is perfectly obvious that the Crown must have power to withhold evidence in certain cases, particularly where national security or something of that nature is involved, but I suggest that it is too much of a temptation to any Government Department to be able to withhold evidence when by withholding such evidence they can win a point that they would not otherwise have won. I am not imputing any improper behaviour to anybody, but I suggest that the withholding of evidence by the Crown is a very dangerous practice if carried beyond the narrow limit originally intended.

Moreover, unless I am mistaken—and I am open to correction—officials dealing with these matters apparently have a right of search without the ordinary warrant required by a police officer. It seems to us in this part of the House completely wrong that anybody should be entitled to go into a house, search for documents, take them away without listing them or giving a receipt, and behaving in that extraordinary highhanded manner which before the last war Parliament would not have tolerated. I should like to refer to the sub-heading on page 7 of the Report. The heading is "Policy is not our concern ", and in the last sentence the Committee say this: We have no concern with the policies which have given rise to the various tribunals or adminstrative procedures, and are not to be understood as approving or disapproving of these policies. "Policy is not our concern" say the Committee—and they are perfectly right to say so. But policy is our concern, my Lords, and I do ask the Government, in the light of the recommendations of this Committee, not to look upon the whole question only as a matter for paring but also as a matter for expansion.

4.0 p.m.

LORD DENNING

My Lords, it has been my lot as a Judge to review the decisions of many tribunals, and may I say how welcome it is that this important Report should be accepted by all Parties in the State, because it contains and reaffirms a constitutional principle of the first importance—namely, that these tribunals are not part of the administrative machinery of government under the control of Departments; they are part of the judicial system of the land under the rule of law. This Report shows how that principle should be put into practice. These tribunals should, whenever appropriate, give reasons for their decisions, and their decisions should be subject to appeal to the courts on points of law. Many cases have come before the courts to show the need for action on these matters. The courts have exercised a jurisdiction in the past to control tribunals, but they have been fettered by antiquated rules. It is said that they can interfere if the tribunals go outside their jurisdiction altogether but that they cannot interfere if the tribunals exercise their jurisdiction badly.

Let me give your Lordships some instances of what that means. Take rent tribunals, where there is no appeal to the courts and take a case which arose concerning a modern block of high quality flats in Brighton. Well-to-do people took those flats, having agreed to pay the rent which was asked. After they had gone into the flats, they applied to the tribunal for a reduction, They called no evidence in support of their claim. The landlords called a chartered surveyor and a chartered accountant and gave evidence that the rents were reasonable, indeed, low, in all the circumstances. The evidence of the landlords was not contradicted or cross-examined, yet the tribunal, in flat contradiction of the evidence, reduced the rents. There was an attempt to get the courts to interfere, but it had to be said "No; no appeal is possible from the rent tribunals."

But it was the Agricultural Land Tribunals which gave the courts as much distress as anything, in the days when thee was no appeal from their decisions. There was the case of Mr. and Mrs. Woollett, with their bungalow and four acres in Essex. The land was requisitioned during the war, and after the war the Minister told them that in twelve months it would be released. Desiring to make their market garden there, they made provision accordingly: they bought a rotary hoe and other implements, and they put up an agricultural store. But within six months the Minister had changed his mind; he had determined to acquire the site compulsorily: and he did. The Woolletts took the case to the Land Tribunal, and the Tribunal affirmed the Minister's action—no appeal to the courts. The Woolletts did all they could. They brought the case up, not on the merits—because they could not bring it up on the merits—hut on the technicality that the tribunal had not been properly appointed. The court could not see its way to give effect to that technicality and affirmed the decision. But the notice that had been taken of the case ensured that in due course the Minister on his own initiative did release the land and return it to the Woolletts.

Take another case, that of Mr. Benney, a farmer in Cornwall. He had a farm, a house and 155 acres. His father and his grandfather had occupied the land. His father had built the house on his marriage. The Agricultural Land Tribunal ordered him out of house and land, on the ground that he had not kept up a reasonable standard of production. He had nowhere else to go—there was no provision for alternative accommodation. He, too, applied to the courts. He could not apply on the merits, but he found a technicality; that the Tribunal had dealt with 151 acres but the Minister had made an order for 155 acres, and the courts were able to seize hold of that technicality to upset the order. I hope that Mr. Benney is still in his farm. No appeal on the merits!

However, the courts have been cleaning up their own machinery a little. This year there was an application in respect of a Medical Appeals Tribunal, from which there is no appeal to the courts. Mr. Gilmore, a blacksmith, had lost one eye at his work twenty years ago. That was before the days of any National or Industrial Injuries Insurance. Two or three years ago, after Industrial Injuries Insurance had come in, he was at work and a piece of ash flew into his other eye; so there he was, blind in both eyes. The Medical Appeals Tribunal gave him only 20 per cent. benefit, because they thought that they had to deal with only the latest injury. On a true reading of the regulations his case ought to have been treated as one of total blindness, and lie ought to have been given 100 per cent. I am glad to say that the courts—although there was no appeal, and Parliament had said that the decision was conclusive—furbished up their own machinery; and as the Tribunal had given reasons, and those reasons were wrong, the courts were able to upset that decision.

I hope that I have said enough to shoo that there is need to affirm most strongly the recommendation of the Committee that there should be an appeal to the courts on any point of law. But what form is this appeal to take? It is a difficult matter, because the structure recommended by the Committee is this. Taking the agricultural committees, they say "Wipe away the executive committees and put new tribunals in their place. Put above them Agricultural Land Tribunals. Let there be an appeal from them to the High Court, and an appeal to a higher court from there." Perhaps further consideration should be given to the question of whether that should be the structure of appeal.

I will tell your Lordships something about an appeal structure with which I had some connection—namely, the Pensions Appeals Tribunal. After the war the late Lord Jowitt, of honoured memory, appointed me as the nominated Judge to hear all appeals from ex-Servicemen. The machinery of appeal is this. The Ministry look into a case, and say whether or not it is a proper case for a pension. If they reject it, there is an appeal to a Pensions Appeal Tribunal, which consists of a lawyer, as chairman, a medical man and a Service member. If they reject it, there is an appeal to the High Court on points of law. I was nominated as the Judge to hear all these appeals.

See how the course of justice may unknowingly go wrong! I had not been sitting for two or three weeks, when I realised that the Tribunals had been putting the burden of proof the wrong way—they were putting it on the Service man to prove that his disability was attributable to war service. That had been the law before 1943; but in 1943 the Royal Warrant was amended to say that if a man was fit when he went into the Service and disabled when he came out, there should be a presumption, and a compelling presumption, that his disablement was due to war service and that the burden was on the Ministry, if they could, to prove the contrary. So far as I could see, despite the change in the Royal Warrant, the Tribunals had gone on in the old way. They were saying in their reasons, "We cannot find sufficient ground for saying that this was attributable to war service." I hope I was right, but in every case I allowed the appeal.

Further than that, there arose the question of those people whose cases had been decided in the last two years on a wrong basis. Application was made to extend the time limit for an appeal. The Attorney General of the day argued that a judge had no power to give an extension of time. I held that an extension of time was permissible, and made it reasonably clear that in every case the time would be extended; whereupon the Government of the day, very properly, set up a special Review Tribunal which reviewed all those cases. As a result, many men got the pensions to which they were entitled, and counsel for the British Legion, addressing me afterwards, told me how admirably the Review Tribunal had done their work.

What I have said shows how, quite unconsciously and unmeaningly, a tribunal may slip into error and may need to be corrected. But that is not the only purpose of an appeal. Another purpose is to get uniform decisions. There were fourteen or fifteen tribunals operating all over the country, and one might come to a decision different from that of another. There were difficult cases. Cancer, for example, is a very difficult and arguable case. On the one hand, doctors could not say what was the cause of cancer, so how could it be said that it was not due to war service? On the other hand, it was said that cancer is just as prevalent in civilian life as it is in the Army, and that there is no possibility of its being due to war service. One tribunal would decide a case in one way and another tribunal would decide in quite a different way. How unfortunate for all the widows and other dependants! We arranged to have test cases in which the medical evidence and the legal position in a typical case of cancer could be settled and decided, so that that might act as a signpost for all other cases of that type. That was done in regard to cancer, leukæmia, varicose veins and other ailments which continually arose, so we achieved uniformity of decision. That, then, is the other value of an appeal.

As a result of this experience I would ask that, if appeals are to be limited to points of law, a liberal interpretation should be given as to what constitutes a point of law. I will give your Lordships one illustration. Gunner Lee had suffered a great deal from stomach trouble while in the Army. He had reported to Army doctors, and they had pooh-poohed him and put the case on one side. One suggested that he was malingering. When he went to a civilian hospital it was found that his condition was by then inoperable, and he died. His widow brought the case which eventually came to me. She conducted it in person. The man's captain, his comrades and his wife herself proved how he had reported sick to the Army doctors and not been given attention; and the tribunal had decided against him simply because nothing appeared in his medical history sheet in regard to his complaints. Medical history sheets, however, may be incomplete. Rightly or wrongly, I held that if a tribunal comes to an unreasonable conclusion, that is a point of law with which courts can interfere. I am glad to say that only a year ago this House, in its Judicial capacity, held that if a tribunal conies to a conclusion to which no reasonable man could come, that is a point of law on which the courts can interfere. In passing, may I express the hope that in any structure which is made in future the jurisdiction of this House in its Judicial capacity will be preserved. Those who remember the workmen's compensation cases which came to this House will recall the liberal interpretation then given by the House in its Judicial capacity—that the burden should not be on the workman who is injured but on his employer.

My Lords, I have drawn attention to the demerits of tribunals. Let me now say this on their behalf. We all make mistakes. These tribunals are a most valuable part of modern society. They decide disputes which are usually between the individual and the State, and for the most part they are composed of laymen, often unpaid. Most of them have the essential qualifications that they are knowledgeable, right thinking people, and they do the work often as a matter of public service and not for reward. Do not think that it is necessary to replace all of them by lawyers. A good lay man on a tribunal is better than a bad lawyer—and there are not enough good lawyers to go round. These tribunals form as valuable and indispensable a part of our judicial system as justices of the peace; their work is just as valuable, and they too should be held in high regard. It is the great merit of this Report that it is unanimous. It is accepted by all Parties of the State, and by Her Majesty's Government. That, surely, will give all the ordinary people of this country who are interested in liberty great cause for hope.

4.17 p.m.

LORD CHORLEY

My Lords, I am sure that every noble Lord in the Chamber will wish me to express his deep appreciation of the maiden speech to which we have just listened. I feel par ticularly proud to be able to convey your Lordships' congratulations to the noble and learned Lord because he has provided me, as a teacher of law, and the many other teachers of law in this country, with a tremendous amount of extraordinarily stimulating law over the last few years. His influence in a profession which tend! to be rather conservative has been wholly admirable, and this afternoon your Lordships have had a taste of the stimulating quality of the mind of the noble and learned Lord. I can assure him, on behalf of us all, that we shall look forward to hearing him intervene in our discussions, and particularly those which have a legal slant, on many occasions in the future.

In the course of my speech I shall deal with one or two points made by the noble and learned Lord, but I should like to dot the "i"s and cross the "t"s of one remark which he made towards the end of his speech. The noble and learned Lord has called attention to the considerable number of mistakes which have been made by these tribunals and which the courts have been able to correct; and he indicated that mistakes were not peculiar to the tribunals. Anybody who has practised in the courts will realise that mistakes are often made in ordinary courts. I will not say just as often, but quite often: and it is not always possible there for litigants to appeal. Again, the law which the courts are administering is often quite out of touch with the social conditions of the present age. As we all know, there is a Committee advising the Lord Chancellor on reforms in the law.

I think that the noble and learned Lord. Lord Denning, is very right when he says that we must not run away with the idea that the only mistakes which are made are mistakes in these administrative tribunals, because mistakes are very common both in the substance of the law itself and in the way it is administered. That is bound to be so, because in this frail and human world we are obviously a long way from getting any perfect system, either for the administration of the law or for the administration of the ordinary business with which these tribunals are concerned—much more concerned, in my contention, than they are with the actual administration of legal rules. We are not likely to get 100 per cent., or anything like 100 per cent., perfection in either of these spheres of action.

I think we are indebted to the noble Marquess, Lord Reading, for giving us the opportunity of debating this Report this afternoon. I feel particularly grateful to him because I do not agree with the Report so much as he does. In particular, I should like to pick out one matter with which he agrees and I do not. That it is of fundamental importance I agree with the noble and learned Lord. Much of the material with which the Franks Committee was concerned is not the ordinary material of the law but the material of administration; and it seems to me that that fundamental difference, which is recognised in most other States, is not recognised in this country, and it is a great pity that it is not. In other words, there is a great deal to be said for the Continental system of the droit administratif, which, I think, to a considerable extent has been applied in the United States, which derives a great deal of both its law and its administration from the Common Law.

I would not, of course, advocate the introduction into this country of the droit administratif, or of the administrative courts just as they exist in France or Germany—our history is different from theirs—but it seems to me that it is a mistake to entrust the solution of these problems, at any rate in all cases, to the judges in the ordinary courts of law, whose whole experience is in a different direction. I should like to see the appeals, which I entirely agree ought to take place on questions of law and possibly on certain other aspects of these problems, go to a court which is not just an ordinary Divisional Court of the High Court of Justice but to a special administrative court, in which a Judge of the High Court might sit with an experienced administrator and perhaps some other man of eminence brought in from industry or commerce, who would bring to bear the experience which a captain of industry acquires during the course of his business career.

My Lords, I think that the Franks Report, although I am critical of it in some respects, will certainly rank very high in the Constitutional history of the country. It will rank with the Report of the Donoughmore Committee, to which in a way it is complementary. Both the Reports are documents of very considerable Constitutional significance. I think that the great importance of the Donoughmore Committee's Report was that it vindicated the value—indeed, I think the necessity—of delegated legislation in the modern State. I think it went further than that: it vindicated the essential democratic validity of delegated legislation, although some people would not agree with that view. Similarly, the Franks Committee has vindicated the value, and the necessity, of these administrative tribunals and administrative inquiries.

As to their validity in a democratic system, the vindication in the Franks Report is not so clear as that in the Donoughmore Report. I think it is a little more shaky than it need have been. Both the Donoughmore Committee and the Franks Committee discussed and describe certain dangers which are inherent on the one side, in delegated legislation, and, on the other side, in the work of administrative tribunals and in these administrative inquiries which are held by the Departments. These matters, which I think everyone will agree are most important, figure largely in the Franks Report. I think that this is the reason, certainly one of the reasons, for the very favourable reception which the Reports have received, and particularly for the favourable reception which the Franks Report has received in your Lordships' House this afternoon, in another place and generally at the hands of those commentators who have discussed it.

Nevertheless, as I have indicated already, there is a number of respects in which it seems to me that the Franks Report is open to some criticism. If I make most of my remarks this afternoon on these matters. I hope that your Lordships will not think I am generally hostile to the Report. After all, one cannot spend all one's time in saying one likes this or that; it is much better, I think, to indicate those parts which seem open to criticism. The Report contains many comments and recommendations in respect of which I would certainly add my voice to the general chorus of approval which the Franks Report has received. After all, Queens' nourished me also.

I suspect that a great deal of this general commendation is due to the opening series of remarks—almost platitudes—in regard to general Constitutional affairs. There are more of them in the first few pages than in any other Report I remember, and I must say that I read those pages with a certain amount of trepidation. The Report afterwards becomes quite different. I suppose that it is necessary to voice a certain number of platitudes in the beginning of a Report of this kind, but to me, at any rate, it suggested that the Committee were living in the 19th century and were dominated by the work of Albert Dicey, if not by the famous doctrine of the separation of powers which was current in an earlier century. But before we reach the end of Part I, we find that the atmosphere changes and the realities of present-day Government and present-day politics convert the Franks Committee to a more realistic view of the situation.

In paragraph 30, it seems to me, we get a really fundamental change in outlook. There it is laid down that the most useful approach is an empirical one. I take that to mean that each situation ought to be dealt with on its merits, and that, I believe, is a profoundly true way of going about the discussion of this particular problem. After this, the substance of the Report deals with the various types of business which call for the setting up of tribunals and for the making of inquiries by the Department. It does, in fact, deal with the situation on empirical lines, and that seems to me to be the real strength of the Report. It takes each situation and deals with it in a practical, commonsense way and makes valuable suggestions all along the line.

The first of the problems, one which is fundamental, and on which I find myself in disagreement with the noble Marquess and other noble Lords who have spoken this afternoon, is whether these administrative tribunals should be regarded as essentially adjudicative bodies and not administrative bodies. It seems to me that their very description, administrative tribunals, shows that they are concerned essentially with problems of administration—at least in very many cases. I do not think we can really generalise about that. Some illustrations given by the noble and learned Lord, Lord Denning, were cases where they were dealing with matters which I should have said were really legal matters. In some of the other cases they are administrative matters. That is why it seems to me that it is dangerous to generalise about these things.

The Franks Committee make a broad generalisation to the effect that the machinery has been provided by Parliament for adjudicative purposes. I do not think the matter has been in the minds of Parliament at all. In most of these cases. Bills come before Parliament as drafted in the Departments, and the Departments are directed by the Government, by the Executive, not by the Legislature. The Legislature certainly gives its imprimatur to what the Government have decided, because it is a question of decision by the Government, for the decision of the Government, in the actual reality of politics, in ninety-nine cases out of a hundred, is required for the purpose of carrying out some piece of social policy which it is the policy of that particular Government, representing a particular political Party in the country, not only to put on the Statute Book but actually to carry through by means of the administrative machinery which is used for these purposes.

The type of rent tribunal to which reference has been made seems to me to be dealing with a legal situation and not an administrative one. The tribunals, or many of them—I do not want to generalise—are established for the purpose of dealing with disputes which arise in the application of social policy and not for dealing with the sort of disputes which arise in law and come before the ordinary courts. They are not concerned with the ordinary disputes which come before courts of law—I repeat that because it seems to me that it is really essential to this discussion. In my opinion, we are getting away from the objective, which is the carrying through of a social policy, a policy of the kind with which Parties in the State are now concerned and which they have endorsed for action. Therefore, to turn these tribunals into part of the ordinary court system of the country will, in my view, be to hamstring the development of social policy. And I do not believe that we can afford to do that.

For the same reason, I disagree with with the noble Marquess about the complete independence of these tribunals. Each of them, as has been said, "is an integral part of a bit of administration," and, in my view, Sir Norman Brook was perfectly right from an historical point of view, in the little discussion he had with Sir Oliver Franks when he said that this was how the tribunals came to be established and that that was the way in which the Cabinet Secretariat and heads of Department had regarded them. The Franks Committee are entitled to say that they do not think that that ought to be so: in fact, they have said that. And the noble Marquess, and I think the noble and learned Lord, agreed with them. All I can say in respect of those tribunals, which are normally administrative—

THE MARQUESS OF READING

My Lords, may I ask the noble Lord a question? I am getting a little confused. Is he saying that because a particular decision is in connection with the social policy of a particular Government therefore it is an administrative and not a judicial matter?

LORD CHORLEY

I do not think it is solved in that way. You have to look at each particular matter and decide what it is concerned with. Many of these questions in regard to industrial injuries which are dealt with at one part of the Franks Committee's Report are clearly questions of policy. If, in point of fact, the Commissioners decide in a way which does not fit in with the policy of the Department concerned, a new Order in Council is issued in order that the matter may be put right, and the tribunal will, in future, so to speak, carry through the policy which the Government have decided is the right one for protecting the health of the working man in factories and the like. I think that to treat this matter as a pure matter of law is altogether wrong and gets us into inextricable difficulties.

The importance of the point is that on policy the Minister is answerable in Parliament. Of course, the noble Marquess and, I think, the noble Lord, Lord Lucas of Chilworth, also, rather pooh-poohed this point about the responsibility of Ministers to Parliament for the work of these tribunals. That seems to me a most important matter, because it means that the administration, through these tribunals, can be brought before Parliament and criticised there. Independence is certainly a virtue, but responsibility, I suggest, is a necessity in these cases. I therefore agree with the Government, who I understand have in fact accepted the view that the answerability of the Minister for the work of the tribunals must be preserved. It is, no doubt, right that the work of the ordinary Judiciary should be protected against public criticism and Parliamentary criticism. I accept that, though at the same time I think we ought not to forget that we pay quite a heavy price for it. I feel sometimes that the work of one or two members of the Bench would be improved if it could be criticised a little more in public. But I certainly feel that it would be altogether wrong if we were to extend this immunity from criticism—particularly from criticism in Parliament—to all these tribunals. This is what would have to happen if they were to become completely pendent tribunals, part of the normal judicial system, as I understand is suggested by the Franks Committee and supported by the noble Marquess.

In this connection it is of first importance that the Franks Committee have found in practice that there is no interference by the Departments with the tribunals and their work. I think that that ought to be underlined. I was glad to hear the noble and learned Lord, Lord Denning, say that in his experience that was borne out by what the courts found in connection with those cases which are brought before them on appeal. In fact, under the present system we have both independence and responsibility to Parliament, and if that is so why should we interfere? The Franks Committee answer: "You cannot always be sure that independence will continue". Surely we have had these tribunals in existence now for a very substantial period of time, doing their work on the whole admirably, as the noble and learned Lord has said, and with complete independence of Ministers and the Civil Service. So I suggest that it would be altogether wrong to interfere with it. I gather that, on the whole, that is the view of the Government.

The proposal for setting up a corps of independent inspectors—as I understand it, it is for inspectors to be appointed by the Lord Chancellor—seems to me to be even more unrealistic. These inquiries which are held up and down the country, for the most part—and here again one cannot generalise, because cases may differ a great deal—are just a device for enabling the Minister or some other person who has to give an administrative decision to inform himself of the facts of the local situation and to obtain informed advice from people who are particularly well qualified and well placed to give it. Therefore the inspector must make the inquiry in the light of the policy inherent in the Statute being administered, and of the Department for whose Minister he is holding the inquiry. Is it not then obvious that the inspector must be appointed by the Minister who is holding the inquiry?

I agree entirely with my noble friend Lord Silkin, who I understood dissented from the view that there should be a corps of inspectors appointed by the noble and learned Viscount on the Woolsack. The Lord Chancellor has already so many jobs to do that I should not think he would look forward to having to appoint a whole corps of independent inspectors of this kind, although no doubt if Parliament put it upon him he would undertake it vigorously and with his usual ability. However, I gather that the Government are not accepting this proposal of the Franks Committee either, and I will not labour the point further except to say that this proposal seems to me to be of a piece with those rather less realistic approaches which here and there one finds in the Report.

There are two matters which I have already raised in an earlier speech on the gracious Speech from the Throne and to which I should like to refer. I do not want to labour them unduly, but I think I should perhaps say a word or two on them. The first is the question of appeal and judicial review. The existing rights of judicial review, as the noble and learned Lord, Lord Denning, pointed out, and as was pointed out in more detail in the Franks Report, depend on the old prerogative writs in their modern form, certiorari and prohibition and mandamus. The only one that has been much used in later years is certiorari, which, of course, is limited in its scope, and the Franks Committee, very properly it seems to me, felt that something more generous in the way of appeal was necessary.

That view they elaborate in paragraph 107 of their Report. I need not deal with it in detail, but at the beginning of the paragraph they refer to making all decisions open to appeal. A little later on, however, they modify that view and rather run away. In particular, they exclude decisions of the National Insurance and the Industrial Injuries Commissioners. Here I at last agree with the noble Marquess, Lord Reading, because I cannot myself see why these particular tribunals should be free of appeals from their decisions, at any rate on points of law. The Franks Committee say that they are, in fact, staffed by specialist lawyers, and that is true; but it is often valuable on a particular point to get the view of eminent lawyers who are not specialists. I feel myself that there ought always to be the chance of thinking again by another group of people in regard to any decision. If one wishes to make sure that frivolous appeals are not brought, then, as I suggested on a previous occasion, one could allow these appeals to go by leave of the Court of Appeal or the Divisional Court, or whatever court was set up as the appeals tribunal.

The other point is that if this view of the Franks Committee is right (the Government have not expressed an opinion about this particular matter) and there ought not to be appeals from these National Insurance and Industrial Injuries Commissioners, then I suggest that their recommendation that certiorari should remain open should be looked at again, because in the last few months there have been several cases where appeals have been brought from these commissioners by means of certiorari. Questions of law, wrongly decided on the face of the decision, are, as the Lord Chancellor knows, open to appeal by certiorari, and these cases have been cases of that kind. So that there is here, so to speak, a little roughness in the Franks Report which I suggest should be looked at and cleared up one way or another.

The other point is in regard to inquiries. In paragraph 387 of the Franks Report the right of appeal by 'bird parties is considered and rejected simply on the ground that it is alleged to be impracticable. The Committee do not explain why it is impracticable, and I myself should like to have a good deal more evidence before being satisfied that it is. They go on to say: It is of course open to third parties, in cases where the applicant appeals against a refusal of planning permission, to attempt to prevent development of which they do not approve by opposing the applicant's case at the inquiry. But that is only one side of the matter. Third parties may be just as interested, or even more so, when permission is given. Permission to develop a piece of land right up against a public common or right up against somebody's back garden may be very injurious indeed to the public or to a particular person, and I should have thought he was just as much entitled to be in a position to object and make his objection known as anybody else.

But even if he is not to be allowed to have any right of appeal. I suggest that he should, at any rate, have a right of audience at the time of the original decision; and to have a right of audience he must know what is happening. The situation as it exists at present is that there is no reason why he should know what is happening, and I am suggesting that the law should be amended so that reasonable publicity should be given to planning applications in order that the local planning authority should have the benefit of public opinion before they come to a decision as to whether permission should be granted or not. As the law stands, the only obligation on the local planning authority is to maintain a register of planning applications, which they have to do under Regulation 12 of the General Development Order, 1950. You may say that technically that does give publicity; hut, in fact, it is not one person in a thousand who ever knows of the existence of this register, and, even if he does, unless he is a wealthy man and can afford to employ a solicitor who will send his clerk round once a week or once a month to look at the register, there is no way in which he can discover what is happening. The result of all this is that unless the local planning authority choose, as they may well do, to notify persons who may be interested, then an application can be granted without anyone outside the council knowing anything about it until it is too late for anything effective to be done. That, I suggest, is not a satisfactory situation.

An interesting illustration of how this works has cropped up within my knowledge recently. At Haslemere, certain people who are interested in amenities are at present engaged in an attempt to induce the local planning authority to revoke a planning permission which was granted for development in an area which has been recommended in the Report of the National Parks Commission as a Conservation Area. This planning permission was granted in June of this year, and it was not until towards the end of August that the local Haslemere Preservation Society, or any of the people who had gardens and land round about, or the National Trust Blackdown Committee, which owns land contiguous to this area, knew anything about what had happened. Now it is possible for these people—and I understand some of them are doing it—to present a petition to the local council, asking them to exercise the powers of revocation which they have under Section 21 of the Town and Country Planning Act, 1947. But this is very late in the day, of course, and it means that, up to a point, vested interests have been established; and that makes it much more difficult to get the matter properly considered.

I suggest, therefore—and I think that this is inherent in the Franks Committee Report—that people who are affected by these things ought to be told what the position is. Paragraph 67 of the Franks Report—which deals with a different matter altogether, but the heading is valuable—says Making the citizen aware of his rights. That seems to me to be an important aspect of the whole of this business: it is wrong that there is no need to bring these applications for alterations in the plan to the knowledge of the people interested. I hope the noble and learned Viscount will be able to give us an assurance of improvement on this particular point. I hope that these two matters, which are matters of detail, and which I have had to explain at some length, have not bored your Lordships. They are, I think, matters of substance, and I am hoping that the noble and learned Viscount will be able to help us in his reply.

4.54 p.m.

LORD WISE

My Lords, I wish to deal with only one section of the Report, and I hope to do that in a few words because I understand that my noble friend Lord Silkin is anxious to speak. The section with which I wish to deal is that in regard to the county agricultural executive committees. We have been treated this afternoon to some interesting speeches on the question of the law as covered by the Franks Report, but I wish to deal particularly with agriculture. I am encouraged in doing so by the fact that in another place the Lord Privy Seal suggested to Members there that he would be glad to have any suggestions in regard to agriculture. The noble Marquess who opened the debate this afternoon also referred to the fact that the Government have invited suggestions before they put into operation matters arising from the Franks Report. Her Majesty's Government have already made reference in the gracious Speech to portions of the Agriculture Act, 1947, with which they propose to deal in due course.

The Franks Committee have made certain recommendations on procedure so far as the agricultural executive committees are concerned, but, of course, those suggestions may be completely out of date when the legislation which is envisaged by the Government eventually conies into operation. In a debate in your Lordships' House on November 13 it was suggested by the Minister speaking on behalf of the Government that the alterations which the Government were seeking to make were likely to be particularly drastic in regard to Part II of the Agriculture Act, 1947. The Franks Committee dealt particularly with the question of supervision and dispossession, both of which are referred to in that Act.

The noble Lord, Lord Rea, said, quite rightly (it is also stated in the Report) that the Committee were not concerned with policy. But, of course, the recommendations which they have now made in their Report touch upon policy as it was at the time when the Report was drawn up; and as I said a moment ago, that may be altered in the light of future legislation. I personally—I cannot speak for other Members on this side of the House—should be sorry to see the powers of the county agricultural executive committees curtailed. In my view they have worked remarkably well since the passing of the Agriculture Act. They have done an honourable job extremely well, and they have been very fair in all their dealings. Under the Act, they were charged also with the duty of … promoting agricultural development and efficiency by such means as the Minister may direct and of exercising such functions as the Minister may delegate to the Committee … If the powers of supervision and dispossession are to be taken completely out of the hands of the agricultural executive committees in the future, I feel that that may be the beginning of the end of the good work which they have done in the past.

The Franks Committee have suggested that a new tribunal should be set up, and that recourse to supervision or arbitration, or anything of that sort which may be necessary, should not be entirely in the hands of the county agricultural executive committees, and that the occupier or the owner, the tenant or the landlord, should be able to approach a new independent tribunal. On this side of the House—and I think it is so elsewhere—we can see no reason whatever for the appointment of an additional tribunal. The Agricultural Land Tribunal is there, and even now, in extreme cases of supervision or dispossession, recourse is made to the decision of the Tribunal after the hearing of the evidence. So far as we can see there is no need whatever for an additional tribunal. Any matters which arise in the future—whether Part 11 of the Agriculture Act, 1947, is scrapped, or whether it is altered in any way—can well be referred in the first instance, if necessary, to the existing Agricultural Land Tribunal.

The Franks Committee also deal with the question of appeal in regard to supervision orders. That is a matter upon which there is a considerable difference of opinion, and I hope that the Government, before they conic to any decision, will consider it seriously. The National Farmers' Union, the Country Landowners' Association and the National Union of Agricultural Workers are against the exercise of any appeal, whereas other bodies connected with agriculture think differently. The Wilson Committee thought in One direction and the Franks Committee are thinking in another direction, so it is obvious that there is a difference of opinion, which I hope the Government will consider and iron out before any fresh legislation is brought to your Lordships' House dealing with this question of supervision or with the alteration of Part II of the Act. My Lords, that is all I wish to say on this Report. I wanted to be brief, but I was anxious to accept the invitation of the Lord Privy Seal so that, at any rate in your Lordships' House, while we have dealt with the legal aspects of the case this afternoon, there should be some voice to deal with the question raised in the Report of the future duties and functions of the county agricultural executive committees.

5.2 p.m.

LORD SILKIN

My Lords, I should not have thought it necessary to speak this afternoon but for the fact that two of the speeches—that of the noble Marquess and that of my noble friend who sits beside me—dealt specifically and at some length with the two points upon which I, as a member of the Franks Committee, had made reservations. I thought perhaps it would be right if I explained my reasons for disagreeing with my colleagues on those specific matters. Before I do so, I want to discharge one very pleasant duty: to congratulate the noble and learned Lord, Lord Denning, on a very fine maiden speech and a great oratorical effort. In a sense, I feel that a great politician has been lost, but the law has gained. It may be that he could combine the two, hut at any rate—and I say this as no mere formality—we all hope we shall hear him very often in this House, and not merely on legal subjects. The tradition of the House prevents me from having the temerity to disagree with him on some of the matters that he raised, and I propose to follow tradition; but on some other occasion I shall be very happy, if he gives me the opportunity, to try to cross swords with him.

I want to say one or two things by way of preliminary and background. The first is that, as the House will appreciate. I agree with everything in the Report except the two matters on which I have made reservations. But, of course, as every noble Lord will appreciate who serves on a Committee, you agree with things on balance and with greater or less certainty. Often you feel that a particular point is not worth disagreeing about, although you have doubts about it. Therefore the fact that you have agreed with ninety-one recommendations does not mean in the least that you agree most fervently with all of them. Some you agree with wholeheartedly, some you have some doubts about; and then conies the point where you feel that these are things you really cannot accept. And that is my own case. I felt it right to say that, because it may be that in the course of my (I hope) short remarks I shall not be agreeing with everything said in the Report, even outside the two reservations.

Another point I should like to mention is that we heard a great deal of evidence, and the thing that seemed to us all of greatest importance—at any rate, it seemed to me of greatest importance—was the question of public inquiries. We heard little or no evidence (I think these are the words of the Report) to indicate that there was any dissatisfaction at all with the conduct of those inquiries. We never heard a single suggestion that the inspectors were not independent; that they were bound to make decisions because they were employed by a particular Minister. And, of course, we never heard any suggestion that the Minister concerned had prompted any decision. We heard not a single word of dissatisfaction as to the way the inquiries were conducted—and here I can speak with very considerable experience from both sides of the fence. When I was a Minister I had to make a large number of decisions based on the reports of inspectors. I never heard a single complaint about the way in which the inquiries were conducted or about the inspectors. Since I ceased to be a Minister I have had some professional experience, and I would say exactly the same thing. Therefore in dealing with these public inquiries we are not dealing with something which is arousing universal or large-scale discontent.

A considerable number of these inquiries relate to compulsory purchases of land, and I am absolutely convinced that an enormous number of inquiries of that type are the result of the feeling, which I am afraid I share, that the basis of compensation for compulsory acquisition of land is unfair. Indeed, the Report says in terms that a large number of these inquiries would be avoided if a fair basis of compensation for the compulsory acquisition of land were provided.

With that background may I now examine two specific questions, the appointment of inspectors and whether their reports should be published? On the question of the appointment of inspectors, we are here, of course, talking mainly of the Ministry of Housing and Local Government, who have the bulk of the inquiries. The Ministry of Education and the Ministry of Transport both have occasional inquiries, as I think do the Ministry of Power; but I believe that in those cases they are ad hoc inquiries. The Ministers appoint a barrister who is not in their service. I think on the basis of a rota. He conducts the inquiry and, so far as I know, generally there is no question of policy involved and no question really arises. I do not think that there has been any complaint about such inquiries and the Committee did not seek to deal with them: they were considering the bulk of the inquiries, those carried out on behalf of the Ministry of Housing and Local Government, by inspectors who are in the employment of the Minister.

I suppose that it is thought to be wrong that a servant of the Minister who has to make the decision should conduct the inquiry, and it is for that reason that it is proposed in the Report that the inspectors should be appointed by the Lord Chancellor. That would give inspectors an independence which, presumably, they do not have at the present time. Alternatively, as the noble and learned Marquess would say, if they have such independence, it is important that they should appear to the general public w have it: and that can be secured only by their being appointed by somebody else.

Of course, in fact, the decision is not the decision of the inspector. That is a factor which is constantly overlooked. He is not there to make a decision; he is not asked to make a decision. He is asked merely to ascertain certain facts and to put those facts before the Minister, who himself takes responsibility for the decision and is answerable to Parliament if he makes a wrong one. Therefore, if I may say so with all humility, to regard this as a judicial proceeding is utterly wrong. It is not a judicial proceeding at all; in my opinion, it is an administrative decision, but, of course, the Minister and everybody concerned have to act in a judicial spirit.

If it is accepted that the inspector's duly is to ascertain the facts (and that includes hearing the evidence and the argument; inspecting the locus in quo. and doing everything necessary to inform the Minister of the position; and he may make a recommendation, if he feels so disposed, on the basis of the policy of the Department: he must have that in mind), then I say that the question of his being independent of the Ministry is utterly irrelevant. Indeed, I would go further, and say that it is desirable that the inspector should be a part of the Ministry so that he may know the policy of the Ministry and have it in mind when ascertaining the facts and making inquiries.

Let me give an example. Suppose it is the policy of the Department that there shall be a green belt between town A and town B, and that that green belt should be preserved. That is the policy of the local authorities concerned as well, and it is embodied in their development plan. It is important that fie inspector should know that that is the policy, and should understand and appreciate it when conducting the inquiry. If he were completely independent and divorced, from the Ministry, I think he would be less competent to carry out his duties of advising the Minister and ascertaining the facts than if he is a part of the Ministry.

THE MARQUESS OF READING

May I ask the noble Lord one question on this aspect? I follow him in his point, hut would it not be equally satisfactory in practice, and more reassuring to the public at large, if the inspectors, instead of being a part of the machinery of the Department, were informed at the inquiry by evidence given on behalf of the Department what the policy was?

LORD SILKIN

With great respect and humility, I think that the noble and learned Marquess is rather confusing the issue. I think that what he says would be right if the inspector had to make a decision; but he does not. It is not his job to make a decision; his job is only to inform the Minister of the facts.

THE MARQUESS OF READING

If he has to make no decision, he does not need to know what the policy is. He has to find on the facts before him.

LORD SILKIN

I thought I was explaining that. I was trying to show, by illustration, that if that is the policy, then it is important that, knowing that policy, the inspecor should go down and I inspect the area; should see the alleged green belt and satisfy himself that it is still there; that it has not largely disappeared; that it is worth preserving, and so on. If that is so, as I say, I see no particular virtue in having inspectors divorced from the Department on whose behalf they are carrying out inquiries. Indeed, it would be a tremendous administrative inconvenience.

I might even go further, and say that in the case of a Department carrying out 5,000 or 6,000 inquiries a year all over the country, it would make administration impossible, if they were not in constant touch with the inspectors. I think that the Government have accepted that, and I believe that they are right. But in their desire to save the face of the Committee, or in their generally laudable desire to compromise, I think that they have gone too far. They accept that the inspectors should be in the service of the Ministry, employees of the Ministry; hut they are prepared to agree, not that they should be appointed by the Lord Chancellor but that the Lord Chancellor should approve their appointment. That seems to me to be making the worst of all worlds. It is at least arguable that they should be in the Department of the Lord Chancellor. That is the view of the Committee. Or let them remain in the Department of the Ministry of Housing and Local Government. But to ask the Lord Chancellor to advise, to be consulted, on their appointment, strikes me as being completely meaningless.

How is he to carry out that obligation? Is the Lord Chancellor to interview every potential inspector? I do not know whether the noble and learned Viscount realises that inspectors are not born: they usually evolve from other positions in the Ministry. Very often they are promoted from one job to another, until, in due course, they become inspectors. Is the noble and learned Viscount going to be consulted about every person in the Ministry of Housing and Local Government who is to be promoted to the position of inspector? I just do not understand how that duty is going to be carried out, or can be carried out.

Moreover, when the noble and learned Viscount has been consulted, does any Member of your Lordships' House really believe that the personnel of the inspectorate will be in the slightest degree different from what it would have been if the Minister had appointed them without consulting the Lord Chancellor? On what basis is the noble and learned Viscount to say he disapproves of one individual here and there for appointment as inspector? They will be exactly the same people. It will be creating only a facade, a sham. It will be pretending to the public that these inspectors are independent when in fact they are no more independent as a result of their appointment having been approved by the noble and learned Viscount than they otherwise would have been. In my view it is giving them a false status, and I entirely disapprove of any facade, especially when it does no good.

LORD WOLVERTON

My Lords, may I interrupt the noble Lord for a moment to ask whether he has any idea of the number of inspectors with whom we are dealing? Is it one dozen, two dozen or many more? It would be interesting for the House to know.

LORD SILKIN

My Lords, I will leave the noble Lord to make a little calculation for himself. There are between 5,000 and 6,000 inquiries a year. I do not know that inspectors are able to deal with more than one inquiry a day. Inquiries generally last more than one day so that the number of inspectors involved is quite substantial and would run into hundreds rather than tens. The short answer is that I do not know how many inspectors there are.

On the question of publishing inspectors' reports, I do not wish to exaggerate the importance of my reservations or to put them in the forefront of this Report—I was going to say "this magnificent Report" but perhaps modesty should prevent my saying that. I believe it is a good Report, and I can say that all the more because I was ill when the final touches were put upon it. I had nothing to do with the final wording of the Report except for one paragraph which my noble friend quoted with approval, and, of course, the reservations. So while I do not want to exaggerate the question of publishing inspectors' reports, I feel that the public should be satisfied that the arguments presented at the inquiry, and the facts brought out, have been appreciated by the inspector and properly presented to the Minister. I think it would be wrong if that were not so. I have seen hundreds of decision letters and those letters set out quite fully the case of both sides, so that the appellant is fully aware of points that have been brought to the notice of the Minister. There is no secrecy in the process by which the Minister makes up his mind. It is the recommendation of the inspector which is not stated.

The Report proposes that it should be open to anybody who feels that the facts as presented to the Minister are inaccurate or unfairly weighted against an appellant, to have an opportunity of making representations on those grounds. Although that would, of course, considerably lengthen the procedure, I should have no objection to that. It is the publication of the recommendation by the inspector to which I strongly object. The whole thing turns on one's conception of the function of the inspector. If his function is to ascertain the facts, to find out. everything he can about the case and present those facts to the Minister, then his recommendation is irrelevant and is merely one stage in the process of the Minister making up his mind.

I can assure noble Lords that the Minister gets a great deal of advice from other people in the Department as well, and sometimes from other Departments. There is a reference to that in the Report. The criticism made is not that he should get this advice but that it should not be known to the appellant that such advice has been given. I agree with that; hut the point I am making is that the inspector's recommendation is one stage only and only one piece of the advice which the Minister gets in the course of making up his mind. By the time a case comes up to the Minister—and not all of them de—he has possibly had advice from the Permanent Under-Secretary of the Department, from the head of the department dealing with those matters and front all kinds of people. I believe it would be wrong to make it obligatory to publish all the advice received by the Minister in the process of making up his mind. It would be embarrassing. It would cramp the inspector's style and also embarrass the Minister; and it would be no comfort to the appellant.

Suppose the recommendation of the inspector was in conflict with the decision of the Minister. That would be no ground for reversing the Minister's decision. Would it really be any satisfaction to the appellant if he knew that the inspector hid recommended one course and the Minister had decided on another? It is true that the Minister would give his reasons, but then he already does so; and I can assure your Lordships that the reasons given are, and always have been, given quite fully. One may not always be happy about the decision, but at least one always knows from the decision letter why the decision has been made. Would it give an unsuccessful appellant any great satisfaction if he knew that the inspector had disagreed with the decision of the Minister? If, on the other hand, the recommendation of the inspector is the same as the decision of the Minister, then it is irrelevant whether it is published or not. I do not suppose any appellant would make any difficulty if he got a decision in his favour; therefore this would operate only when the decision is against a person, and I submit that the nature of the inspector's recommendation is then only of academic interest.

It was for those reasons, and because I felt that my most excellent colleagues on the Committee were misconceiving the situation, that I felt it necessary to reserve myself on those two points; but they are only two out of ninety-one and I have agreed on the other eighty-nine points, with greater or less enthusiasm. I felt that I ought to put my own position as strongly as I could, and I hope that Her Majesty's Government will take these views very carefully into consideration, as I know the noble and learned Viscount will, before they finally make up their minds on these two points. Apart from that, I am exceedingly gratified by the excellent response which the Report has received both in the other place and in this House, and I should like to congratulate the Government on the prompt action they have taken—unlike that in many other cases which I could quote, but which, in this harmonious atmosphere, I do not propose to quote, when they have allowed Reports to remain on the shelf for a great number of years.

5.31 p.m.

LORD ST. OSWALD

My Lords. I should like to describe, in a few words, the excitement with which heard the revelations—revelations to me—of the noble and learned Lord, Lord Denning, in his maiden speech, regarding pensions appeals tribunals in respect of disabled ex-Service men. I hope that it is not unparliamentary to feel excitement, always provided that it is properly restrained, but I have the most personal and poignant experiences of such cases, in playing the part of the appellant's friend. All these cases occurred within the last few years and certainly since 1947. In each case I was informed, officially and in writing, that the onus rested upon the soldier to prove the connection between his disability and war service, and the hearing was conducted entirely on that basis. That seems to me to indicate a somewhat terrible and even shameful failure, at some point, properly to instruct the tribunal.

I have a particular case in the front of my mind: that of a neighbour of mine in Yorkshire, suffering from the dreadful and still incurable disease of disseminated sclerosis. His story is, I think, worthy of the telling. He was a despatch rider in the war, riding continually for nearly a year over extremely rough country, and frequently while feeling ill. Being, a good soldier, he thought his business was not to go sick but to carry on, and as a result he had no medical record to show to the pensions tribunal when, many years later, he made his claim. His claim was rejected and so, later on, in my presence, was his appeal. That is the sort of case. I believe by no means standing alone, in which the good soldier has been penalised, whereas the bad soldier who had continually run alone to the medical officer would have benefited. I think your Lordships will all agree with me that this is entirely wrong

I have spoken on this matter before, once in your Lordships' House and several times outside. I have spoken on each occasion from a position of weakness and ignorance. The noble and learned Lord, Lord Denning, spoke from a position of strength and knowledge, and I should like to think that some of that strength and knowledge had been imparted to me, and that I shall now be able to put it to good effect. I feel that it hardly becomes me to congratulate him on his maiden speech, having made my own so recently; but, with that experience still vividly in mind, perhaps I may be allowed to express my envy and admiration of his tour de force this afternoon.

5.34 p.m.

THE LORD CHANCELLOR (VISCOUNT KILMUIR)

My Lords. I hope your Lordships will not take it amiss if follow my noble friend Lord St. Oswald in making my first point my personal congratulations to my noble and learned friend Lord Denning on the admirable speech which the House heard this afternoon. As I am sure all your Lordships know, and as I know so well, Lord Denning has one of the most brilliant and penetrating minds in the law to-day: and I hope, as has already been said, that we shall have the advantage of that brilliant mind illuminating our problems on many future occasions.

I am sure that we all are grateful to the noble Marquess, Lord Reading, for introducing this debate, and not the least because there is no one more fit to do it. As the noble Lord, Lord Rea, reminded us, some ten years ago the noble Marquess, Lord Reading. introduced the Preservation of the Rights of the Subject Bill, and three years later he spoke in support of a similar Bill introduced by the noble Viscount, Lord Samuel. We have seen to-day that after these years of office he is just as ready to make a forceful contribution in debate whenever the rights of the citizen seem to be imperilled by particular proposals or the impact of various procedures.

This debate is very welcome to Her Majesty's Government. On behalf of the Government I have taken note of the welcome given in all parts of the House to this Report and to the Government's action. It was striking, just as it was striking to hear my right honourable and learned friend the Attorney General, in winding up a similar debate in another place, describe that debate as "very remarkable and astonishing ". And it is indeed a great thing and a clearly-shown fact that in another place and this House, and indeed throughout the country, the proposals of this distinguished Committee have received a remarkable consensus of welcome. I venture to think that it reflects the enduring responsibility of Parliament for the liberty of the subject and the rule of law, which we all hope will never be dimmed.

Though it has been done before, I should like to pay my tribute to the members of the Franks Committee. After all. I appointed the Committee, and therefore I have a special reason for gratitude for what they have done. I think I was extremely lucky to get Sir Oliver Franks as Chairman of the Committee. And I should like especially to express my own personal gratitude, as well as that of the Government, to the noble Lords from this House, Lord Linlithgow, Lord Balfour of Burleigh and Lord Silkin—who told me he had to go to keep a very pressing appointment—for the contributions that they have made. I think I estimate correctly the mood of your Lordships that on this occasion, at any rate, your Lordships would allow the Government to take a little credit, a modest credit, for the speed with which they have considered the Report and the fact that we have, as your Lordships have heard, adopted seventy-one recommendations, either completely or broadly; eight more to a lesser or minor degree; and reserved twelve (in whole or in part) for further consideration; and not accepted four.

I should like at this moment to answer one of the points which the noble Lord, Lord Lucas of Chilworth, was good enough to ask me, because I think it reflects on what the acceptance means. The noble Lord was concerned because we had accepted the recommendation that the legal chairmen of tribunals should be appointed by the Lord Chancellor, and he was worried by the words" in general. "May I give him the two examples where I do not desire the right? The first is in the case of a tribunal which has extremely important administrative functions—that is, the Traffic Commissioners. The noble Lord knows better than anyone else in this House that, apart from the judicial work they do, in times of emergency (into which I am not going because the noble Lord knows them so well) their administrative functions are of tremendous importance; and I feel that the Minister of 'Transport ought, on balance, to have the appointment.

The only other example that comes into my mind is that of the local valuation courts, which, as the noble Lord will remember, are appointed by local authorities and not by the Minister. Therefore, they are not within the mischief which I think the noble Lord had in mind. I want to assure him that the word "general" is not used in order to provide an alibi, but to cover cases such as those. I cannot think of any more at the moment. Those are two that I considered when making up my mind on this point.

LORD LUCAS OF CHILWORTH

I am grateful to the noble and learned Viscount.

THE LORD CHANCELLOR

I thank the noble Lord. I would now just take another point made by the noble Lord. I think it would be convenient if I dealt with it at this moment. He raised a question with regard to inquiries set up by the Minister of Power. I should like to draw his attention to paragraph 242 of the Report. From that he will see that the Committee consider that the broad principles are applicable to procedures not specifically mentioned in the Report but within the terms of reference. Therefore noble Lords should not think that because procedures are not mentioned they are necessarily outside the spirit of Franks. The noble Lord will have noted that my noble friend the Minister of Power came in to hear that. I can assure the noble Lord that we will discuss together specifically the points which he raised. I do not want the noble Lord, Lord Lucas of Chilworth, to think that I am not going to deal with his other points. I shall deal with them in the general course of argument, but those were specific points which I did not want to miss.

The noble Lord. Lord Rea, who also was kind enough to intimate to me that he was obliged to leave the Chamber, mentioned wider points outside the terms of reference of the Committee. He mentioned the broad question of subsidiary legislation. On that, I would remind him that the Government are under pledge to get rid of the Defence Regulations in this Parliament. We have already reduced them, since we came into office, from 215 to seventeen substantive Regulations, and I have given the House an undertaking that it certainly will not be my fault if the remainder are not disposed of by the end of this Parliament. Then Lord Rea raised a very interesting point—I think your Lordships will agree it: is one that is too extensive to cover as a tangent from this debate—and that was the oft-mooted question of whether subsidiary legislation should be amendable or not. I will again consider that; the proposal that it should be amendable has a weighty advocate in Lord Rea. But do not think I can deal with that matter now, because I am very anxious to deal with the specific points coming within the Report.

Lord Silkin raised a subject to which the Committee briefly draw attention, and that is the question of compensation. I realise the importance of that matter, and I should like him to know that the point raised by the Committee and by him is very much in the minds of the Government, though it is a point of great complexity and difficulty. The noble Marquess, Lord Reading, raised a slightly more limited question as to whether I had suggested too narrow terms of reference to the Committee. His point—if I may so put it—was mainly the Crichel. Down point. It is important to realise that Crichel Down was, as indeed the noble Marquess pointed out, outside any ordinary line of procedure. And it must always be an instrument of a Minister that if some special point arises which seems to show some injustice he can appoint a special ad hoc inquiry, as was done by my friend in that case.

Whether there should be a more regular procedure I am not at all convinced, because those of us who have been in Parliament a long time—some of us have been in Parliament a relatively long time and others a very long time—know that these occasions do arise and the safety valve given by an inquiry to consider a particular point is important not only for the Government of the day but for the general confidence of the public. I think that my noble friend Lord Reading will agree that the terms of reference I gave to the Committee certainly allowed plenty of scope for both thought and action. I hope he will take that as some mitigation of the fact that I only confined them, as he put it, to Herculean labours and not to the greater labours of entirely remaking the world.

I think your Lordships have entirely accepted the fact that the basic principles on which the Committee acted—namely, openness, fairness and impartiality—are all of the utmost importance in the minds of everyone in the country, and these they describe as the general and closely-linked characteristics which should mark special procedures. The noble Lord, Lord Chorley, was anxious to point out that he was praising with very faint damns and not damning with faint praise. But he did make some remarks about platitudes at the beginning of the Report. I say to Lord Chorley, in the friendliest approach, that "platitude" is only another word for "truism"; and the really terrifying thing about truisms is that they are true. And it is the need for openness, for fairness and for impartiality which I think is in the minds of people of all Parties to a greater extent than I have ever seen crystallised on any issue of this sort.

I was very interested to hear Lord Chorley's analysis, but I think it is fair to remember that the Committee themselves point out that although these are essential characteristics of their subject matter, that is not to say that they must be present in the same way and to the same extent in all its parts. That is a point we have to consider—indeed we must consider it as the first point in our examination.

I am glad that the Committee, the noble and learned Lord, Lord Denning, to-day, and indeed I think everyone, have said that these special tribunals and procedures are necessary. The Committee regard both as essential to our society. They consider that the tendency for issues arising from legislative schemes to be referred to special tribunals is likely to grow, rather than to diminish; and further, that tribunals have certain characteristics which give them advantages over the courts—namely, cheapness, accessibility, freedom from technicalities, expedition and expert knowledge of their particular subject. As has been pointed out. I think, with a vast majority of opinion in its favour, tribunals should be regarded as machinery provided by Parliament for adjudication, not as part of the machinery of administration, as is stated in paragraph 40. I do not want to go into this aspect at too great length, but the noble and learned Lord, Lord Denning, and the noble Lord, Lord Chorley, know that, by reason of my taking that view, I have tried, being especially in touch with young lawyers, to make them realise the importance of seeing that these tribunals are imbued with the spirit of the law and of giving the highest standards of the law to their service, whether it be as advocate or as chairman.

I want to direct your Lordships' attention to only one other point, which has not been emphasised, although it is of great importance. The Government of a country are responsible for the general success of their administrative procedures and they have to take all the aspects into account. There is one matter which I ask your Lordships to remember. It is probably true to say that all the ninety-five recommendations of the Committee extended the rights of citizens, but imposed some additional burden on the administration of the country. We as a Government have to face this point. One Ministry has some 6,000 appeals to deal with; and, similarly, there are some 50,000 adjudications annually under the National Insurance Act. That is a most formidable administrative problem.

Magna Carta says—and I have always agreed with it: to none shall we deny, to none shall we delay, justice; and if you delay justice too long, it becomes a denial. I only want to put this point to your Lordships, because we have to consider it fully. The Committee themselves faced the fact that some at least of their recommendations would lead to increased delay in process of administration; and in paragraph 353 they say this: We do not claim that the effect of our recommendations taken together will be to reduce the time taken by the entire process. We are indeed doubtful whether any recommendations within the scope of our inquiry could produce any saving of time. The Committee also recognise that there is at the moment public criticism of the long time taken. We must face up to that and try to find a synthesis between good procedure and avoidance of delay. But it is a point which I think it is fair I should put to your Lordships, because it is of tremendous importance, especially to the smaller people who are involved in these various matters that affect their land. We have to try here, as always, to strike a balance between the needs of the community and the needs of the individual.

Now I would turn to one or two specific points. The Government agree with the Committee's thesis that there should be a statutory body set up to keep the constitution and working of tribunals under continuous review; as the noble Marquess, Lord Reading, said, to act primarily as a watchdog. We think it would be better to have a single Council appointed jointly by myself and the Secretary of State for Scotland, instead of two Councils, one for England and Wales and one for Scotland. But I hasten to add this, in ease any of my countrymen think I have forgotten my native land: that I think there should be one Council with a separate panel for matters of special concern to Scotland, because many tribunals—for example, the National Insurance tribunals—are common to both England and Scotland, and it would be a mistake to have two separate Councils. I believe that Scotland will be better served by representation on one Council, for Scottish members will thereby be able to keep in touch with the general development. Apart from general oversight, the Government intend the Council to play an important advisory function in connection with the membership and procedure of tribunals; and, of course, the Government would take their advice on proposals to set up new tribunals, amalgamate existing tribunals, alter rules of procedure and the like. The Government intend to introduce legislation as soon as possible to set up the Council, because they intend and desire to refer to the Council, when it is set up, some of the recommendations of the Franks Committee for further examination.

May I next say a word or two about the chairmen and members of tribunals. I agree that the composition of tribunals is a matter of cardinal importance; and I agree that no rules of procedure or rights of appeal will mitigate a lack of judicial quality and general good sense and competence in tribunal membership. The Government fully recognise the force of the criticism which has been made, particularly by the noble Marquess, Lord Reading, that tribunal members should be truly independent. The Franks Committee made it clear, as I think has been pointed out in the debate to-day, that they had had no evidence that any influence is, in fact, exerted on members by Government Departments. Nevertheless, they were anxious that the independence should be apparent, and they recommended that the chairmen should be appointed by the Lord Chancellor or, in Scotland, by the Lord President or Lord Advocate; and that members should be appointed by the proposed Council. The Government sympathise with the Committee's objectives, and they agree that in general the Lord Chancellor, or, in Scotland, the Lord President, ought to appoint the chairmen. I have told the noble Lord, Lord Lucas of Chilworth, of the tribunals which will be exceptions to that principle. But the Government also accept that the chairman should usually have legal qualifications, although they do not want to be taken (and I am sure the House will be with us in this) as intending to dismiss good lay chairmen of existing tribunals, or never to appoint lay chairmen to any tribunals. Judicial qualities are not the exclusive preserve of the lawyer, although we hope that we learn something in the course of our experience.

On the other point, after deep consideration the Government have reached the conclusion that they cannot accept the appointment by the Council of members of tribunals, and the main reason for that view is the accountability to Parliament. I should like to develop that point, because I know that the noble Lord, Lord Lucas of Chilworth, was rather worried about it. The kernel of accountability is that somebody can be questioned in Parliament as to whether he has appointed the proper person. By the moving of a Resolution in either House, I can be questioned as to whether my appointments of judges are right, or whether my appointments of magistrates are right. The kernel of Parliamentary responsibility is that there is someone who is accountable. On the other side, the noble Lord, Lord Lucas of Chilworth, may well make the point to me that, although a procedure can be evolved out of our Constitution, there is a constitutional convention very seldom to use accountability in judicial offices. Similarly, there has been a tendency in a constitutional evolution for Ministers to say: "That is the responsibility of someone, and I will not answer questions in the House." For example, there are, as the noble Lord knows, the day-to-day matters in running a nationalised industry. But it is a doubtful tendency: it is one that has to be watched, because Parliamentary responsibility is the essence of our Constitution.

I do not know whether the noble Lord, Lord Lucas of Chilworth, had in mind that here we are dealing with 18,000 to 19,000 members, spread over the whole country in an infinite variety of places. Although my instincts were all in favour of independence—I think the noble Lord will agree so far as I am personally concerned—I felt that to take all that outside the accountability of the Minister would be a dangerous matter. I hope the noble Lord will do me the honour, which he has often done before, of considering whether there is not more in that point than appears at first sight.

What we propose—and again I am not sure that this was entirely clear—is that before appointing members, Ministers should consult the Council, so that the Council will be able to see whether the panels from which members were taken are on the right lines and broadly representative of people having the proper knowledge and qualities. Of course, co-ordination of policy with regard to appointments by different Ministers would be obtained through the Council. I know that is a very difficult point, but I wanted noble Lords to appreciate that this was not a bureaucratic reaction but a Parliamentary reaction. I hope the noble Lord will consider that point of view.

I do not think I need say much generally about the procedure before tribunals, because we accept the general tenor of the recommendations in Chapters 6, 7 and 8, and I wish only to deal with one or two points. We accept, for example, that a document has to be given to the appellant setting out the main points of the case he has to meet.

LORD LUCAS OF CHILWORTH

Would the noble and learned Viscount forgive me? Has he finished on the question of appointments?

THE LORD CHANCELLOR

Would the noble Lord tell me what he has in mind?

LORD LUCAS OF CHILWORTH

The noble and learned Viscount has dealt with the queries raised about the appointment of members of tribunals. I wish also to question him, if he will permit me, upon the appointment of the inspectors.

THE LORD CHANCELLOR

Certainly. I am grateful to the noble Lord. I am dividing my remarks into tribunals and procedure on acquisition of land; and the appointment of inspectors clearly arises on that. I am grateful to the noble Lord for telling me—of course, I was not trying to avoid that point. We accept that the appellant should know the case he has to meet, the recommendations on attendance, on ability to question witnesses and on the decision of the tribunal to be in writing and the rights of appeal. We accept all that. On the question of legal representation, the Government propose to go further than the Franks Committee. We propose to abolish all restrictions on legal representation before tribunals, subject only to the further consideration of one minor point where the Franks Committee are against legal representation. We should like to look at that matter a little further, because it relates to the local service committees under the National Health Service which do not adjudicate finally. Apart from that small point, we want to remove restrictions altogether.

On the question of legal aid the noble Marquess. Lord Reading, and the noble Lord, Lord Lucas of Chilworth, both appealed to me. This is a difficult matter, when I have so many appeals to me to extend legal aid—and the queue is a formidable one. My noble friend mentioned the existing arrangements for legal aid and advice, with which I myself am very concerned, and legal aid in magistrates' courts in matrimonial cases. I do not think that, on refection, your Lordships will ask me to go further than that. I should think your Lordships will ask me to do two things: first, get rid of this queue—and, if I may say so without offence, the Government have got rid of quite a lot of queues—and try to cover all these admirable activities as quickly as I can. I will do my best, but I cannot, on a matter of finance, go further than that.

On costs we are prepared, as your Lordships know, that the out-of-pocket costs for travelling expenses of appellants and their witnesses, and compensation for loss of time, should be rationalised. We cannot undertake that all costs in every case should be paid. There is a big problem here, and I am sure the noble Marquess, Lord Reading, would agree that if we did that completely we might encourage over-legalisation in cases where it is not helpful. I had to introduce the Beveridge proposals on Workmen's Compensation in another place years ago, and the number of appeals I received from my trade union colleagues in the House to beware of over-legalisation and of frightening people by an over-rigid procedure was extraordinary. That is one of the things we must watch.

The noble Lord, Lord Chorley. asked me whether there should be an appeal from the National Insurance and Industrial Injuries Commissioners and the National Assistance Appeals Tribunal. The Committee are indeed, as he said, against it, and I have noted not only what he said but what the right honourable gentleman Mr. James Griffiths, the Deputy Leader of the Labour Party, said in winding up the debate. I understood that it has always been believed, not quite on the grounds I have mentioned but on the general ground that it is in the public interest to make an end of litigation, that the General Council of the Trades Union Congress have been against a further appeal up to now; and I should like to reconsider that point in view of what Mr. Griffiths and Lord Chorley have said.

May if just say this out of order: that the other two points which the noble Lord, Lord Chorley, raised, as to giving persons indirectly interested the right of appeal, and giving further information, are, I think, two of the most difficult points which we can face. As I have said, we have got 6,000 appeals already. To increase that enormously would add greatly to the delays that exist. On the other point, I notice that the Franks Committee said something about citizens advice bureaux and the like. I want the noble Lord to know that I am ready to consider everything on that matter. I have considered it since he raised it but I have not had any brainwave on it yet. As he said, in most cases somebody who is worried about what may happen will be on the qui vive.

On appeals generally, I do not think that there is any real difference and I think Lord Chorley was almost a lone voice in saying that there was more to be said for the Conseil d'état than the Committee thought. I do not think it would be profitable, 'because the Corn-mince turned it down. They have also said that a good deal of it was outside the terms of reference, and I think myself that if we can put into operation what the Committee have suggested, the urgency (of which I think Professor Hamson and others have spoken) of the Conseil d'état largely disappears. We are dealing with the facts of the problem if in a different way.

The noble Lord, Lord Wise, asked me about the agricultural aspect, and he recalled what my noble friend Lord St. Aldwyn said in the debate on the Address: that we believe that the broad conclusions of the Franks Committee are in accord with public opinion and that we agree that the agricultural executive committees should not have both executive and judicial functions, although we do not imply any criticism of the way they have carried out their dual responsibilities. As my noble friend said, the Government propose to repeal the penal provisions of Part II of the 1947 Act, so I do not think one need spend much time on how the Franks recommendations would have affected them if they remained.

With regard to the question of the security of tenure provisions, on the assumption that they are amended to give effect to the changes agreed between the Country Landowners' Association and the National Farmers' Union, we think that in these circumstances the county agricultural executive committees should no longer exercise a judicial function in relation to notice to quit. We agree with Lord Wise that we should not have a new tribunal but that this should go straight to the Agricultural Land Tribunal, from whom there would be an appeal to the High Court. I appoint the Agricultural Land Tribunals, and, whatever one of them may have done in a particular case, I do not think that anyone has attacked their independence.

My Lords, I am sorry to have taken so long, but your Lordships have raised the points and I feel that they are not only deserving of an answer but they are important points indeed. I want just to say a few words about the other side, the administrative procedures. As I have said, we recognise that the powers of a modern State, although exercised for the good of the community and for necessary purposes, must involve a conflict between the interests of the State and those of the individual citizen. We entirely accept the broad objectives of the Franks proposals, to give to citizens a greater sense of fair hearing and to bring the process by which the final decision is reached as far as possible into the open and establish in this administrative field the rule of law. I think it was the noble Marquess, Lord Reading, who said earlier that he thought that it would take legislation to deal with most of the proposals. I very much hope that that will not be so.

THE MARQUESS OF READING

I do not think I said "most". I said it would be necessary for some.

THE LORD CHANCELLOR

I apologise to my noble friend if I have put the emphasis wrong. On this side I think a great deal can be done by administrative action, and I want to see that administrative action coming into operation in January. I do not want us to delay; I want us to get on with it and improve the procedures as soon as we possibly can. Sometimes we shall have to be tentative sometimes we shall find a better and more improved procedure in a short time. But let us get on with it at once; and I am sure I can say to my colleagues in the Government that I have your Lordships behind me in that. As I say, we will make a start in January if it can possibly be done.

These are—if I may summarise them in order to save your Lordships' time—the ones we hope to get on with at once: recommendation 67, which deals with making available particulars of the case before the inquiry; recommendation 71, where the Ministry or other authority is to explain proposals fully at the inquiry and support them by all evidence; recommendation 75, which requires officials of the Department to give evidence at the inquiry in certain circumstances; recommendations 80 and 82, providing for the publication of inspectors' reports; recommendation 84, requiring Minister's letter of decision to set out full findings on inferences of fact and reasons for decision; and recommendation 92, requiring local planning authorities to discuss applications with the applicants. All these, I think, can be put into full operation. I am glad to say that some of them are already the practice, though they may not be quite acceptable in the form of the recommendation by the Franks Committee.

May I say one or two more words about the specific proposals? I agree that it is an elementary principle of justice that an objector should know in advance what case he has to meet, and I am advised by my colleagues to say that the Ministers concerned will in future require authorities to see that their case is properly set out, before an inquiry opens. In due course the Government intend to issue rules of procedure to make it obligatory. There is one difficulty which has given me a good deal of anxiety, and that is the Franks Committee's suggestion about a statement of policy. The difficulty of issuing a statement of policy in relation to a particular fact is that the objector will then think that his case is prejudged and will come to the inquiry without much hope. The way I prefer to deal with it is for the Minister to make available a collection of his policy decisions in general matters. May I take, for example, the question of a petrol station? He may say that the limits have been reached in regard to roads where new petrol stations might be erected, or something like that. But to try to say, "This is my policy in respect of a specific application ", is, I think, very difficult and might do exactly the opposite of what we want to do. Therefore we want to approach this matter cautiously.

Now I conic to a much more vexed question—that of inspectors. I fully realise the reasons why the Franks Committee and my noble friend Lord Reading would like them transferred to me. But I ask your Lordships to look at this question a little more closely, because the practical considerations persuaded me tha the case was against transfer. I consider the key to the problem is expressly recognised by the Franks Committee in paragraph 303: that the inspectors must be kept closely in touch with the several Departments to whose Ministers they report. As I have said, the Ministry of Housing and Local Government have some 6,000 appeals and some 103 inspectors. They will prevent delay in those appeals only if the inspectors are, as the Franks Committee recommended and approved, kept in close touch with the Departments. As has already been said, the Committee had no complaint about the way in which they did their work.

We then come to the question of what is the proper safeguard. One point of view is that there is no safeguard unless the appointments are entirely given to me. But if they are entirely given to me and then have to work cheek by jowl with the other people in the Departments, that does not seem to be a substantial difference from the present situation. Once you say it is necessary that they should work closely with the Departments, they must work with the Departments. I am sorry that the noble Lord. Lord Silkin, did not agree with us, but we thought that it would be a safeguard if I approved of every appointment—if every appointment was brought to me and nobody could be dismissed unless I consented.

This is an interesting matter. I have almost the same number of persons to deal with in regard to justices of the peace—somewhere between 18,000 and 20,000 people. I go through the biography of everyone who is put up by an advisory committee for appointment as a justice of the peace, and any point that arises is of course checked by my officers. I do not see everyone who is appointed a justice of the peace—I cannot but I do see all and every relevant fact about him. I should have thought that the fact that I see it, and that my knowledge is supplemented as necessary, is quite helpful, and that most people would think it was better than merely having an appointment by a local advisory committee without its being checked by me. I think that is the general view. I am only saying "by me" because I happen to be Lord Chancellor—

LORD LUCAS OF CHILWORTH

Would the noble and learned Viscount help me to this extent? I appreciate his difficulty. To appoint 103 inspectors is not nearly so big a job as appointing 11,000 justices of the peace. But does the noble and learned Viscount, on behalf of Her Majesty's Government, accept this principle which is clearly laid down in the Franks Report—I am reading the last four lines of paragraph 40: Although the relevant statutes do not in all cases expressly enact that tribunals are to consist entirely of persons outside the Government service, the use of the term `tribunal' in legislation undoubtedly bears this connotation, and the intention of Parliament to provide for the independence of tribunals is clear and unmistakable.

THE LORD CHANCELLOR

Certainly. I do not want to make any false point with the noble Lord. I entirely accept that with regard to tribunals. But with regard to inspectors the position is, of course, different.

LORD LUCAS OF CHILWORTH

That is where the noble and learned Viscount and I fundamentally disagree. I say that, right the way through, the Franks Report treats an inspector as a tribunal. That is my reading of the Franks Report, that an inspector should be independent.

THE LORD CHANCELLOR

I am afraid the noble Lord cannot have it quite right, because whether the inspectors were appointed by the Minister or by me they would still be Government servants, paid as civil servants. They would still have to come through the Civil Service Commission.

LORD LUCAS OF CHILWORTH

Yes, but they would not be the servants of the Minister, of the Department which they are going to work in. In other words, the inspectors appointed by the Minister of Power would not be the servants of the Minister of Power, but would be independent persons appointed with the approval of the Lord Chancellor.

THE LORD CHANCELLOR

He is going to be different from every other servant of the Ministry of Power, in that the Minister of Power can, of course, appoint or dismiss any other servant. He cannot appoint or dismiss these people without my consent. Therefore, I am taking up the intermediate position between the noble Lord, Lord Lucas of Chilworth, and the noble Lord. Lord Silkin, who would have them appointed by the Minister simpliciter. I would prefer that there should be this safeguard, because these representations can be made to me and no one, I think, would believe that the Lord Chancellor, who appoints so many of the Judiciary, would ever allow anybody to be victimised.

LORD LUCAS OF CHILWORTH

I feel that this is not the time to pursue' the point, as the hour is getting late, but may I say that the public will never accept wholeheartedly the Franks Report unless the principle is accepted as I have enunciated it. The halfway is no good. There is no confidence in this. As the head of the Lord Chancellor's own Department has said, there is widespread misapprehension, and it will not be cleared up until the Government unreservedly accept that principle on inspectors.

THE LORD CHANCELLOR

My Lords, I am glad that the noble Lord, Lord Lucas of Chilworth spoke of "widespread misapprehension ". I have tried to dispel some of it, and I want to put this additional argument. Up to now we have been dealing with the position of the inspectors without publication of their reports—which I feel is very important. We are now accepting the recommendations on publication of reports and on the expansion of the Minister's decision to include recommendations. So everyone will now know the facts and what the inspector has said. I have always thought that the answer to the point made by the noble Lord, Lord Silkin, was that if the Minister disagrees with the inspector he does so because he thinks the inspector is wrong or because policy demands it; and the Minister can justify his decision to this House or to another place. We have all had to do that in our time. Parliament then knows exactly what the inspector has said. I would ask the noble Lord to consider that point.

The noble Marquess, Lord Reading, thought we had "cooled down" on the question of recommendations. May I put the position, as I wish to make it quite clear? In the general run of cases, except security cases and in regard to Service Departments, the full report of the inspector will be published. In some cases, however, the report will not include the recommendations—either because the inspector does not consider it appropriate to make specific recommendations or because the Minister asks not for recommendations but rather for a factual report of the inquiry. But where recommendations are made in the report they will be published as part of the report. I hope that will allay the fear of my noble friend. We have considered very carefully the question of publication and have come down in favour. No amendment of the law is needed, and the change will be brought about as soon as possible. Here again we shall have to feel our way. I hope that when we have tried one method we may find it possible to make improvements, and I am not going to tie myself to the letter to-night; but I am tying myself quite strongly to the principle of publication and to making inspectors' reports available. I hope that will take place early in the new year. I do not think that at this stage I need trouble your Lordships with the details. I have explained that where Departments are concerned with, say, acquiring land, officials will give evidence. In other cases officials will give evidence when the Department has made a statement as to its position with regard to the land.

There is only one other word I want to say with regard to costs. Long years of applying for costs and resisting applications for orders for costs have convinced me that here we are on entirely different terrain. If noble Lords feel that I am wrong I shall be grateful if they will write to me about it, but it has been suggested, and we are not prepared to agree, that, in general, costs should be awarded to successful objectors or applicants. I must point out that it might be very unfair to give costs to successful applicants and to withhold costs from unsuccessful objectors—this on the grounds of equity and not merely meanness—because there may be a policy reason which defeats one objector and allows another in. In these circumstances I believe that it would be quite wrong to make that the test. I believe the right course would be to refer the matter to the Council to see whether we can get further guidance.

I only want to say a word on one more subject—Service Departments. I listened with great care to what was said by the noble Lord, Lord Lucas of Chilworth, and I have read over and over again what the Committee have said on this point. At the moment, Service Departments are under no statutory obligation to hold inquiries at all, but there are extra-statutory arrangements under which objections by local authorities may be heard. The Committee recommended that: save in time of emergency or threat of emergency the Service Departments should be required to adopt the same acquisition procedure as … other Government Departments"— that is, the procedure of public notice and public inquiry. Her Majesty's Government are unable to go all the way with the proposals of the Committee. Speed is vital in Service cases. I do not want to mention specific weapons, but noble Lords can well realise that the installation of new weapons is a matter which requires speed; and in this work, in a world of new and changing weapons, it is not really practicable to wait—I use the Committee's phrase—" for an emergency: that is, for war or a threat of emergency. We do not live in an age in which these are the really relevant matters.

I have gone over this aspect with my Service colleagues, and the difficulty I have found is to lay down, where real security is likely to arise and where it is likely not to exist. So the best course I could see was, first of all, to give private interests and not merely local authorities and community associations—any private interest—a statutory right to object and to be heard by an independent person. Here, in view of the fact that there cannot be the same openness (for the reason which I have given), I would make this person one appointed by me and of judicial standing and qualifications, so that people would know that, although in many cases it might be impossible to have a public inquiry, there would be an inquiry before a person of proper judicial stature and abilities. I would appoint that person in England and my friend the Secretary of State would appoint in Scotland. I want the noble Lord, Lord Lucas of Chilworth, to know that I have in mind that there will be many cases where no security question at all arises. If Chelsea Barracks is to be extended there will be no need for security arrangements; and in such a case it will be possible to have a public inquiry and to follow the usual procedure. By getting independence in qualifications I want to substitute something for that which at the moment I fear I cannot give. T wish to put that to the noble Lord.

LORD LUCAS OF CHILWORTH

My Lords, will affected people be told?

THE LORD CHANCELLOR

Yes.

LORD LUCAS OF CHILWORTH

The affected people will be notified?

THE LORD CHANCELLOR

Yes. certainly. I said that I must make clear that it is important, in the first group of cases, to undertake publication of the inspector's report. But even, in these cases the inspector's communications will be communicated to the parties, unless there are special security objections: and, of course, that will be provided for in the Act: it will be given statutory right.

LORD LUCAS OF CHILWORTH

How will they be informed of the substance of what is objected about?

THE LORD CHANCELLOR

Supposing there is some proposed appendage to a guided-missile site, they will be told that is wanted for a matter connected with the Services, and that they will be heard by Mr. So-and-So, Q.C., at a certain time. At least, that is the way I see it. I hope the noble Lord will not hold me to detail. I have tried to envisage matters as I have gone along. I apologise that it always seems to be my f ate to speak to your Lordships at great length, and your Lordships are very kind and patient with me. My only excuse is that I try very hard to answer all the points that are raised in the debate. Your Lordships will appreciate that inevitably in the last four months I have spent much time on every proposal in this great Report. I hope that your Lordships will forgive me if I conclude with one more word on the underlying principles.

My Lords, it is my faith that the State exists for man and the benefit of its citizens. I recognise that in this country public needs must on occasion surmount private rights in order to provide houses, schools, hospitals, nuclear power stations, weapon sites or "what have you." If, however, the true value of human individuality is to be maintained, then the individual must be given a fair and open opportunity of putting his objection and his case; and, further, we must put into this procedure all that we have learned in the way of justice and protection for private citizens from the great social service of the Common Law, which is followed by a third of the population of the world. If, when we have translated into reality the spirit of the Franks Report, we can then feel that we have done something to harmonise the position of the State and the individual on the threshold of this new, complicated scientific age, our time will not have been spent in vain.

6.43 p.m.

THE MARQUESS OF READING

My Lords, I think that the House will agree that this Motion would have justified itself if it had done no more than give an opportunity to the noble and learned Lord, Lord Denning, to address us for the first time. Nevertheless, I hope that it has done more. I think that it has done, as it was designed to do, this much more: it has given your Lordships an opportunity, in response to the open invitation from Her Majesty's Government, to contribute your suggestions on this very important subject, and it has given to my noble and learned friend on the Woolsack the opportunity to make, as usual, a careful, courteous and comprehensive reply to the debate. My Lords, I was almost tempted, if only for the sake of alliteration, to add to these epithets the word "convincing"; but perhaps I will substitute "cogent", because, although I realise the force of many of his observations, I am not going to admit myself entirely satisfied. Nevertheless, I am grateful to him and to the House, and I ask leave to withdraw the Motion.

Motion for Papers, by leave, withdrawn.

House adjourned at a quarter before seven o'clock.