§ 2.42 p.m.
§ Order of the Day for the Second Reading read.
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, in Commending this Bill to your Lordships. I do not think that the House will wish me to tread again the ground which was so fully covered in the most interesting debate on the Report of the Franks Committee which we had on November 27 last. Those of your Lordships who spoke in that debate were unanimous in your praise of the Report, which will indeed rank high in the constitutional history of this country, along with the Report of that Committee's predecessor, the Donoughmore Committee.
In replying to that debate I made it clear that it was the Government's intention to give effect as soon as possible to most of the recommendations made by the Franks Committee, whether by legislation, subordinate legislation, or administrative action. In two Bills which have already been introduced in another place—the Agriculture Bill and the Land Powers (Defence) Bill—the Government have taken the opportunity of dealing with certain limited aspects of the Franks Report. The Bill which is now before 585 your Lordships is the first major instalment of legislative reform on the lines recommended by the Committee.
I hope that the noble Lord, Lord Silkin, will take due note of the fact that on this occasion, as, indeed, on other occasions recently, the Government have taken much less than the seven years which I think the noble Lord regards as the normal period of gestation required to translate Reports of Committees into legislative action. I am the more glad that this is so on the present occasion because, of course, the noble Lord was himself a most valued member of the Franks Committee.
This Bill gives effect to what I think was one of the principal recommendations of the Committee—namely, that an independent statutory body should be set up to keep the constitution and working of administrative tribunals under continuous review, and to act, as the noble Marquess, Lord Reading, said in our last debate, as a sort of watchdog. The Franks Committee thought that there ought to be two such bodies: a Council for England and Wales, on the one hand, and a Council for Scotland, on the other. As I said last November, however, the Government have come to the conclusion that it would be better that there should be only one Council with a separate panel for dealing with matters of special concern to Scotland; and this, as your Lordships will see, is what is done by Clause 1 of the Bill.
Perhaps I might ask your Lordships to consider the duties of the Council, and especially that of keeping under review the tribunals which are listed in the Schedule. The functions of the Council are set out in Clause 1 (1) of the Bill. It will be required to keep under review the constitution and workings of the numerous tribunals listed in the First Schedule. We have found it necessary to proceed by way of a list because the tribunals concerned defy definition in general terms. Indeed, as your Lordships will remember, the Franks Committee found difficulty in deciding exactly what tribunals fell within its terms of reference, and excluded some, such as the Industrial Court, for purely practical reasons.
It has not been an altogether easy matter to decide which tribunals to include in the First Schedule and which to leave 586 out. What we have done is to exclude tribunals which do not take decisions but simply report or make recommendations to Ministers. These include bodies whose decisions are limited to technical matters or questions of expertise—for instance, arbitrators under the Diseases of Animals Acts; bodies whose concern is with purely professional matters, such as the local medical and dental committees under the National Health Service; tribunals such as the Wages Councils and the Industrial Court, which were excluded by the Franks Committee, who thought it undesirable to examine this one aspect of the employer-employee relationship in isolation; and, finally, the local valuation courts which are appointed by the local authorities. The tribunals that are in. eluded do. I think, cover the whole range of those set up by a Minister for the purpose of deciding disputes, first, between an individual and the State, or, second, in some cases, such as the rent tribunals, between one individual and another. As your Lordships will see, Clause 9 of the Bill will enable the Secretary of State for Scotland and myself to add to the list at any time, with the approval of Parliament.
I ought perhaps to explain why we have included within the scope of the Council on Tribunals some, though not all, of the bodies concerned with the operation of the National Health Service. Your Lordships will find that in paragraphs 10 and 31 of the First Schedule we have included Executive Councils, their Service Committees, and the National Health Service Tribunal, together with the corresponding bodies in Scotland. Broadly speaking, these bodies deal with cases where doctors, dentists, chemists or opticians are alleged to have failed to carry out their obligations under the Health Service. The Council on Tribunals will not, however, be concerned with the administrative side of the work of the Executive Councils. I should like to stress, my Lords, that before any advice which the Council on Tribunals may give in regard to the working or procedure of the bodies I have mentioned is put into effect, the professional interests concerned will be fully consulted by my right honourable friend the Minister of Health and the Secretary of State, in accordance with existing practice.
I now turn to the second main function of the Council. This is to consider 587 and report on such matters as the Secretary of State and I may refer to it from time to time in regard to tribunals, whether those mentioned in the First Schedule or not, or with regard to administrative procedures involving an inquiry or hearing. The Franks Committee, as your Lordships will remember, were concerned in the second part of their Report with administrative procedures relating to land, in particular those affecting compulsory acquisition and planning matters. I hope that your Lordships will pardon a slight excursus from the subject matter of the Bill in order to show how we have attacked that important problem.
I would remind your Lordships that in our debate last November I said that I thought a great deal could be done in this field by administrative action, and I am glad to say that much has already been done. I should like particularly to mention the circular which my right honourable friend the Minister of Housing and Local Government has recently sent to all local authorities about the new procedure he proposes to adopt in the case of the inquiries I have mentioned. This circular impresses on local authorities the need to ensure that full particulars of their case are made available to all concerned at the earliest possible stage before the inquiry takes place. Where the Minister is himself the initiating authority he will in future make a statement available before the inquiry, and a representative of his Department will be present at the inquiry to explain the Minister's proposal and to answer questions about it. In cases where a planning authority's decision to refuse an application for development is based on the advice of the Ministry of Agriculture, a representative of that Department will be available to give evidence at the inquiry if required.
After the Council on Tribunals has been set up, the Government intend to ask it to formulate the code of procedure for these inquiries which the Franks Committee recommended. There have been some important alterations in the procedure adopted after an inquiry is over, and these are set out in the circular I have mentioned. The letter informing the parties of the Minister's decision will state the inspector's findings and recommendation, and if the Minister does not accept his inspector's recommendation the letter 588 will say why. It will also be possible for those concerned to ask for, and obtain, a copy of the inspector's report. I mention these matters in some detail, my Lords, in order to show that there is no substance in the criticism that, in our concern with tribunals, administrative inquiries are being overlooked. It is also material to remember that I hope to clear out of existence by the end of this year the Defence Regulations authorising the requisition of land, because many difficulties have arisen from the power of requisition.
I ought now to mention a further important duty falling on the new Council. This will involve the scrutiny of all rules of procedure made by the rule-making authority responsible for any of the tribunals mentioned in the First Schedule. Under Clause 7 of the Bill such authority will in future have to consult the Council before making or amending any rules of this kind. This will enable the Council to see that the principles so clearly enunciated by the Franks Committee are being observed in practice. and as the Council's experience of these matters grows it will lead to a much greater measure of uniformity than exists at present as between one tribunal and another.
The next important group of recommendations of the Franks Committee dealt with by the Bill relate to the appointment and dismissal of the chairmen and members of administrative tribunals, and to these I now turn. As I said last November, the Government have accepted the recommendation that in general I, and in Scotland the Lord President of the Court of Session, should be responsible for the appointment of chairmen of tribunals and for their removal from office. When I used the qualification "in general" last November, the noble Lord, Lord Lucas of Chilworth (and may I say that the noble Lord, with his usual courtesy, has written to me saying that he is sorry he is unable to be with us to-day—and I hope he will be able to be with us when the Committee stage of this Bill comes) was rather worried about the extent to which this exception was to go. I then gave him two examples of cases in which we thought it would be inappropriate for the appointment to rest with myself. The first of these examples was that of a tribunal whose executive functions are as 589 important as its judicial functions; and I instanced the traffic commissioners. The other example I gave was the local valuation courts, which, as I have already pointed out, are not being made subject to the general oversight of the Council on Tribunals because they are set up by local authorities and not by a Minister.
Your Lordships will see that, with exceptions such as these, the effect of Clause 3 of the Bill is that in future the chairmen of the tribunals with which the Bill is concerned will be appointed by myself or by the Lord President of the Court of Session, as the case may be, or will be selected by the appropriate authority from a panel of persons so appointed. The reason why Clause 3 provides for panels from which individual chairmen can be selected is simply that many of the tribunals operating in particular fields—for example the local tribunals under the National Insurance Acts—are very numerous, and it would impose too heavy a burden on me and on my staff if I were to be responsible for individual appointments on every occasion, on every day, on which the tribunal sits. I think the fact that everyone on the appropriate panel will have been appointed after personal consideration by myself will, in practice, be amply sufficient to ensure the independence and standing of the chairman selected to preside over the tribunal in a particular case.
I am already responsible for the appointment of the chairmen of many of the tribunals listed in the First Schedule. The effect of Clause 3 is that I shall in future be responsible, either directly or through the panel system, for the chairmen of the rent tribunals, the local tribunals under the National Insurance and the Industrial Injuries Acts, the National Assistance appeal tribunals and the various local tribunals under the National Service Act, as well as for the chairmen of the many compensation appeal tribunals which are responsible for assessing compensation under the Nationalisation Acts and a host of other enactments which your Lordships will see set out in the Annex to the First Schedule. Clause 3 will come into operation on the appointed day, but under subsection (8) the chairmen of tribunals appointed even before the appointed day will in future be removable only by myself or, in the case 590 of Scottish tribunals, by the Lord President of the Court of Session.
So far as the appointment of members of tribunals is concerned, your Lordships will remember that the Government felt itself unable to give full effect to the Franks Committee's recommendation that this task should be entrusted to the Council on Tribunals. I explained in some detail in our last debate the difficulties which the Government felt about this, and although these reasons do not seem to have found general acceptance, I still think they are good ones. As I said in reply to the noble Lord, Lord Lucas, of Chilworth, we are here dealing with very large numbers of people, some 18,000 to 19,000 of them spread over the whole country and drawn from a wide variety of occupations. In a matter of this kind we regard it as most important to preserve the accountability to Parliament of the Minister responsible for the particular tribunal concerned.
Moreover, to suggest that the Council on Tribunals should undertake this task is really somewhat unreal. If it were to do so, it would itself tend to become something in the nature of a Government Department and would require a considerable staff, and would probably in any event have to rely on the help of the regional organisations of the various Departments concerned, without which it is quite impossible to obtain the necessary background knowledge of local conditions which is needed in such cases. I have the responsibility for some 19,000 magistrates, but apart from the help of my own staff I have the great help, which I gratefully acknowledge, of no fewer that 1,250 local people on various committees. After all, I am in the position of being at the head of a Government Department, although it is a small one.
I think, therefore, that the solution proposed in Clause 4 of the Bill is the right one, which is that the Council may make general recommendations to the appropriate Minister in regard to the making of appointments to membership of any of the tribunals mentioned in the First Schedule. The sort of recommendations I have in mind will be directed to ensuring that a proper balance is preserved in drawing up the panels from which members are to be selected so that they are broadly representative of people having the qualities and experience required. 591 The Minister will remain responsible to Parliament for his appointments, but I think that any risk that he will ignore recommendations made by the Council can be discounted, if only for the reason that the Council will be very ready to draw attention to any instances of this kind in its Annual Report, which is required to be laid before Parliament.
Then, my Lords, as regards the removal of members, Clause 5 ensures that in future it will not be possible for the member of a tribunal, any more than for the chairman, to be dismissed except with my consent or that of the Lord President of the Court of Session in Scotland. There are certain exceptions to this, as your Lordships will see, such as the Executive Councils of the National Health Service, the Comptroller-General of Patents, the Commissioners of Income Tax, and the Traffic Commissioners. The reason why these are excepted is that they also have important executive functions in which I have no concern, so that it would be plainly inappropriate for me to have any say in their removal from office.
May I turn now to the qualification of the chairmen of tribunals? Your Lordships will probably remember that the Franks Committee thought that chairmen of tribunals of first instance should ordinarily have legal qualifications and that all chairmen of tribunals exercising appellate functions should be lawyers. I was glad to hear my noble and learned friend Lord Denning say in our last debate that he did not think it necessary to replace all lay chairmen by lawyers, for, as he pointed out, a good layman on a tribunal is better than a had lawyer and there are not enough good lawyers to go round. For this reason the Bill does not make any general provision requiring chairmen of tribunals to be legally qualified, but Clause 6 provides for legal qualifications in the case of certain appellate bodies.
The next major recommendation of the Franks Committee to which the Bill gives effect is that there should, wherever possible, be an appeal on a point of law from a tribunal to the courts. This is dealt with by Clause 8 of the Bill. The Franks Committee thought that the detailed machinery for such appeals, whether they should be by way of case stated or by 592 way of ordinary appeal and rehearing, and so on, should be formulated by the appropriate Rule Committee. This is what the clause provides. Thus it will in future be possible to appeal on a point of law from the decisions of such bodies as the rent tribunals, the National Health Service Tribunal, the compensation appeal tribunals and, the Independent Schools Tribunal which has just been set up. There will, however, be some exceptions from this right of appeal to the courts.
May I first mention the National Insurance Commissioner and the National Assistance appeal tribunals? The Franks Committee thought there was no need for an appeal in these cases, but in our debate last November I was asked by the noble Lord, Lord Chorley, to consider this again, and this is being done. In any event, however, so far as the National Insurance Commissioner is concerned, this is a matter which it would be much better to deal with in the framework of the National Insurance legislation than in this Bill.
My Lords, there are certain other cases in which we have not provided for a right of appeal because the tribunal is concerned either with purely technical matters or with questions of fact (especially those concerning economic or medical situations on a particular day) which cannot, in our view, give rise to a point of law. As an instance of this, I should like to mention the case of the pensions appeal tribunals when dealing with assessment cases—I repeat assessment cases—as opposed to cases of entitlement to pension. In the latter case there is already a right of appeal on law.
So far as assessment cases are concerned, this is a matter to which I have given the most anxious consideration. I have spent literally hours trying to think out whether a point of law could arise, and having done so I am satisfied that it is really not possible for a point of law to emerge from a decision of the tribunal. The decision is fixing, in most cases after a clinical examination, the state of the man on that day, and I, with my ingenuity and such experience as I have, have not been able to see how a point of law could arise. I can only say that if anyone else will suggest to me how a point of lam/ could arise I shall be most pleased to consider it. I do not want to 593 provide for an appeal in a case of that kind where there is no point of law, when the further appeal to the court in these cases would only encourage false hopes which would almost inevitably be disappointed.
Your Lordships will see that subsection (5) of Clause 8 provides that no appeal is to lie beyond the Court of Appeal. This is what the Franks Committee recommended, and I believe it to be right. Clause 10 abolishes restrictions en the remedies of certiorari mandamus and thus ensures the supervision by the ordinary courts of the land of these tribunals. I had not intended to go into the detail, but of course I shall be glad to i f any noble Lord wants me to. Clause 11 will allow certain Scottish appeals to be brought to your Lordships' House, with leave either of your Lordships or of the Court of Session. Both these steps are in accordance with the Franks Committee's recommendation.
My Lords, I hope that I have not wearied you by dealing in some detail with the necessarily complicated and technical provisions of this Bill. I am, however, anxious that the House should appreciate the extent to which this Bill goes in giving effect to the very important recommendations made by the Franks Committee which have won such a wide measure of support, both in and outside Parliament. I hope that the existence of a body of high standing like the new Council on Tribunals will go far to restore public confidence in the procedure of these administrative tribunals which now have such an important part to play in our affairs.
I should not like it to go out from this House that the Government are not well aware of the value of the services performed by those who sit on these tribunals. I was very glad to hear the tribute paid to them in our last debate by the noble and learned Lord, Lord Denning, when he said that administrative tribunals are a most valuable part of modern society. At any rate, I hope that one important result of this Bill will be that the new Council will be able to see the picture as a whole and that it will, before long, bring all the tribunals with which the Bill is concerned up to the standards of the most efficient, which need fear no comparison.
594 I should like to assure your Lordships that there is no desire to water down the Franks Committee's recommendations. After all, I appointed the Committee, and after an immediate and full examination Her Majesty's Government announced in three months that there were only four out of ninety-five recommendations which we could not accept in whole or in part. I should like to say to the noble Lord. Lord Silkin, that I have seldom worked so intensively on a Report, and never have I enjoyed working on a Report more than I did on the Report produced by the Committee of which he was a member.
I therefore thought it of importance to remind your Lordships that we have not overlooked the kindred problems of inquiries. As I said earlier, we have already made important improvements in their procedure, and we propose to ask the new Council to formulate a code of procedure for them as soon as possible. The Government, like the Franks Committee, regard it as of fundamental importance that in the modern State a fair balance should be struck between the rights of the individual and the needs of the community. Where the two are in conflict, it is essential that the procedures by which the conflicts are resolved should be marked, as the Committee said, by openness, fairness and impartiality. These have for centuries been the characteristics of the Common Law, and I have little doubt that most of the tribunals with which this Bill is concerned do their best to apply them. While avoiding rigidity and technicality of procedure, we must all help them in this task. I have already appealed more than once to my brother lawyers engaged as members or as advocates to set their sights high in this direction.
Finally, my Lords, let me end as I began, by saying that this Bill is only a step, though an important one, on the road towards implementing the recommendations made by the Franks Committee. I think that the speed with which the Government have acted in this matter is the best evidence we can provide, first, of the importance we attach to the task, and, secondly, of our determination to see it carried to its conclusion as rapidly as possible. I beg to move that the Bill be read a second time.
§ Moved, That the Bill be now read 2a—(The Lord Chancellor.)595
§ 3.16 p.m.
§ LORD SILKIN
My Lords, the House will, as always, be grateful to the noble and learned Viscount for his very clear explanation of the provisions of a rather complex and complicated measure, at any rate to the layman, and even to the lawyer. We are also grateful to the Government (it is not often that I am in a position to pay them any compliments) for the speed with which they have produced this measure. The noble and learned Viscount referred to the normal period of gestation as being seven years. Recently the period has been coming down. Last time I think it was four years. On this occasion it will not have remained unnoticed to your Lordships that the Franks Committee Report was published last July, and from July to the present month represents the normal human period of gestation; so we are getting to a much more natural state of affairs.
I was glad that the noble and learned Viscount stressed the great importance of both tribunals and inquiries in our present system. The tribunals form a greater and growing body of organisation in the life of our community, and in my view it is right that they should. There are some who would suggest that all disputes between authority and the individual. and between individual and individual, could best he dealt with by the courts; but I am sure the House would agree, on reflection, that there is a place for tribunals, and that in many instances the tribunal is a much better medium for dealing with the questions that have to be dealt with than a court could possibly be.
I need mention only three particular advantages of the tribunal: there is cheapness, there is informality and there is speed. In all these respects the tribunal has a great advantage over the courts. And, of course, there is the fact which I would incorporate in the three advantages I have mentioned, that in most cases a person can get along quite well without employing legal assistance. Indeed, I sometimes think that a man who appears before a tribunal in person is at a greater advantage that the man who employs a lawyer. I know—and I can say this publicly—that in many of the planning inquiries, or planning appeals, the applicant would do far better if he went along himself and stated his own case, instead of employing more and 596 more expensive lawyers, as is the habit to-day. Certainly in the case of the vast majority of the tribunals the applicant is at no disadvantage whatever in appearing in person, and he does enjoy the informality of the proceedings before those tribunals.
The number of these tribunals has grown so rapidly—and it will tend to grow equally rapidly in the future, with the more complex system of society—that it has become necessary to ensure some kind of uniformity in the procedure of the various tribunals. Each one has been created by the particular Minister, under a particular Act of Parliament, and the Act has provided for the procedure to be determined by the Minister himself; and, generally speaking, there has been little regard for what happens in the case of other tribunals. The result is that there is an enormous diversity as between one tribunal and another. For this reason the Franks Committee thought that a most important function of the Council would be to ensure that there should be some uniformity as between the different tribunals. On this matter, however, I would utter a word of caution I believe that it would be a great mistake to insist on far too much uniformity. One should have regard to the particular functions of the tribunals and ensure that the particular procedure is suited to the purpose of the tribunal itself. But I have no doubt that any Council set up will have regard to the possible differences between the various tribunals, and will not try to impose too much uniformity merely for the sake of uniformity.
The noble and learned Viscount referred to the various respects in which the Government had not been able to follow the recommendations of the Franks Committee, and he referred to one in particular: that he would prefer to leave to the Minister in charge the responsibility for appointing members of panels rather than ask the Council to appoint each one of them. With great respect, I feel that the noble and learned Viscount made his case; I think the Government are right. It would have been completely unworkable for any Council not connected with a Government Department to have the responsibility for appointing 19,000 members of panels—and not merely for appointing them, but for filling vacancies as they arise; and, of 597 course, for deciding the period for which they are to be appointed.
It often happens that, for very good reasons, a Minister decides that he will appoint people for differing periods. I myself, when I was a Minister, had to appoint a great many people to panels, and so on. I made it my business to interview all the members before actually appointing them, and I frequently found that one person could safely be appointed for a period of, say, five years, while another might be appointed for only two years. It would be quite impossible for his Council to carry out these refinements in the appointments in the way a Minister could do it, and therefore I fully agree with the Government's action in disagreeing with that particular recommendation of the Franks Committee, although I myself was a party to it.
There is one recommendation of the Committee which I am sorry to find the Government have not accepted, and that, is the setting up of two separate Councils, one for England and Wales and another for Scotland. I think that the alternative which the Government have put forward is a mistake. The noble and learned Viscount has not on this occasion given us the Government's reasons for not accepting the views of the Franks Committee (I do not remember whether he did last time; and T was not able to refresh my memory), but in my view the method contained in the Bill is more complicated and more cumbersome than that recommended by the Franks Committee—that is, to have two separate bodies. The Bill contemplates that there will be one body, but with a number of Scottish members. These Scottish members will meet separately to consider Scottish matters, and will then make their recommendations to the main Council. If the Council agree, the recommendations will go forward as the recommendations of the whole Council; if they do not agree wholly, or if they agree with some modifications, then the Scottish Committee will have the right to make their own separate recommendations to the Secretary of State.
It all seems to me very cumbersome. After all, if there were a separate Scottish Council they would be meeting in Scotland on their own territory, and they would not be concerned with English matters at all. And normally (I hope that I am giving no offence to any Scotsman) 598 I should not have thought that people who were eminently suitable for advising on affairs of Scotland would be able to make a great contribution to a general Council. I should have thought that it would be much better to hake an English Council (which would include Wales, of course) and the Scottish Council: the English Council meeting in London and the Scottish Council in Scotland. They should be quite separate, the one reporting to the Lord Chancellor and the other to the Secretary of State.
There might be some way of ensuring that the two bodies did not make conflicting reports-I imagine that that would not be a difficult thing: they would be in touch with one another, and could send one another their draft reports and could have discussions. I cannot see the advantage of having English members concerned with Scottish affairs on Scottish tribunals, which work quite differently from English ones; and vice versa. I would therefore ask the noble and learned Viscount whether he will not reconsider this particular provision, because in my view—and we gave a lot of consideration to this matter—the method which the Franks Committee recommend would be much simpler and more effective than the one described in the Bill.
I come now to the question of appeal on points of law, and agree wholeheartedly with the remarks of the noble and learned Viscount that exceptions from the right of appeal to the courts on a point of law should be made in the case of certain tribunals. As an exercise in ingenuity I might take up his challenge during the Easter Recess and see whether I can think of a point of law in connection with the particular tribunal he mentioned. I am bound to say that, offhand, I cannot. The only possibility that occurred to me, in passing, was whether there could be any argument about what was the appropriate day and whether that could be converted into a point of law—but I certainly will not press that now. I agree with the principle that if it is inconceivable that any point of law can arise in these cases it would be a great mistake to provide people with an appeal on a point of law; it would be completely misleading and would give people false hopes. But I assume, from what the noble and learned Viscount has said, that except in those specific cases there will be an appeal on a point of 599 law in the case of every tribunal, as the Franks Committee contemplated. If that is so, that completely meets the recommendations of the Committee.
On a number of occasions the noble and learned Viscount referred to this Bill as an instalment. That rather militates against my conception that this was a complete acceptance of the Franks Committee Report. I wonder whether the noble and learned Viscount could elaborate on this point and tell us what further measures he has in mind or what more he thinks is necessary. He has told us that the majority of the recommendations of the Franks Committee have been accepted, and I imagined that those that require to be implemented by legislation have been dealt with in the two measures to which he referred and in this Bill. Are there any others? The noble and learned Viscount has told us of those recommendations that have been dealt with by administrative means. I wonder whether there are still recommendations left that need to be implemented by legislation. If so, it would be a great help if the noble and learned Viscount would tell us what they are and give us some idea of when such legislation would be introduced.
I should like to refer to one final matter, inquiries. The noble and learned Viscount told us, as indeed is the case and as was contemplated by the Franks Committee, that the question of inquiries would be within the purview of this Council or, as I hope, Councils. So far the only effect of the Franks Committee recommendations on the matters that have been or will be implemented has been to slow down the operation of inquiries. The necessity for a public inspector's report with his recommendations and the opportunity afforded to the applicant to know what is the case he has to meet add considerably to the steps that have to be taken in connection with an appeal and therefore add considerably to the length of time that an appeal takes.
At present—and I say this with some knowledge of the matter—from the time a person decides to make an application to his local authority for permission to develop to the time when he is informed of the decision of the Minister on appeal may well be eighteen months, and in 600 many cases two years. Let noble Lords place themselves in the position of a prospective developer, desiring to carry out an important piece of development which he believes is in the public interest, who finds that the local authority raise objections, as local authorities often do, and realises that it is going to take him possibly two years before he knows the decision of the Minister. Your Lordships can well imagine that many prospective developers will be deterred altogether from initiating such a project. I would suggest that that is not in the public interest.
Your Lordships may be aware of the projected hotel in Park Lane. I want to admit that I have a very indirect interest in this matter, as a relative of mine was a party in the appeal, but the fact is that it is now two years since that project was initiated, and there is no decision yet. A large amount of money has been spent on plans and so on, and whether the project is right or not—and it is not for me to say—surely something should be done to expedite the matter and enable businessmen, who are anxious to carry out something which in itself is desirable, to know in a much shorter time whether they can do what they seek to do or not. I hope that the Council will not only consider how to take a multiplicity of steps and undertake a possibly complicated procedure in the interests of fairness, openness and impartiality, but will also consider one more requirement—that is, speed.
Your Lordships will have gathered from what I have said that we on this side of the House have no objection to any of the provisions of this Bill. The only one which I should like to ask the noble and learned Viscount to look at again, and that solely in the interests of efficiency, is the question of whether we should not have two Councils, one for Scotland and one for England and Wales. I hope that the good start which the Government have made in producing this Bill will be followed up by equally speedy measures, if necessary, to implement the rest of the Franks Committee Report. I have great pleasure in associating myself and my noble friends with this Bill.
§ 3.38 p.m.
§ LORD DENNING
My Lords, I, too, should like to thank the noble and learned Viscount, the Lord Chancellor, for introducing this Bill. He has done a great 601 service to the people of this country, first in appointing the Franks Committee and now in promptly introducing this Bill. It will do much to redress the balance between the individual and Government Departments. In our constitutional law it will rank as a first chapter in a new Bill of Rights. But when I look at the Bill, I would say that many clauses are not fully comprehensive. As the noble and learned Viscount has said, many tribunals do not come within the way of the Council on Tribunals. The judicial decisions of Ministers do not come under this Bill. The clause which it seems to me will do most to maintain our liberties is Clause 10, which declares and reaffirms the inherent powers of the High Court to review the decisions of tribunals and Ministers and anyone who exercises a judicial function.
Our procedures are called by old names—certiorari and mandamus—but they are effective to-day in keeping tribunals within their jurisdiction and seeing that they fulfil the law. But this clause is important, for this reason: in the last thirty years Government Departments have slipped into Bills clauses such as this: "No determination of the tribunal shall be called into question in any court", and, the decision of the Minister shall be final and conclusive." What Cause 10 of this Bill says—it is a new Declaration of Rights—is that no such clause shall prohibit a party from coming to the High Court to have the decision reviewed by our ancient and well-tried procedure.
But I would give a word of warning here: that this clause will not serve its purpose by itself, but needs an added clause. The Franks Committee, quite rightly, pointed out time after time the importance of a tribunal's giving reasons for its decision. That is simply a matter of justice. A just decision can be seen to be just only if the one who has to decide gives his reasons, because then the party can see that he has considered the evidence and the arguments and has not been influenced by extraneous considerations. But the matter goes further than that. So far as the law is concerned, the High Court has no power to interfere with the decision of a tribunal unless it gives its reasons and those reasons are seen to be bad on the face of the proceedings. That has been the law for centuries. If the tribunal simply gives 602 an order, without reasons, and if the face of the proceedings is as inscrutable as the face of a sphinx, the High Court can do nothing. Hence, if this clause is to be effective, there should be an additional clause: that all tribunals and every person giving a judicial decision ought to give reasons.
I should like to bring this point home by way of an illustration which may interest your Lordships—it is 120 years old, but none the worse for that. A Mr. Hansard, the printer of the Parliamentary Papers, was ordered by those in another place to print a Report of the Inspector of Prisons; and he did print it and sold it outside. That Report contained a libel on a Mr. Stockdale, and Mr. Stockdale brought his libel action in the courts against Mr. Hansard. Mr. Hansard pleaded the privilege of Parliament. The courts rejected Mr. Hansard's plea, and judgment was given against him for £600 damages. Mr. Hansard did not pay. So the court ordered the Sheriff of Middlesex to levy execution. The Sheriff of Middlesex went in and sold Mr. Hansard's goods and levied his £600. What did those in another place then do to the Sheriff of Middlesex? They ordered the Serjeant-at-Arms to take the Sheriff of Middlesex into custody; and into custody he was taken. He sought his release from the courts by bringing his habeas corpus, our ancient right for securing our liberties, in the King's Bench. The Serjeant-at-Arms thereupon produced the warrant, under the hand of the Speaker, that this unfortunate Sheriff was committed by order of the House for breach of its privileges, and the warrant gave no grounds and no reasons. And because there were no grounds or reasons apparent, the High Court held that it could not set the Sheriff free; the warrant was good on its face, and the Sheriff had to remain until those in another place were pleased to release him. That was a case where there were no grounds or reasons stated in the warrant, and the court could not interfere.
Contrast that with a leading case which we had only a few years ago, of Mr. Shaw, who was employed in the local government service in Northumberland. When the Health Service came into being he lost his employment and was entitled to compensation. He had been about 603 thirty years in the local government service, but only two years in the Health Service; and the tribunal said that he was to have compensation based only on the two years in the Health Service and not the thirty years in the local government service. That was wrong in law. There was no appeal from the tribunal. But they had given their reasons, and because of that, the court could see that it was bad in law and, exercising this ancient and well-tried jurisdiction of certiorari, the court set aside the decision of that tribunal.
Your Lordships will see how important it is to our liberties that tribunals and all those who have the responsibility of giving judicial decisions should give their reasons. Indeed, in the Report of the Franks Committee, although with regard to some of the tribunals, such as the Medical Appeal Tribunal or the National Assistance Appeal Tribunal, they say there need not be an appeal, they stress time after time that these tribunals should give their reasons. Unless there is a clause added here that tribunals and Ministers should give their reasons, our liberties will not be fully safeguarded. And, mark you, my Lords, Clause 10 applies only to England. Scotland has never had anything like our certiorari or mandamus. The Franks Committee say so; and they say that Scotland ought to have something like it. However, I can find nothing in the Bill to give it to Scotland. A few years ago there was a dispute at a factory in Paisley between the employers and the women workers as to the amount of the women workers' wages. The employers happened to be an English limited company. The matter went to the tribunal, and the employers wanted to say that the decision was wrong in law. They could not go to Edinburgh, which was the sensible place, but had to bring that Paisley dispute to London, where they got it decided. I suggest that the inherent powers of the court, as mentioned by the Franks Committee, should be extended to Scotland.
To take it even further, in cases where appeals are allowed (and how thankful one is that they are!) from a number of these tribunals, what is the structure of appeals on a point of law? In England, the appeal stop is at the Court of Appeal; in Scotland, it is at the Court 604 of Session. These Acts are often in the same words for each country. Suppose the Court of Appeal decide one way on a point of law, and the Court of Session decide the other way. I had that happen when I tried the pensions appeals of war-disabled men. What happened was that when I gave a ruling in favour of disabled men in England quite a number of Scotsmen moved from Scotland to England so as to get the benefit of our better ruling. But when the reverse happened, as it did, and the Scottish Court of Session gave a ruling more favourable to the claimant than I have given, some Englishmen, although they did not move to Scotland, took an accommodation address there to get the benefit of the Scottish ruling.
Ought we not to reconsider this structure of appeals? Under the Bill as it stands, on the tribunal footing there is to be a legal tribunal with an appeal to a central tribunal. On the courts footing, there is to be an appeal from the tribunal to the High Court, and then from the High Court to the Court of Appeal. In view of what I have said—and it is not inconsistent with what the Franks Committee recommended—I wondered whether it would not be a good thing to eliminate the High Court in England and have an appeal direct from the tribunal to the Court of Appeal. After all, the Court of Appeal—a first-class court for it—decide the Lands Tribunal appeals direct, and the Transport Tribunal appeals direct, as well as a number of others. So why not cut out the High Court and have a straight appeal from the tribunal to the Court of Appeal? Then, if there is a difference between the Court of Appeal and the Court of Session, the procedure is simple. Let the matter come, by leave, to this House in its Judicial capacity, where there are learned Lords from Scotland as well as from England, so that any questions may be resolved here. That should be done only in exceptionally important cases.
So much for tribunals. What about inquiries? They are equally important—indeed, they may be more important: there are all the cases of compulsory acquisition of land, whether by local authorities or anyone else, and all these planning appeals that arise when people want to develop their land. We had a case the other day in the courts where a granite company, which owned quarries on the Malvern 605 Hills, wanted to extend those quarries. Could they do it without permission? Had they to get permission? What were the conditions? There were a number of questions of law arising, with the Minister saying, "It is not for the courts to determine these." Inquiries are the most important part of the system to-day between the individual and the Government Departments.
The Franks Committee went into the matter very closely. As the noble and learned Viscount has said, the Minister of Housing and Local Government has issued a circular (and I have had the privilege of seeing it) on this question of inquiries, and it contains much for which we should be grateful. The findings of the inspector and the Minister's decision are all to be given to the party, and the party can claim to see the report. But it is to be carefully watched. The Franks Committee recommended what was, in effect, equivalent to an appeal from the inspector's findings. They said, "Let the parties see the inspector's findings before they get to the Minister, and then the party will have an opportunity of correcting those findings before the Minister has to consider them." That was put forward in the Franks Committee's Report as a substitute for an appeal, which was pressed for. In this circular you will find that there is no opportunity for correcting those errors. The inspector's findings and the Minister's decision go out at one and the same time. Grateful as one is that the Council on Tribunals is also going to take under its wing such matters as the noble and learned Viscount referred to in regard to inquiries, we need a second chapter to this Bill of Rights.
Then what about the third group of cases, which may be described as the Crichel Down cases, where there is no tribunal and no inquiry, and the question raised is the abuse or misuse of power in the interests of the Department at the expense of the individual? And not only cases like Crichel Down: there are the smaller cases of refusal of licences, the imposition of harsh conditions and so forth. How are they to be met? The noble and learned Viscount was wise not to commit too much to the Franks Committee. If they had had that added task put on them, goodness knows when the Report would have been finished! I suggest that the question of misuse or 606 abuse of procedure and maladministration is a matter which cannot wait too long: it is the third chapter of this new Bill of Rights. When we have these three, the first chapter on tribunals; the second chapter, which we shall have soon, on inquiries; and the third chapter on maladministration, then we shall do something to equal what our forefathers did nearly 300 years ago. But just remember this. We are seeking to maintain the rule of law, but the rule of law itself is dependent upon the judges and the lawyers of this country. They must maintain their high standard. They must be independent. They must be upright and ready to do justice equally between man and man, and between man and the State. It is only if they can maintain their high standards that we are justified in claiming for them this Bill of Rights, to put tribunals and others under the law. Thankful as we are, and I am, for this great constitutional advance, I would support the Second Reading of the Bill.
§ 3.57 p.m.
My Lords, your Lordships will have heard with great interest the powerful speech which has just been delivered by the noble and learned Lord, Lord Denning, who well knows the authority that his views on legal matters carry. After the learned speeches your Lordships have just heard, it is with some hesitation that I rise to commend this Bill in your Lordships' House this afternoon. But there are on this side of the House many Members who for the last ten years, when legislation which appeared to be oppressive to the individual citizen has been produced to this House, have done their best to attempt to defend the legal rights of the citizens of this country. It is more than ten years ago now since, from this side of the House, we did all we could to defend the legal rights of members of the public. In those days we were not often successful. That was not through any lack of trying, but was due to the nature of the legislation that came up from another place.
In my opinion, the Franks Report is of the greatest value to individual legal rights. Such legal rights over the last few years have been diminished, and the balance of justice has been weighed increasingly against the individual when he finds himself, often against his wishes. 607 in opposition to Ministers, Government Departments and public corporations. If the noble Lord, Lord Lucas of Chilworth, were in his place this afternoon, I fancy that he would remind your Lordships of the powers of the Central Electricity Authority and the way they are often used to the detriment of individuals. I am sorry that the noble Lord is not here, because on several occasions he has made speeches on this matter which might well have been made from this side of the House. Be that as it may, I believe that the Franks Report was long overdue, and I think it is a matter for congratulation to the Government that they have brought forward this Bill with such speed after the publication of the Franks Report.
The noble and learned Viscount, in his opening speech, referred to the duties laid on the new Council, and I should like, as a layman, to ask two questions about the functions of the new Council. Clause 2 of the Bill says that reference to the Council may be made by the Lord Chancellor or, on a particular matter relating to Scotland, by the Secretary of State. I should like to ask the noble and learned Lord Chancellor: who else, if anybody, can make references to the Council? The Council is the child of the Lord Chancellor; is it only the parent who can refer matters to the Council, or can other bodies or other individuals do so? Secondly, the clause goes on to say, in subsection (2):… and the report of the Council on a reference so made shall be made to the Minister making the reference.As a layman, I feel that that passage is slightly obscure. I do not know whether it refers to the Lord Chancellor, as a Minister, or to another Minister as a Minister; but perhaps in his reply the noble and learned Viscount the Lord Chancellor will elucidate that point. It seems of considerable substance, because it may be that only the Lord Chancellor can deal with the Council; and if that is so, the Council might, in certain circumstances, be prevented from dealing with matters with which it is competent to deal.
I do not want to mention the matter of tribunals because that has been so clearly put before your Lordships' House by the noble and learned Lord, Lord Denning, and by the noble Lord. Lord Silkin. But I should like to refer to 608 inquiries, because during the course of twelve months by far the greatest number of cases heard are heard by public inquiries, of one sort or another. That is especially so in regard to the Town and Country Planning Act, which is responsible, in the course of a year, for literally thousands of appeals. All these appeals have to be heard before an inspector from the Ministry concerned; and as the noble Lord, Lord Silkin, mentioned, they take some time to be determined. But I would suggest to your Lordships that these appeals and the Minister's decision are matters of such vital importance that perhaps it is better to be slow than to be wrong. I do not know whether the noble Lord would agree with me on that point.
§ LORD SILKIN
My Lords, there is no guarantee that if you are slow, you are going to be more right than if you are not slow.
That may be so, but I would suggest that it is better for the Minister to take his time than that the decisions should be hurried simply because the developer is in a hurry to carry out his development.
The noble and learned Viscount referred to the recent circular from the Minister of Housing and Local Government to, I take it, local authorities. This circular is, I am quite convinced, a most valuable paper, because it implements in itself, without any legislation, some of the most important points and recommendations of the Franks Committee. The noble and learned Viscount has referred to them, and I think the most important one may be the attendance of ministerial representatives at public inquiries. Up to now, Government Departments have fought tooth and nail against being represented; and the Ministry of Agriculture, in particular, have blocked the road as long as they possibly could.
Some years ago, the Minister of Transport, perhaps being a more modern-minded Minister, sent his representatives to public inquiries, one of which I had to attend in a private capacity. The chief engineer from the Ministry of Transport appeared to explain a very large road proposal, but the Minister of Agriculture refused to be represented; and the inquiry had to be halted at one time so that the lawyer representing the county council concerned could telephone 609 the representative of the Ministry of Agriculture. He was the regional controller, situated in a town some fifty miles away from where the public inquiry was being held, and his opinion was elicited over the telephone; it was then relayed to the public inquiry when it met again after luncheon. Nobody can defend this sort of proceeding, and I am delighted that the Minister has now laid down this policy. I only hope that it will be followed by all other Ministers—because, of course, the Minister of Housing and Local Government is only one inter pares—when matters affecting their Departments are being dealt with by public inquiry.
The noble and learned Viscount mentioned the fact that the case that an individual had to meet at the local inquiry had to be presented to the applicant some time before the inquiry started. I believe that an equally important matter is that the Minister's policy should be known—and well known; and that is a matter of great difficulty to-day, because when the Minister lays down policies on green belts and so on they always seem to be subject to reservations. That undoubtedly increases the number of appeals, and it is the great number of appeals to-day in this matter that clog the machinery and no doubt lead to the delay to which the noble Lord, Lord Silkin, referred. There are so many appeals going through the appeals machinery that they all have to take their place in the queue.
If the Minister's policy were really well known. I think that the number of appeals would be diminished—for this reason: that you appeal against a decision because you feel that there is some doubt about it or that you have been given the wrong answer. One might take the case of the law and regulations regarding advertisements, which lead to hundreds of appeals during the course of the year. If the policy were really laid down and known, both to advertisers and to planning authorities, then I think the number of appeals would be greatly diminished, to the benefit both of the advertisers and of the public, and also of those who are waiting to get an answer from the Minister on an appeal made some time before.
I agree with the statement of the noble and learned Viscount at the beginning of his speech, that it is of the first 610 importance that matters of procedure, both of tribunals and of administrative inquiries, should be kept constantly under observation and under review, because things change and new legislation pours out from another place. Almost every piece of legislation nowadays affects the interests and legal rights of the individual. Therefore, unless the individual is to be severely prejudiced, it is of vita I importance that these procedures should be kept under constant review. A Welfare State, which is pledged to defend the legal rights and interests of its citizens, is a poor thing indeed if it fails in its duty to protect the legal rights of the citizen. I am sure that your Lordships were much impressed by the powerful words of the noble and learned Lord, Lord Denning, when he referred to a new Bill of Rights, because in this matter I feel that the Government are taking the first steps to implement a new Bill of Rights for the benefit of the citizens of this country.
§ 4.13 p.m.
§ LORD SALTER
My Lords, to your relief, as to mine, the opening words of the Lord Chancellor have made it unnecessary for me to say most of what I had intended to say, and the noble and learned Lord, Lord Denning, has made it unnecessary to say some of the rest. I shall therefore confine myself to a few brief remarks. I had intended to emphasise the limited scope of this Bill and to suggest what more would have to be done later. I had not realised, as I think the noble Lord, Lord Silkin had not realised, what the Lord Chancellor told us at the beginning of his speech—namely, that this was only an instalment. I am glad to hear that. I had been rather disconcerted by the opening words of the Explanatory Memorandum, which states that this Bill is intended to deal with only "some" of the recommendations of the Franks Committee. I should, however, like to add one or two general comments as to the background behind which both this Bill in its later stages and the later instalments of the legislation which the Government contemplate might perhaps be seen.
The Franks Committee, as we all remember, met for some eighteen months. It consisted of carefully chosen and responsible members, both men and women, with great administrative 611 experience, and it was adequately supplied with full and relevant information from the Civil Service and from all the organisations with relevant experience concerned in this question. The first general point I want to make is that I think that when a Government has carefully drafted terms of reference, and has then itself carefully selected members of a Commission or Committee, it should be a strong presumption that, except in cases for which there is a decisive and clearly-stated reason, the recommendations of such a Commission or Committee, if unanimous or practically unanimous, should be accepted. In view of the unknown future of later instalments, it may be that the Franks Committee will be much more fortunate in this respect than many Commissions and Committees are.
The present extent to which Government and Administration affect outside interests throughout the country makes it essential to secure the advice and assistance of persons with the requisite experience. It is, I think, for that reason, of the greatest importance that there should be a strong presumption in favour of the acceptance of the unanimous recommendations of such people, chosen by the Government and working within carefully defined terms of reference. That is the first general remark I should like to make.
My next point is this. It is interesting to reflect how almost accidental is the opening of the first chapter of what Lord Denning called this new Bill of Rights. I suppose it would not have happened—or at any rate would not have happened then—had it not been for Crichel Down. Crichel Down became important because it happened that the victim on that occasion had the unusual combination both of personal resources and personal determination. The consequence was that his protest laid a spark to a long-smouldering mass of public grievance and indignation that otherwise would perhaps have continued for much longer to smoulder without bursting into fire. But the spark was laid, and there followed, first of all, the resignation of a Minister, himself perhaps comparatively innocent because comparatively impotent in the particular matter; then the Franks Committee, and now this Bill and, happily, the prospect of further instalments later.
612 There is one last thing I should like to say, namely, that the real problem before us is much bigger than anything that has been touched upon in this Bill or has been dealt with by the Franks Committee. The growth and preservation of freedom and personal rights in this country has depended mainly upon not so much the division of power but the sharing of power and the due balance of power between the Legislature, the Judiciary and the Executive, and, within the Executive, upon proper relations between the Ministers responsible to Parliament and their official advisers. We have to realise now that the balance, as it was known in the nineteenth century, has been profoundly disturbed. The great bulk of laws are now made, through delegated powers, outside Parliament; the great bulk of decisions of a judicial character are made outside the Judiciary by special tribunals; and within the Executive the balance as between Minister and officials has been very much changed in the direction of giving greater effective power to the official as against the Minister.
That is not due to anybody's deliberate plot or purpose; it is due, as we all know, to the immense extension of the sphere of government. That change has to a large extent been inevitable. We cannot hope to restore the particular balance which acquired and secured our personal freedom and rights in the nineteenth century. But the problem of replacing what we have lost through that disturbance of balance is, I suggest, a difficult and a long one. We have a very modest instalment to-day and we have a guide towards more instalments in the Franks Committee. But there is a longer road ahead than either of those two has yet trod. It will be the great problem of our Constitution and of our system of government, now and for long to come.
§ 4.22 p.m.
§ THE LORD CHANCELLOR
My Lords, may I first express my gratitude to those of your Lordships who have taken part in this debate and all welcomed the Bill, which I have the honour to place before your Lordships' House. It is an interesting commentary on the wealth of experience in your Lordships' House (if your Lordships will allow me to make it) that the speeches have been made by a former Minister who had 613 vast experience in this field at a very difficult time, whether we agreed with everything he did or not; and after him by one of the foremost Common lawyers of the generation; then by my noble friend Lord Hylton, with an almost unrivalled wealth of experience in local administration, especially in the countryside; and lastly by my noble friend, Lord Salter, whose experience is so diversified that it is difficult to put it into any category. I can recall only a very recent phase of that experience when he was a Treasury Minister, and I was glad to hear those stalwart words of independence coming from someone who latterly occupied that position.
I shall try to deal with the points raised, because they are of great importance. I am glad that the noble Lord, Lord Silkin, agrees that it is important to keep a flexibility of procedure in regard to tribunals. I agree with him that that is one of the assets which they have, and I have very much in mind, in considering these procedural matters, that we must not get into rigidity in looking for perfection. I am also glad that he agreed with the view taken by Her Majesty's Government on the appointment of members. With regard to his concern for Scotland. I should like just to put one or two points, because—he is quite right—I did not deal with the question earlier and should like him to consider these points, if he will be so good. I think the most forcible answer is that the great majority of tribunals operate in England and Scotland alike, and I dealt with that point in the previous debate. If the noble Lord would like to look at what I said, it is in the OFFICIAL REPORT, Vol. 206 (No. 11), col. 578, which gives him the reference. That, my Lords, is the first point: if tribunals exist and operate in Great Britain, then they must be considered by the Council as a whole.
But we have tried to ensure that the special Scottish problems will get an adequate national consideration. As your Lordships see, the Council will consist of not more than fifteen nor fewer than ten members, and the Scottish Committee is to consist of two or three members of the Council together with three or four other persons appointed by the Secretary of State. We saw the practical problem rather like this: that matters affecting England and Scotland alike will be dealt with at meetings of 614 the full Council, probably held in London. On the other hand, it does not seem necessary for all the members of the Scottish Committee to be members of the Council, because this would tend to impose upon them too heavy a burden in coming to London; and we thought it would be easier for the Secretary of State to find suitable people to serve on the Scottish Committee if they could confine their attention to this work without being called upon to attend meetings of the Council outside Scotland.
The noble Lord, Lord Silkin, will see that the Scottish Committee will have the right to report directly to the Secretary of State on any matter on which the Council have not adopted their recommendation. I agree with him that at first sight it seems more complicated, but if he will give consideration, as I am sure he will, to these points which I have summarised to-day and the points I made on the last occasion, he will realise that we have considered the matter carefully from the practical as well as the general aspect. and I hope he may have second thoughts. Of course, I shall consider what he has to say with equal care. My Lords, I am glad that the noble Lord is going to apply his mind to the question of the point of law in the cases I mentioned, and it will be most interesting if at a later stage of the Bill he finds one where I have completely failed.
But now I come to one of the important points which he raised and which I think my noble friend Lord Salter had in mind—namely, what has still to come? The noble Lord, Lord Silkin, will remember that of the ninety-five recommendations we accepted seventy-nine in whole or in part, we reserved twelve, and, as I said, we rejected only four. In the case of some of the seventy-nine which we accepted in whole or in part, we want further information, and in both these groups I think there are some where we want the opinion of the Council on Tribunals. We cannot anticipate what that opinion will be, and it may require legislation. May I take a very simple one, a procedural matter? They might recommend giving absolute privilege to witnesses before tribunals. That is a point which obviously needs consideration. If they so recommend and we accept the recommendation, that would require legislation.
615 Another point which we shall have to consider more fully is the revision of the Defence Acts to provide a code of acquisition for the Service Departments. As the noble Lord knows, this is not a question of replacing emergency legislation but of revising Acts which are very old, and here the Franks Committee made certain recommendations. That matter might require subsequent legislation, when we have completed consideration. Then there are minor points, such as the abolition of certain appeals from the tribunal to the Minister in certain cases and the giving of an automatic right of appeal to the Commissioner under the National Insurance Acts in industrial injury cases. These are relatively minor points, but they will require legislation when they are brought into effect. So there are a number of points, not of the importance of the constitution of the Council, but still points which, in any legislative tidying up and improvement which the Franks Committee wanted, we shall have to consider.
The noble Lord's other point about the balance of speed and perfection in procedure I consider to be of great importance. Everyone who has had Ministerial experience will agree that this is one of the most difficult practical tasks in government. The trouble about the view that we have just heard so eloquently expressed by my noble friend Lord Salter is that the two things are not antithetical. We need only take Magna Charta—"To no-one shall we sell, to no-one shall we delay, justice"—to see that delay beyond a certain point is injustice. Therefore, this is a matter which I would ask noble Lords to consider carefully.
There have been criticisms with regard to the position of inspectors of the Ministry of Housing and Local Government, but, as the noble Lord, Lord Silkin, will bear out, the Report of the Franks Committee makes it clear that unless we have inspectors in the closest possible touch with the Ministry, so that the machine is working not only on an unending belt but on a rapidly moving belt, then the inquiries will be held up and there will be injustice to the private individuals whom the machinery and procedure are designed to help. I entirely agree with the noble Lord, Lord Silkin, that this is a point one must have con- 616 stantly in mind, and I should like to reassure him that we have had it in mind in our examinations of the Report and in endeavouring to put its recommendations into operation to the greatest extent that we can.
I am sure that your Lordships were delighted and interested in the account from my noble and learned friend Lord Denning of supervision by the High Court and what it really means. I was especially interested in his description of that famous leading case of Stockdale v. Hansard. I should like to relieve his mind by saying that during the three years in which I was Home Secretary I had in my room a reproduction of the picture of the Sheriff of Middlesex in the Tower. I should like to tell my noble and learned friend that the Sheriff looked extremely happy and was sitting comfortably on a couch, which was a comfort he might well not have found in his ordinary avocation. Apart from that, I am glad that my noble and learned friend emphasised the point.
There is one matter which I would ask him to consider. He suggested that there might be a unification or synthesis of Scottish and English decisions of this House sitting judicially. That is exactly one of the difficulties of the point made by the noble Lord, Lord Silkin. My noble and learned friend will see that in this Bill we have restricted the appeal in one class of case for the very reason that if it goes on too long we shall endanger the speedy fulfilment which is so necessary. I am sure that my noble and learned friend knows that I am not making merely a debating answer. It is a point which I found of great difficulty in considering this problem.
In an interesting section of his speech, my noble and learned friend dealt with the abuse of powers as opposed to the existence or absence of procedures. There are two points in regard to this matter, and I think that they were in the mind of my noble friend Lord Salter, too. In the modern scientific State, it is impossible to avoid subsidiary legislation—I was nearly adding "entirely" but I would say, "or prevent it from being extensive." Subsidiary legislation goes back well into the nineteenth century and was quite extensively used then. It is inevitable in the more complicated structure of government and society. I think 617 that one answer to this problem is that, whenever subsidiary legislation appears in a Statute, it should be the subject of consideration in both Houses of Parliament and the Minister concerned should be asked why he has selected subsidiary legislation and, say, the procedure of Negative Resolution instead of Affirmative Resolution, and the like.
As the noble Lord, Lord Silkin, will remember, I have tried once or twice in debates in your Lordships' House to give certain principles of when subsidiary legislation should be used and when the various procedures should be used. No one knows better than my noble friend Lord Salter, because his memory goes hack to the Insurance Act of the late Mr. Lloyd George, how it was essential that there should be a mechanism of subsidiary legislation in order to make the operation of that Act flexible and meet the requirements in an entirely new field. Often it is better to have regulations, so long as there is active Parliamentary control but what we must try to avoid—and all Ministers have to lay this self-denying, ordinance upon their souls—is the use of subsidiary legislation for what is really fit for main legislation. I consider it most important that Ministers should try to do that, difficult though it is, and I consider it admirable, also, that Parliament, from whatever quarter of the the House, should keep them up to scratch in that way.
I do not want to be at all controversial, but on tine other matter we were faced with a great mass of subsidiary legislation, for which we are all responsible—and I suppose that the noble Lord, Lord Salter, and I are particularly responsible, because we wt-re Ministers in the wartime Government and, directly or indirectly, produced a great deal of it. But these orders get built in to the working of the country; and, as the noble Lord, Lord Silkin, has often pointed out to me, with very good temper but at the same time with great force, they have taken a lot more time to dismantle than appeared necessary at first. We have tried in that respect. This year I hope that, by the Bills I have mentioned, we may do away with all the regulations that deal with requisitioning of land.
That brings me back, rather circuitously, to the point of my noble and learned friend Lord Denning, that a great deal of these oppressive powers are built 618 up on the remnants of war-time regulations, orders, licences and so on, and that it would be for the health of government—I speak from no Party angle at all—if we could get them swept away and make it as necessary as possible to inform Parliament how legislation will affect tile ordinary citizen. I am sorry to have gone into rather deep constitutional matters, but I was inspired by the speeches of my noble friends Lord Denning and Lord Salter, and I have tried to give them the answer as I see it.
I do not want to weary your Lordships unduly, but I should like to deal with the important points raised by my noble friend Lord Hylton. He asked me about the position of the Council, and whether it would be handicapped in any way by the provision to which he referred. If my noble friend will look at Clause 1 (1), he will see that it is divided into paragraphs (a) and (b). Under paragraph (a), the Council will have the dutyto keep under review the constitution and working of the tribunals specified in the First Sschedule … and, from time to time, to report on their constitution and working".If my noble friend will then look at Clause 2 (6), he will see these words:The Council shall make an annual report to the Lord Chancellor and the Secretary of State on their proceedings and those of the Scottish Committee, and the Lord Chancellor and the Secretary of State shall lay the annual report before Parliament with such comments (if any) as they think fit.So that, so far as the constitution and working of tribunals are concerned, the Council will be able to act with complete freedom; and if the Ministers do not take sufficient notice they will be able to report to Parliament.
Then, under Clause 1 (1) (b), the Council haveto consider and report on such particular matters as may he referred to the Council under this Act with respect to tribunals … or with respect to administrative procedures.…My noble friend is quite right in thinking that the reference here is to be made either by myself or by the Secretary of State for Scotland. He was also right in what I think was his understanding, that I am for this purpose a "Minister". The Lord Chancellor, as I said the other day, is the personal contradiction of Montesquieu's theory of the separation of powers, because I am at the same time head of the Judiciary, a Minister, and 619 have the honour of being Speaker in your Lordships' House. But I am a Minister; and on matters that will be referred, they will be referred by me or by the Secretary of State for Scotland.
So far as I am concerned, my functions under the Bill have. I think. been entrusted to me because I have that composite character and am head of the Judiciary: what I say is accepted by people who may not have the same respect for my views as a Minister as they may have for what I say in my judicial capacity. I think my noble friend will find, on reflection, that it is appropriate that I should refer to the Council questions of procedure. The difficulty, so far as my noble friend the Lord President of the Court of Session is concerned, is that he is not answerable to Parliament, whereas I am; and therefore any action of his which might give rise to questions in Parliament would have to be dealt with in Parliament by the Secretary of State for Scotland. That is why it is put in that way. I do not think my noble friend Lord Hylton need fear that any of these questions will not be referred, first of all because of the general care and supervision which this House would give to my activities, or lack of them—and, of course, the Attorney-General would speak on my behalf in another place—and also because of what I mentioned before: the fact that the Council have the right to make an annual report, in which they could draw attention to any failure on my part to refer the necessary matters.
I thank the Lord Chancellor for his answer, but I am still in a little doubt, not on his constitutional position, but on the matter of reference. Should the noble and learned Viscount not refer any matters to the Council, they will then be confined to their annual report. What I asked originally was whether anybody else can refer a matter, other than through the Lord Chancellor.
§ THE LORD CHANCELLOR
As I understand it, it would have to be done through me. But supposing my friend had some point, he could put down a Question to me here and ask me to refer it. As I say, as the Lord Chancellor is really functioning under this Bill not so much as a political Minister but as head of the Judiciary, and therefore concerned with procedures, the prospect that 620 a matter would not be referred is, I think, quite small. I am grateful to my noble friend for having raised the matter, and I will willingly have a look at it. I merely wanted to explain to him the theory on which it is based.
It did pass through my mind that the noble and learned Viscount's successor might possibly strangle his child.
§ THE LORD CHANCELLOR
In view of my connection with the Homicide Bill, I think my successor would think twice before taking that violent course. However, I take my noble friend's point, and, as I say, I shall be glad to consider it.
My noble friend's next point was whether other Departments would follow the example of the Ministry of Housing and Local Government. I can assure him that it is the intention of all my right honourable friends that the procedure should be generally followed. He will not hold me to the foot of the letter in regard to each one, because there may be differences. But I give him the assurance that that is the intention of Her Majesty's Government; indeed, I think he will find, on inquiry, that the Ministry of Education have, in fact, done this for a considerable time—I see that he knows that. I make no reservation in answer to his main point. I do not want to tie every Department to exactly the same minutiae of procedure. I hope that he understands me—I am not making any reservations on the important point.
My noble friend raised another important matter with regard to the statements of ministerial policy. He will appreciate the difficulty in that regard: if the policy is either too full, or comes out too near a set of inquiries, the Minister may well be accused of prejudging the inquiries that are coming up to him. He must avoid that, and therefore I think the best method is to give publicity—reminding local authorities, asking them to pass it on to all those concerned with inquiries—to the statements of policy made by the Minister. As my noble friend knows, there are a great number of these which are published, though sometimes people do not know where to look for them. I believe that if that were done it would to some extent meet his point, and prevent what I fear might happen. May I assure my noble 621 friend that I will, of course, consider the points he has raised. I have answered to the best of my ability, what seemed to me to be the main points.
My noble friend Lord Salter raised some general points on administration and on modern government—I thought they were of great importance. It is a problem to decide how far one is justified in using the time, experience, learning and energy of prominent people, and then not accepting what they say. It is a difficult problem, but I think the noble Lord would be the last to suggest that a Government can ever abdicate from the position of making up its own mind. A Government must give the most serious consideration to the report of any Committee; but ultimately the decision can be only that of the Government.
§ LORD SALTER
My Lords, of course I entirely agree. But my point was that the Government have, first of all, the opportunity, of which they take advantage, of carefully considering and limiting the terms of reference. Secondly, they have the opportunity of carefully selecting the people whose advice collectively they think will be relevant and most valuable for the particular purpose. While there will be cases when, even so, the Government will feel obliged to reject a particular recommendation, for what I hope will be clearly stated reasons, I think that there should be a much stronger presumption than there often has been in the past in regard to bodies appointed by Governments for the purpose of giving advice.
§ THE LORD CHANCELLOR
On the general point, it is difficult to express or, indeed, to argue about shades of emphasis in this matter. On the one hand, it is quite clear that the report, on what is ex hypothesi a difficult question, must receive careful consideration. I should not like to accept without reflection Lord Salter's words about the terms of reference or the selection of the personnel of the Committee. I should much prefer on 622 many occasions to have wider terms of reference that would give us fuller information and a representative body which would ensure also a width of opinion, than to narrow it to get a result which might be more palatable. Again, I am not going to lay down rules:, nor am I being argumentative for the sake of being so. On the one side, there will be careful attention, and on the other side the Government must preserve their sole right to make the decision. I agree with what the noble Lord said: that when these Committees are appointed there is a heavy onus on the Government, if no action is taken, to show why they have not acted. To that extent, I would go with him. Indeed, it is remarkable, when one goes through all the Committees which have been appointed, that the action taken by the Government is not nearly so negative as some examples, taken by themselves would make one feel.
I could not feel more strongly on the general point that my noble friend Lord Salter has made. I believe that one of the great challenges of 1958, the second half of the twentieth century, is to try to get the balance between the individual and the State right. We know, of course, that the State must infringe the rights of the individual if it is to have schools, hospitals, houses, factories, universities, technological colleges and all the things that we need if we are to keep our place in the world. But surely it is not beyond the wit of man to see that, when that infringement takes place, the individual will get a fair deal: that he will get the chance of expressing his objection, and of showing clearly the loss which he has sustained. But that is, I think, one of the challenges of our century. I believe, from the reception given the Franks Committee's Report, that this has ceased to be a Party point: it is something to which we are trying to find the answer. And if I have come a little nearer finding the answer with this Bill, I shall be content.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.