§ 2.53 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD MERTHYR in the Chair.]
§ Clause 1:
§ Council on Tribunals
§ 1.—(1) There shall be a council, entitled the Council on Tribunals,—
- (a) to keep under review the constitution and working of the tribunals specified in the First Schedule to this Act (being the tribunals constituted under or for the purposes of the statutory provisions specified in that Schedule), and, from time to time, to report on their constitution and working;
§ LORD LUCAS OF CHILWORTH moved, in subsection (1) (a), after the second "Schedule" to insert: and administrative procedures involving an inquiry or hearing". The noble Lord said: May my first word in moving the first Amendment be one of apology to your Lordships for my absence during the Second Reading of this Bill? I can assure your Lordships that it was due solely to indisposition. Had I been here I should have left your Lordships in no doubt as to my attitude towards the Bill and the subject matter contained therein. In point of fact, I do not think I could have done otherwise to your Lordships who heard the speech I made on the Motion of the noble Marquess, Lord Reading, upon the Report of the Franks Committee. On Second Reading the Bill was described by the noble Lord, Lord Denning, as a new edition of the Bill of Rights and I find myself in no quarrel with that opinion. But I hold firmly the view that public administration is for the benefit of the public and not for the benefit of the Administration.
§ There is no doubt in my mind, after reading the evidence that was given by senior civil servants before the Franks Committee, and which is mentioned in the Franks Committee Report, that the battle between the individual and the Executive has reached a critical point, and 853 I have no hesitation in saying that if this Bill goes on to the Statute Book without alteration, the rights of the individual will have received one of the greatest setbacks in the lives of any of us in your Lordships' House. I have no quarrel with what the Franks Committee say, and the object of the Amendments in my name and those with which I am associated is to put more "Franks" into the Bill than it contains at the present time.
So that there should be no misapprehension as to what is in my mind, I would ask your Lordships' indulgence to quote some remarks from a source which is not usually quoted in your Lordships' House; but as the matter is so important I trust that your Lordships will allow me to read this passage. It is as follows [OFFICIAL REPORT, Commons, Vol. 575 (No. 158), cols. 417–8]:
We are all starting from the assumption that in determining the rights of individuals as against the rights of the authority there must be the plain language of Parliament, whether it is enshrined in a Statute or contained in delegated legislation, and that whatever is the tribunal that has to determine as between the individual and the State it must be bound by that language of Parliament and apply itself to ascertaining exactly what Parliament has said, either through the letter of the Statute or through the letter of delegated legislation, by ordinary canons of interpretation which would be used in any ordinary court in the land. Starting from that general assumption I feel that we, if we were the Government, would at once assent to the proposition that the right way is to test the various tribunals and inquiring bodies by reference to the three standards which the Franks Committee adopted—openness, fairness and impartiality. That is a method of approach which entirely commends itself to us on this side of the House, and I feel that I can speak without qualification for all my right honourable and honourable friends in so saying. Therefore, on both sides of the House we start from common ground.
§ That was said by the leader for the Opposition in another place in the debate upon the Franks Report which took place when the first Government pronouncement of its intentions was made public. I believe—and my opinion is endorsed by the Franks Committee—that the "language of Parliament," when it set up tribunals or inquiries, was that, whoever made the ultimate decision, whether it was the tribunal, the Minister or the Executive, there should be a process of public hearing and the citizen of this country should be allowed to come and make his complaint and state his case before a tribunal that was 854 independent of the Executive. In my view that is fundamental, and I believe that that is a strict and true interpretation—as indeed the Franks Committee so say—of the language and will of Parliament. That is why I believe that if this Bill as it is now written gets on to the Statute Book without alteration of the two fundamentals which I believe are enshrined in the first and second Amendments standing in my name the liberty and the rights of the subject will have received a setback and there will be a triumph for the bureaucracy, who are fighting hard to obtain and retain their hold upon various aspects of the inquiries and tribunals with which this Bill deals.
§ When the noble and learned Viscount the Lord Chancellor spoke on the Second Reading, with his usual charm he expressed his regret that I was not present and hoped that I should be present on the Committee stage. Here I am, and I sincerely hope that at the end of these proceedings the noble and learned Viscount will have found no grounds upon which to change his mind. The noble and learned Viscount gave the statistics—I would not call them the vital statistics, either of the noble and learned Viscount the Lord Chancellor or of this Bill. Of the ninety-five recommendations of the Franks Committee, with the exception of twelve in reserve, only four have been rejected. I might comment "What a four!" They are the four most important ones.
The noble Viscount said [OFFICIAL REPORT, Vol. 208 (No. 52), col. 585]:
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 constant review.
I can only conceive that the noble and learned Viscount, the Lord Chancellor was using the word "tribunals" in its narrow sense, and not in the sense that I use it, that any body of inquiry is a kind of tribunal; because in the next paragraph [col. 586] the noble and learned Viscount the Lord Chancellor said:
What we have done is to exclude tribunals which do not take decisions but simply report or make recommendations to Ministers.
I suppose the modern simile would be that in wishing to throw away the bath water the noble and learned Viscount has
thrown away not only the baby but the bath as well; because if we take out all the tribunals or inquiries which do not make decisions we take the vital bodies out of this Bill. I agree with the Franks Committee. There is really no quarrel with the conduct of the tribunals of this country, using the term "tribunals" in a narrow sense. I believe that the Franks Committee support the belief that they have done their job well. The only complaint one makes against them is sometimes a little procedural complaint; but by and large they have done their job. The reason why they have done their job so well is because they have been lifted above, and kept independent of, the bureaucracy.
§ The complaint which I have, in common with the mass of the citizens of this country, is not against tribunals as such but against those bodies, the administrative procedures and public inquiries presided over by departmental servants that have caused such grave concern. Those words "grave concern"—are not precisely my own. They are the words of the Permanent Secretary to the Lord Chancellor's Department, Sir George Coldstream, when he gave evidence before the Franks Committee. He said that there was grave concern in the country about the activities of these tribunals, as I call them; of administrative procedures, inspectors, and public inquiries, which are now such a big part in the life of the ordinary citizen and which are growing and will continue to grow. Yet the very section of this administrative machine which needs supervision and needs a statutory body to watch every movement of its procedures is excluded from this Bill: and the only thing this Council on Tribunals can do, under Clause 1 (1) (a) of the Bill, is to deal with matters referred to it by the noble and learned Viscount the Lord Chancellor. If that is implementing the report of the Franks Committee, then, so far as I am concerned, it is a strange use of language.
§ We have to restore public confidence. There is very little public confidence left to-day in these public inquiries. One has only to have an observant eye to see the Press reports of these alleged private inquiries, set up by the noble Lord the Minister of Power, who I am so glad to see is sitting opposite me this 856 afternoon and can hear precisely what I have to say: they border upon a farce. The Scots do it far better. One of the public inquiries appointed by the Secretary of State and held in Scotland had an independent inspector, and what was the evidence? The expression used in the inspector's report was that "the conclusion had to be reached" that the whole thing was pre-arranged. I say that it is more necessary for a statutory body to inquire into the activities of something in which the public have lost confidence than it is for such a body to inquire into the activities of those tribunals about which the public have no complaint.
Clause 1 says:
There shall be a council, entitled the Council Tribunals.—
(a) to keep under review the constitution and working of the tribunals specified in the First Schedule to this Act (being the tribunals constituted under or for the purposes of the statutory provisions specified in that Schedule), and, from time to time, to report on their constitution and working …
By my first Amendment I propose to put in, after "Schedule", the words:
and administrative procedures involving an inquiry or hearing".
I would not alter paragraph (b). There is nothing in this Bill that would prevent another "Crichel Down". It is only if the Lord Chancellor can be questioned in this House as to why such a procedure was not referred to this Council that we shall have the slightest hold upon it. But I hope I shall get the support of your Lordships, and also, I hope, of the Lord Chancellor, because, in the speech he made on Second Reading he said [OFFICIAL REPORT, Vol. 208 (No. 52), col. 593]:
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.
If, again, the noble and learned Viscount was referring to the tribunals in Part I of the First Schedule, I would say that there is no lack of public confidence concerned there. It is not that section about which there is a lack of public confidence, but the section to which I have just referred. That is where the lack of public confidence is involved; and unless the Lord Chancellor, or the Government, will agree to bring them under the supervision of this high authoritative body, the Government will never
succeed in getting the confidence of the public on this essential part of our administration.
§ The noble Lord, Lord Hylton (I regret that he is not in his place this afternoon), asked the noble and learned Viscount on Second Reading how he was going to follow—I almost said the "knavish tricks"; but that is not very apt—the circumlocutions of every Government Department which has the power to interpret this Bill as it desires. The noble Lord, Lord Hylton, asked the Lord Chancellor how he would know what matters concerning these administrative procedures to refer to this Council. All the forces of Scotland Yard could not keep the noble and learned Viscount informed. Will he go daily to the Council and say, "Please will you inquire into this? I do not think that the Home Office "—one of the biggest culprits concerned—" or the Minister of Power"—perhaps I should have reversed the order—" is interpreting this as I so desire."
May I give your Lordships an example? Much comment has been made about the circular that has been sent out by the Ministry of Housing and Local Government. The Franks Report said, without any equivocation, that the inspector's report should be published; that the inspector's report, the full text, should accompany the letter of notification sent by the Minister to the parties. And this is how that recommendation is now interpreted by this Government Department. Paragraph 22 of Circular No. 9/58 says:
Minister's decision and publication of report: the letter informing the parties of the Minister's decision will in future "—
in addition to describing the site and summarising the main points put to the inquiry—
state the inspector's findings and his recommendations, if any, and then give the Minister's decision.
That is not what the Franks Report recommended; it is only part of it. The words used in the circular are:
sate the inspector's findings and his recommendations, if any…".
That is to say, the Department, this particular Department, may interpret precisely as it desires the part of this Bill, or the part of the Franks Committee's Report, which is to be put through by administrative process; and every Government Department will be
able, in the future, to decide for itself what it is going to do. That is just one example.
§ Would it not be far easier to include the whole of the procedure, not only the statutory tribunals, which are independent, but also the administrative inquiries, which also, the Franks Committee say, should be independent? Would it not be better and more helpful for the Lord Chancellor to hand the whole job of supervising this process, even if only in an advisory capacity, to this Council? Here again, the noble and learned Viscount has not, in this Bill, interpreted the Franks Report. The Franks Committee wanted the Council on Tribunals to be executive; it is only advisory. Should that not be the first step in this great effort of ours to obtain the confidence of the British public for bodies which, in the eyes of 99 per cent. of the people of this country, are on a par with the High Courts? Why is it that the courts of justice in this country are held in such high esteem, yet these administrative inquiries are held largely in contempt? What I want the noble Lord to do is to give this Council on Tribunals the authority to supervise the whole of the matter. That is why I have put down this Amendment. I beg to move.
Page 1, line 10, after ("Schedule") insert ("and administrative procedures involving an inquiry or hearing").—(Lord Lucas of Chilworth.)
§ 3.18 p.m.
§ LORD DENNING
I should like to support this Amendment. This Bill is for tribunals and inquiries. At the moment, anyone reading it can see that it is a Bill for tribunals, but there is hardly a word about inquiries, and inquiries need it most. Tribunals deal with things like industrial insurance, national insurance, assistance money and so forth. Those have been working reasonable well, but they need tidying up. This Bill does it. But the real trouble has been with inquiries, compulsory acquisitions, planning developments and appeals, which are hardly touched upon in this Bill; and the reason is that the people so often think it is a foregone conclusion; that the inspector is a Ministerial inspector and the Minister may make his decision on facts which are brought in by other people after the inquiry has been heard. It is to 859 restore confidence in the system of inquiries that we need so much; and this Bill, while it deals with tribunals, leaves inquiries really in the hands of Ministerial circulars. One such document has been circulated already, and if you study it you will see that it deviates in many important respects from the recommendations of the Franks Committee.
The only place where inquiries are mentioned in this Bill is in the second paragraph to Clause 1 (1), which says that the Lord Chancellor may refer particular matters to the Council; whereas the Council have to keep under constant review the constitutional working of tribunals and make an annual report on them which can be laid before Parliament. Surely, if confidence is to be restored in these inquiries, they ought to be brought under the review of a standing independent Council. If they are constantly under review and an annual report is made on them, it will tend to emphasise to some extent that they should be independent. If particular matters only are referred, presumably the Government Departments concerned will be consulted on those matters before they are referred. A report is to be made on these matters, but, so far as I can see, nothing is specified regarding a particular report. If these inquiries were brought under a standing Council on Tribunals and Inquiries, which is independent, a great deal might be done to restore confidence in them. At all events, the question runs through the whole of this Bill: is it to be confined to tribunals or ought it not to be extended, as the title suggests, to inquiries also?
§ LORD SILKIN
Before the noble and learned Viscount replies, may I say that this is an Amendment which seeks to extend the functions of the Council that is being set up, so that, in a general way, it may supervise inquiries as well as tribunals? In Clause 1 (1) (b) the Council will do that if a particular matter of administrative procedure involving an inquiry or hearing is specifically referred to them. Therefore, it will be within their scope in the sense that they will be examining a specific thing. The Amendment seeks to give them general power on their own initiative to investigate inquiries as well as tribunals. When they are already being given power to deal with specific instances, it does not seem 860 to me to be asking a great deal to give them power to deal also with the general question. Therefore I have high hopes that the Government will see their way to accept this Amendment.
§ LORD BALFOUR OF BURLEIGH
I sympathise a good deal with the desire that has been expressed that the functions of the Council should extend also to inquiries. In my innocence, I thought that this point was covered by subsection (1) (b) of Clause 1, and I am looking forward to hearing what the noble and learned Viscount will have to say on that matter. There is only one thing I should like to say further, in reply to the noble Lord, Lord Lucas of Chilworth. I truly do not think he is right in saying that the intention of the Franks Committee was that this Council should have executive power. What we said in our Report was:Our most important recommendation in this Part of the Report is that two standing Councils should be set up to keep the constitution and working of tribunals under continuous review.Speaking as a member of the Committee and subject to correction, I truly do not think it is the expressed intention in our Report that this Council should have executive powers.
I do not think the noble Lord, Lord Lucas of Chilworth, has the right answer; but what he and other noble Lords have said about the anxiety of the general public about inquiries being far greater than that which has been aroused about tribunals, is true.
§ THE LORD CHANCELLOR
May I take the words of my noble friend Lord Saltoun? I agree with his general weightage of public disquiet. Before I conclude, I hope he will agree that I have this matter very much in mind. But I should like to come back to the first point and express my regret that the noble Lord, Lord Lucas of Chilworth, was not with us on Second Reading, and my regret at the cause of his absence. From the powerful speech which we have just enjoyed, it is obvious that the cause has diminished and I hope is now entirely removed. In fact, I hope that he is as healthy as his oratory—and I could not wish him anything better than that.
I think that the noble Lord did not give sufficient weight to the terms of reference of the Franks Committee—I 861 believe that my noble friend Lord Balfour of Burleigh had this point in mind—and the way in which the Committee approached their functioning. The noble Lord will see that the terms of reference winch I gave to the Committee were to consider:
Believe me, this is not a stalling point. I hope noble Lords will agree that the members of the Committee approached each of those constituents of their terms of reference with proper attention. If ore looks at the Table of Contents of the Report, one sees that following the Introduction, Part II deals with tribunals in general, Part III with particular tribunals. and Parts IV and V with administrative procedures, so that it would be wrong to say (with great respect to the noble Lord, Lord Lucas of Chit-worth) that the functioning of tribunals as such is not a matter of importance. I believe it is a matter of great importance, and although I accept the weightage of my noble friend Lord Saltoun, there were undoubtedly a number of cases, as the evidence before the Committee shows, where the actual constitution and functioning of tribunals were considered to be matters of importance on our general point—that is, the fair balance between the individual and the State.
- (a) the constitution and working of tribunals other than ordinary courts of law constituted under any Act of Parliament by a Minister of the Crown for purposes of the Minister's functions, and
- (b) the working of such administrative procedures as include the holding of an inquiry or hearing.
The only slant of Lord Lucas of Chilworth's speech with which I should quarrel is the impression that he gave of arrogating to himself primarily the desire to see that the position of the individual is improved. After all, I am entitled to a little credit. I set up this Committee; they reported in July; by October the Government of which I am a member had accepted most, rejected four, and reserved for consideration twelve others of their recommendations—a speed which is unequalled in the history of government in this country. To have done that is some earnest, I think, of my desire that this problem should be dealt with. All that I am asking the noble Lords who have spoken is to consider what the Franks Committee actually said. The Committee drew a distinction between tribunals, which 862 were dealt with in Parts II and III, and administrative procedures, and I am trying to follow the recommendations which they have made. So far as tribunals are concerned, they recommended the constitution of this Council, and this Bill has as its purpose, as any one who looks at the Long Title will see, the constitution of the Council as was suggested.
In paragraph 242 of the Report the Franks Committee said:The broad principles enunciated…in this part of the Report should ordinarily be applied to other procedures which are clearly within the second part of our terms of reference…I entirely accept that. The principles referred to in that paragraph, as I understand them, are openness, fairness and impartiality. I do not qualify it, but I do say this, as I ventured to say to your Lordships before: that fairness implies reasonable speed, because if, in the desire for absolute and perfect fairness, you allow your procedure to slow down results, then the delay will in itself cause injustice to the party affected. Therefore I say that the principles are explicitly openness, fairness and impartiality, and that they imply that there should be reasonable speed in order that the position of the person affected should be determined without delay.
What the Amendment would do in this case is to require the Council on Tribunals to keep under review all the administrative procedures instead of those referred either by myself or by the Secretary of State for Scotland. I want, first of all, to show your Lordships that the distinction which is made by the Franks Committee between tribunals, in the sense used in Parts II and III, and administrative procedures, is a sound one. The distinction is between tribunals, which exercise an independent jurisdiction, and inquiries, which form part of the process by which a Minister exercises his jurisidiction. That is the distinction which the Franks Committee suggested. Their recommendation was that the Council should have general supervision only of tribunals, and that in relation to administrative procedures the Council should be given certain responsibilities. If your Lordships would be good enough to follow me from the Report you will find the general statement in paragraph 43, where they say:These general statements give expression, in the field of tribunals, to that fair play for 863 the citizen which it is both the citizen's right to expect and the duty of good administration to provide. We shall now attempt to work out in some detail the proper application of these principles.Then they refer to the Councils; and if your Lordships will turn to the fifth from the last line of the paragraph, they go on to say, moving from tribunals to administrative procedures:In Part IV we recommend that the Council should also be given certain responsibilities in relation to administrative procedures.So that they draw that distinction. The responsibilities which the Committee recommend the Council should be given are specified in later paragraphs of the Report. The first is the formulation of codes of procedure—and your Lordships will find that in paragraphs 310 to 312 of the Report. Then there is the basis for the award of costs, which is in paragraph 326. These are the matters which they suggest should be referred to the Council on Tribunals. I think this answers the point of my noble friend Lord Balfour of Burleigh. I do give the undertaking that I will refer these matters to the Council on Tribunals; in other words, I will follow the Franks Report.
I am grateful to noble Lords opposite for having put down these points and so enabling us to have a discussion on them, but I want to get the views of the Council on Tribunals; I want to have these novel matters considered by the Council before we come to the position of legislating upon them. I hope your Lordships will not think it unreasonable for me to point out that what I am doing is following what the Franks Committee suggested in this regard.
Let me now consider it from the point of view of the practical result. The Council on Tribunals is a new body. As I told your Lordships, I do not want it to be too big, because I believe if it were it might defeat its own objects. I have in mind a Council of some ten to fifteen, with the additional provision I mentioned to your Lordships with regard to a Scottish Committee. That body will have a great deal to do with regard to the tribunals in all the various provisions that are made in the Act. I think it is a sound proposal that the Secretary of State for Scotland and I should consider the matters which we are going to refer. The difference in the approach which I venture to put to your Lordships is that, believe 864 me, I have not any reluctance to refer anything to the Council on Tribunals; I am perfectly prepared that they should consider the points. I think the only difference, judging from the Amendments which have been put down, is that I want certain things to be considered by the Council before I am prepared to put them into legislative form. By that means I think we shall obtain greater flexibility and accuracy. I have said that I am prepared to ask the Council to formulate a code or codes of procedure for inquiries relating to land on the lines recommended by the Committee.
If your Lordships would look at recommendation 72 of the Franks Committee on page 96 of the Report, you will see that it says:The code or codes of procedure for inquiries should be formulated by the Council on Tribunals and made statutory; the procedure should be simple and inexpensive but orderly.I have already said that I shall refer that point. I want to hear what the Council have to say, and only then to consider making these codes statutory, which is exactly what the Franks Committee recommend. That is the first point. Then there is the question of arrangements with regard to the award of costs.
§ THE EARL OF SWINTON
As paragraph (b) is now drafted, would it be competent for the Council, if they thought there was some shocking matter of a procedural kind which had not been referred to them by the Lord Chancellor or the Secretary of State for Scotland, and without keeping everything under continuous review, to consider and report to him as a Council on that particular matter?
§ THE LORD CHANCELLOR
It would not, as the clause is drafted; but I should be pleased to consider that point, because I imagined and hoped that, whatever be the form, the Council would suggest to my right honourable friend or myself any point that had come up and we should immediately refer it. But if it were felt necessary to have a channel facing the other way, I should be quite prepared to consider that.
§ LORD SILKIN
The noble and learned Viscount will appreciate that that is the 865 whole point of the Amendment. If he concedes that, it is simply a matter of drafting.
§ THE LORD CHANCELLOR
The Amendment which the noble Lord, Lord Silkin, has on the Order Paper would go a great deal further than that. As the noble Lord knows, I dislike taking technical points on the drafting of an Amendment but, as drafted, this Amendment would—as, indeed, is implicit in the question of my noble friend Lord Swinton—bring these inquiries under the supervisory position, which is quite a different matter; it would put them in the same position as the tribunals. That is not what the Franks Committee recommended.
The noble Lord, Lord Silkin, said that that is the point of the Amendment. Were it the only point to the Amendment, I should approach it in a different way. I am perfectly prepared to consider the limited point which I understood my noble friend Lord Swinton to make. That is, that paragraph (a) would be limited to keeping under review the constitution and working of the tribunals, but that to paragraph (b), which gives them the rightto consider and report on such particular matters as may be referredthere should be added some such words as:and also having the right to suggest matters on which they might report"—a two-way traffic.
§ THE EARL OF SWINTON
A two-way traffic. I think it would not be satisfactory just to say that they could ask the Ministers whether they would like to refer it to them. I think the Lord Chancellor used a most happy phrase—to make it a two-way traffic. Ministers could refer it to them or, if they thought there was something of great importance, they should consider it and send it to the Minister.
§ THE LORD CHANCELLOR
I would be perfectly prepared to consider that matter. I should like to look at the form of it and discuss it with those who have been helping me on the Bill. That seems to me to have the great advantage of being in accordance with the Franks Committee's own recommendation, that whereas the Council should be supervisory over the constitution and working 866 of tribunals, it should have certain responsibilities with regard to the processes in Part II. That I should be perfectly prepared to consider. I do not want to tie myself down to words, but I will consider it before the next stage. I wanted to make clear (and I hope it shows the good faith in which I am approaching the matter) that, whether they suggest it or not, I shall certainly refer these two important questions—namely, the formulation of a code or procedure for inquiries and the question of costs—to the Council on Tribunals, so that we may have the advantage of their assistance. I hope that in that spirit the noble Lord, Lord Lucas of Chilworth, will not press the matter.
There are only two of his remarks with which I should like to deal, because although they are not strictly on the Amendment they are important general points. First of all, the noble Lord mentioned Crichel Down, which was an ad hoc inquiry. The inquiry was held by Sir Andrew Clark, who was absolutely independent. He is one of the leading practitioners of the Chancery Bar, and I do not think that those who take the view which Lord Lucas of Chilworth has so eloquently expressed objected to having an independent Q.C. to hold the inquiry. Nor does he object to the critical nature of the Report. What I do venture to say on that point is that it was the circumstances of requisition and holding of land by Government Departments which caused the trouble. Fortunately, we have now abandoned great stretches of requisitioned land, and by the end of this Parliamentary Session, when we have passed the two Bills that are in another place, as I hope we shall, we shall be able to abrogate entirely the requisitions which gave rise to such a problem as took place in the case of Crichel Down. In other words, we shall have got to the root of the problem and prevented it from recurring.
The other point is with regard to the inspector's report. I was extremely anxious, as I said before Christmas, that we should bring into operation the true spirit of Franks at the earliest possible time. Your Lordships may remember that I said I hoped to get it brought into operation by January or February, which was remarkably quick timing, though I say it myself. That was why we arranged that the Ministry of Housing and Local Government should issue that circular 867 which gives to the private individual concerned the inspector's finding and makes clear to him that, if the Minister differs from the inspector, he knows where the difference is. The only point I wanted to add to what the noble Lord, Lord Lucas of Chilworth, said was that my understanding of the circular is that the individual, having had his letter, can, either at the headquarters of the local authority or some other place, see the full report, with the maps and plans, so that either he or his solicitors can see whether the letter he has received fairly states the matter.
I would ask the noble Lord to consider this point and to discuss it privately with his noble friend Lord Silkin, who has such vast experience as a former Minister of Town and Country Planning. I doubt whether, in a number of cases, it helps to throw several thousand words of a report at an individual, to send him plans and the like. It is far better to give him a summary of the report and then let him check with the full report any points on which he is doubtful. I am sure the noble Lord, Lord Lucas of Chilworth, did not want to suggest that there would be any deliberate hiding of the report; but I wanted to make clear to him that that would be impossible, because the full report would be available on the point.
§ LORD SILKIN
I am absolutely in agreement with the noble and learned Viscount. I think it is right to say that.
§ THE LORD CHANCELLOR
I am glad, because I am sure it is not any question of wanting to hide or mislead. It is a question of giving the best assistance we can. I hope that, in those circumstances, on my undertaking to consider the point raised by the noble Earl, Lord Swinton, the noble Lord will not press this Amendment.
§ LORD LUCAS OF CHILWORTH
I am grateful to the noble and learned Lord Chancellor. May I take the last point first? To me it is not a question of whether or not it is useful to throw a hundred or a thousand or ten thousand words to him. That is beside the point. There may be different opinions from different objectors. My point in quoting the circular was to show how, in the absence of a strict code of procedure, the spirit could be interpreted by every 868 Government Department in a different way to suit their own ends.
§ THE LORD CHANCELLOR
Would the noble Lord help me on this point? Does he really think that it would be better to go to the expense of sending to all objectors these thousands of words, with the plans, rather than give them a summary and let them look at the report themselves? This is, to me, a practical matter, and I should like to try out what is set out in the Bill. If it is found not to work, I am willing to revise it. It is entirely a practical problem.
§ LORD LUCAS OF CHILWORTH
My only point was to illustrate why I raised this matter. The Franks Committee Report said that a copy of the findings shall be sent. If the noble and learned Viscount wants to pray in aid the strict letter of the Franks Report, in answer to one part of my argument, he cannot, in answer to another point, say that he has a better interpretation than the Franks Committee themselves. That was the only reason I brought up that point. If the noble and learned Viscount will read the speech of the Lord Privy Seal, which was the first Government pronouncement on this matter, and his own speech, made in the debate on the Motion of the noble and learned Marquess, Lord Reading, he will see why the impression remained with us, and with the House as a whole, that administrative procedures and inquiries were going to be subjected to the jurisdiction or the oversight of the Council. Not a word was said to contradict us. If I may reply to the noble Lord, Lord Balfour of Burleigh, what the noble Lord, member of the Committee though he may be, has overlooked, is that the Franks Committee Report said that the Council on Tribunals should actually appoint the members of the tribunals. Is that not "executive" action? If it is not, I know of no other word. I am sorry to have a better interpretation of the Franks Report than one of the Committee's own members.
I am not going into lengthy arguments, because the noble Earl, Lord Swinton, really put his finger on the principle I wanted to get over: that on any aspect of administrative procedures the Council on Tribunals had their hands tied behind their backs until the Lord Chancellor untied them. If they had the right to 869 say to the noble and learned Viscount, or to the Secretary of State for Scotland, "This is a public scandal; this really ought to be altered", I think it would go a very long way to satisfy me. If the noble and learned Viscount reads the correspondence columns of The Times, he will have seen only in the last two or three days letters complaining about the way that local authorities, in some cases—Government Departments, in others—are not carrying out what the noble and learned Viscount has said is the spirit of the administration of this Franks Committee Report. If he will permit me—I feel sure he will—to have consultations with him between now and the next stage, when he has had time to give this mature consideration, I could put down another Amendment which might meet his wishes and, as I think, the wishes of the whole House.
§ LORD CHORLEY
Before the noble Lord withdraws his Amendment, I should like to intervene for a moment. I am a little puzzled to know why the noble and learned Viscount, in view of what he said, has resisted the Amendment now, because he has agreed that the Council on Tribunals should have the right to deal with any matter which appears to them to be of importance. It is just a question of finding appropriate words.
§ THE LORD CHANCELLOR
May I explain? If the noble and learned Lord has the Bill in front of him, he will see the difference is this: that the Amendment proposed by the noble Lord, Lord Lucas of Chilworth, puts in at line 10 additional words to make subsection (1) (a) read:to keep under review the constitution and working of the tribunals…and administrative procedures….Paragraph (b) says:to consider and report on such particular matters as may be referred to the Council…As I understood Lord Swinton's proposal, it was not that there should not be general supervision under (a), but that the Council should have the right under (b) to consider and report on matters referred by myself or my right honourable friend and also on matters which seem of importance to them.
§ LORD CHORLEY
I perfectly appreciate that. The Amendment puts on them the general duty of considering these procedures as a whole. The suggestion of the noble and learned Viscount would enable the Council to pick out certain matters which seem to them to be important and to consider them, which is going, I think, half-way. I should have thought it was sensible to go the whole way while we are at it. But one of the Council's difficulties, if it is left on the basis of their being allowed to select matters which they think important, is that they will not be able to go into a matter in the detail which is important in this sort of case unless they have the powers which the Amendment seeks to give to them, because it is impossible to tell from vague reports which appear in the newspapers whether there has been a failure of justice or fairness in a particular case. What is needed to enable them to look at the case effectively is power to bring before them the civil servants and to call for the documents. It is not enough that they should have only a newspaper report or something which somebody has said because he thought he had been subjected to an injustice. Surely the Council must have power to send for the civil servants who have been responsible and to call for the papers which have been, so to speak, before the officer holding the inquiry. Therefore the Council must be given something in the way of powers. Otherwise the whole thing will be futile. If the Government are going to do that, I would suggest that they "go the whole hog" and accept the Amendment, and give the sort of general powers which the Amendment seeks to confer.
§ THE EARL OF SWINTON
With great respect. I must say that I entirely dissent from the noble Lord. If I were a member of this Council, I should not at all wish to have the duty that he has spoken of. I should wish to have put upon me the duty under (a), but if there is also the duty under (b) it means that an enormous amount of work is added to the work of the Council—they have to keep under review every sort and kind of inquiry which the Minister or anybody on his behalf conducts. In fact, and in practice, it will be perfectly well known to the Council if there is something which is a scandal and which 871 ought to be looked at. In nine cases out of ten the Lord Chancellor or the Secretary of State will say to them, "I wish you would look at this." It may be that a case is not referred to them—most likely a complaint is lodged with them and I take it that, if they think that something is worthy of inquiry and report to the Lord Chancellor, then (the Lord Chancellor will correct me if I am wrong) they would have the same powers of investigation under (b) as they would under (a). Is that not right?
As I said something before, I should like to say that, on reflection, I am convinced that the Amendment of the noble Lord, Lord Lucas of Chilworth, would be quite unworkable. It is better to leave it to the noble and learned Viscount and wait until the Council is set up.
§ LORD LUCAS OF CHILWORTH
I rest quite happy with the assurance of the noble and learned Viscount, and I ask leave of the Committee to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 1 agreed to.
§ Clause 2 agreed to.
§ Clause 3:
§ Chairmen etc, of certain tribunals: appointment by Lord Chancellor or Lord President
§ (6) In this section "the appropriate authority" means the Minister who apart from this Act would be empowered to appoint or select the chairman, person to act as chairman, members or member of the tribunal in question
§ 4.3 p.m.
LORD LUCAS OF CHILWORTH moved, after subsection (1) to insert:
(2) Where under any statute the appropriate authority is enabled to make or confirm any order or make any determination which interferes with or takes away the legal rights enjoyed by any person prior to such order and before making or confirming such order is empowered to appoint an inspector or other person or persons to inquire or hear representations and report upon the matter the inspector or person or, if more than one are so appointed the chairman, shall be selected by the appropriate authority from a panel of persons appointed by the Lord Chancellor.
§ The noble Lord said: In my view this is the second fundamental part of this Bill. Here, again, we come to the question of the principle in which it is 872 asserted to be the desire of Parliament that the administrative procedures and inquiries which are held should be conducted with fairness, openness and impartiality. I argue, as I have argued in your Lordships' House in season and out of season, that when an inspector holds a public inquiry into certain aspects of his Department's work or policy it cannot be construed as being impartial and it is not held by the public as being impartial.
§ There are some noble Lords who would not want me to go into all the arguments that I have gone into with the noble Lord, Lord Mills, as Minister of Power, but I can assure the Committee that this is a fundamental grievance held by the British public. They hold the courts of this country in high esteem and they go to the courts because they know they are going to get a fair and a square deal. They may not agree with the verdict, but there is very little complaint afterwards. But, with one or two exceptions, I have never known any objector who has gone to a certain class of inquiry—I will be quite frank with the noble Lord and say that I refer to the erection of super-grids over this country—who has ever come away feeling that he has had justice.
§ I make no complaint whatsoever against the inspectors. They are not supposed to be impartial; they are not there to see justice done, but are there to see that their Minister's policy is pursued and to report back the objections to the Minister. I do not believe that it was ever intended that they should be impartial or independent. They have been looked upon as part and parcel of the administrative process of the Department. But time has gone by, and this principle of public inquiry has gone on with delegated legislation. It is now held by the public to be somewhere where they can go and complain. To-day, not merely Government Departments but nationalised industries go before these inquiries armed with "silks" and expert witnesses to frighten away the small objector from the village, and they have succeeded in so doing. Do not let us beat about the bush. This is where this system fails in our modern civilisation.
§ I have no desire whatsoever to remove ministerial responsibility. It may be better—it would serve precisely the same purpose—that the Minister should set up 873 the public inquiry or hearing of the nature I am talking about and should not refer it to a statutory tribunal which is independent—that is his decision and he is responsible to Parliament for that decision. But I suggest to the Committee that the pros and cons, the views, the grumbles and the grouses of the citizens should be presented to him by an individual who is not a servant of his Department but is impartial and will see that the small man, whoever he may be, gets a fair deal. When some people talk about property owners they always envisage the rolling acres; but a property owner can be the man who owns a little garden. Is he not entitled to a fair and square deal? He cannot afford to brief counsel to match the counsel of the people who are spending, not their own money, but the taxpayers' money.
§ The argument against this proposal, as was pointed out by the Report and in the evidence given, is that it would mean that if we were to make an independent inspectorate and brought it under the Lord Chancellor, it would put an undue burden upon the Lord Chancellor's Department. I do not accept that at all. If we accept the number that came out in evidence, we find that there are eighty-eight inspectors connected with the Ministry of Housing and Local Government which holds 5,000 inquiries a year. They are all excellent, trained men, some of them engineers, skilled architects and so on. Why can they not be brought into a pool appointed by the Lord Chancellor, so that any Minister who wants to hold an inquiry of any kind, from the Minister of Fuel and Power down to the Minister of Agriculture, Fisheries and Food—or upwards as the case may be—can select one of these inspectors?
§ What happens to-day in Lord Mills's own Ministry of Power? The only inspectors that he possesses, so far as I have any knowledge, are trained engineers, and one of the last things to be dealt with by any inquiry which he sets up is engineering. The major part of the objection is on amenity. Ought we to have two inspectors? The noble Lord has a delightful sense of humour and has always taken humorously my references to Tweedledum and Tweedledee. There is a case in point, and that is why I put a Question to the noble Lord the other day to see whether I could get him to produce the inspector's report on the 874 inquiry at Trawsfynydd—my noble friend Lord Macdonald of Gwaenysgor has not fainted so my Welsh pronunciation passes muster. What happened? The inspector holding the inquiry was one of the inspectors of the noble Lord's Ministry. That inspector had with him one of the senior inspectors of the Ministry of Housing and Local Government, because the main point was one of amenity.
I can give the House only the report which I have, and I rely upon the Press. The noble Lord's own inspector made what I thought was a most improper comment; it would have been improper had he been an independent inspector but it was not improper because he was not independent. Counsel for the National Farmers' Union was cross-examining witnesses upon the very great disturbance in that area for farmers, because of the radioactive risk to cattle; the National Farmers' Union had gone to the expense of briefing counsel. According to the Liverpool Post, the inspector interjected:
There is no need to worry about that. The Government are going to take care of all this risk.
What did he know about Government policy? The reason was that he, like the majority of these inspectors who go down, supposedly independent, are briefed by their Department—and quite rightly, as the position exists to-day. But nobody is going to convince the public who know of this that an inquiry held under that guise is impartial. Of course such inquiries are not impartial. They are not intended to be.
§ What did this inspector know of the intentions of Her Majesty's Government? Her Majesty's Government can do nothing. They cannot stop radioactive risks of atomic power stations. They can bring in legislation statutorily to penalise those who allow it. But that intervention came, despite the fact that the sole purpose of that inquiry was so that people who were going to be affected could come and say how they were to be affected and what loss to livestock they would sustain if they were. I believe it would have been very useful for the Minister to know of that at some future date when he has to come to his decision. I do not want to interfere at all with that decision. The Franks Report says specifically that the inspectorate should be appointed to a panel by the Lord Chancellor and should be 875 drawn from this panel. The Law Society and the Bar Council support that view. Everybody supports it, and it would do away with duplication, for we should not have to have two inspectors there. When amenity was the subject of the objection a man versed in (that would take the inquiry.
§ Why will Her Majesty's Government not follow their precept of fairness, openness and impartiality by accepting this recommendation of the Franks Committee which will receive the whole hearted support of the public? The public will then feel that they will receive the same protection as they would have in courts of law. They would not feel that they had to go to great expense and have legal representation so that lawyers could counter lawyers. It would make for far quicker working and a far more satisfactory state of affairs. I hope that the noble Lord will look into this matter again and see whether he cannot build this up and have what might be called a quasi-judicial inquiry system set up in this country, similar to our ordinary courts of law. I beg to move.
Page 3, line 34, at end insert the said subsection.—(Lord Lucas of Chilworth.)
§ LORD BALFOUR OF BURLEIGH
I must tell your Lordships that I believe that on this Amendment the noble Lord has completely made his case. There are arguments in favour of Departmental inspectors. The whole case was fully put before the Committee by the Departments and others, and the full arguments are set out on pages 64 and 65 of the Report. I do not wish to say more except that I believe the case is conclusive and I support the Amendment proposed.
THE MARQUESS OF READING
I want to add only one word because I raised this matter on a Motion which I put before the House last November. I, too, believe that a case is made out in favour of this proposed Amendment, or at any rate the principle underlying it, although I am not particularly attracted by the actual wording. I can put my argument in very few words. I still think, as I thought before I moved my Motion in November, that it should be the object of all these proceedings to remove the shadow of the Minister from these in- 876 quiries and to make it apparent to the public at large that these inquiries are absolutely untainted by the Department, and that the matter is approached from an impartial and unprejudiced point of view. So long as the Minister has a hand in the appointment of inspectors that impression will not be given to the public.
I believe that most of us agree with the sentiments expressed, but I am not quite sure that the Amendment of the noble Lord, Lord Lucas of Chilworth, goes as far—
§ LORD LUCAS OF CHILWORTH
All my Amendments are the work of an amateur and a bad one at that. It is the principle which I am putting forward. I am not tied to the wording.
This is not a drafting point but a point of principle, because, unless I have misread the Amendment, the Minister will still have an important part to play in the selection of the person in charge of the tribunal, because he will be selecting from a panel appointed by the Lord Chancellor. Surely if, as my noble friend Lord Reading said, we want to get the shadow of the Minister completely off this type of appointment, ought we not to have the appointment made by the Lord Chancellor himself, or by rota, or something like that? As the matter stands, the shadow of the Minister is still there.
§ 4.21 p.m.
§ THE LORD CHANCELLOR
This is one of the most difficult questions which we have to consider, and I must ask your Lordships to face up to the real problems of the Government of this country. I have the greatest sympathy with the desire for impartiality, as I have stated. Let us, in fairness to the inspectors whom we are discussing, make one thing quite clear. The Franks Committee said, in paragraph 292 of their Report, that there was no actual complaint about competence or impartiality. Whilst this is a very serious question of justice appearing to be done, it is not an allegation that justice has not been done by the inspectors who have acted. I think it is fair to say (and the noble Lord, Lord Lucas of Chilworth, will correct me if I am wrong) that there are really three categories that we have to consider. First of all, there is the corps of inspectors under the Ministries of Housing and Local Government and, of course, Town and Country 877 Planning. There are, secondly, the technical inspectors, such as are used and employed by my noble friend Lord Mills; and there are, thirdly, the ad hoc inspectors who are selected by various Government Departments.
As I understand it, no one has any objection to the ad hoc inspectors. In fact, the Committee say that their employment is the practice with regard to the Scottish Office and the Ministry of Education; and they say, at the beginning of paragraph 304:We do not wish to disturb the present practice in Scotland,although they contemplate that in the future a corps of inspectors might be instituted. But I should have thought that those who employ ad hoc inspectors—for example, the Scottish Office, as I think Lord Strathclyde will bear out—usually engage a member of the Scottish Bar, to hold the inquiry. Of course he is entirely independent, and I do not think there is any objection to that; so I put them on one side. The main objection is to the inspectors employed by the Ministry of Housing and Local Government.
May I remind your Lordships of what the Franks Committee suggested? Perhaps your Lordships will look at Recommendation 70, which I will venture to read because it is very important. It says:The main body of inspectors in England and Wales should be placed under the control of the Lord Chancellor, but inspectors may be kept in contact with policy developments in the Departments responsible for inquiriesThen the Report goes on to say what I have just dealt with; then it talks about the corps of inspectors. But the important point—and I do not think that, even now, this has been fully appreciated—is that the Franks Committee recommended that the inspectors should be kept in touch with the policy developments of the Department. In other words, what would happen, if the present Amendment (or some other form of it) were adopted, would be that these inspectors would be nominally under my control but would in fact be geographically situated in, or next door to, with a communicating passage, the Ministry of Housing and Local Government. They would spend all their time looking at the papers coming from the Ministry of Housing and Local Government, in order to keep in touch with the development of policy, and, of course, at the papers they would have to consider before conducting their in- 878 quiry. I hope that if any noble Lord has any doubt on that point he will take me up on it, because I understand that that is admitted ground, and there can be no dispute as to that.
§ LORD LUCAS OF CHILWORTH
In time that could be. But consider the inquiry in North Wales. The whole object of that inquiry was on an amenity, and the inspector who conducted it knew no more about amenity than my foot. He was an engineer, and a very brilliant engineer. But what happened? He had to have with him, to sit and hold his hand, the chief inspector of the Department which had amenity under its wing. This is what went on there. The inspector from the Ministry of Housing and Local Government did what a proper, independent inspector would do—he cross-examined the witnesses on the amenity aspect, because he wanted to bring out the facts.
§ THE LORD CHANCELLOR
But the noble Lord is not dealing with my point. The point I was making was that it is accepted both by the Franks Committee and by everyone else that this corps of inspectors should be kept in touch with the Department. What I was saying was that if anyone denies that, I should like him to say so.
§ LORD LUCAS OF CHILWORTH
It is not a specific Department; it is all the Departments which have the power of appointing inspectors.
§ THE LORD CHANCELLOR
That is what the noble Lord says, but it is not what the Franks Committee say.
§ THE LORD CHANCELLOR
No. What we have got to face is this. I am considering the Ministry of Housing and Local Government, and gave the figures to the House on a previous occasion. No one has disputed them because they are indisputable. I said then, on November 27 last [OFFICIAL REPORT, Vol. 206 (No. 11), col. 585]:I consider the key to the problem is expressly recognised by the Franks Committee in paragraph 303: that the Inspectors must be 879 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 have no complaint about the way in which they did their work.I do ask noble Lords to consider that I cannot do certain things, as a responsible Minister. I have been a Minister of the Crown for ten years of my life, and therefore I know something about the way the Government work. I have also devoted (I ask my noble friends to believe this) practically thirty years of my life to trying to improve the position of the individual; it has been one of the themes of my political life. But I cannot condemn the people who have to have these inquiries, whose land may be affected, to the overwhelming delays that would occur unless what is recommended by the Franks Committee, and endorsed by those experienced in government takes place.
That is the problem: somehow we have to maintain the close relationship between the inspectors and the Department. It is no good offering freedom as an emetic, a freedom which is going to mean that justice is denied because of the delays it involves. I have tried to face the problem in this way: what will give the maximum independence to these inspectors who have to work in this way. What we have done is to provide that full-time inspectors of the Ministry of Housing and Local Government will be appointed only with the approval of the Lord Chancellor. Permanent inspectors, in any event, are recruited independently by the Civil Service Commissioners. They can be appointed only with my approval and dismissed only with my consent. I ask your Lordships to consider that by this solution I have done all I can. I ventured to say that this is not a formality. I would ask your Lordships to accept that my predecessors and I have always regarded this as a matter of high responsibility. I ask your Lordships to say that we have tried to meet the spirit of the Report, while meeting the necessity, which the Report recognises, of this method of working which will prevent delays.
I have dealt with ad hoc inspectors—there is no objection to them. As regards 880 technical inspectors, I have always found that inspectors with technical qualifications are not therefore Philistines on every other point. Just as mathematicians are traditionally supposed to be lovers of music, I have no doubt that engineers have their other side. But, of course, I do not think that that is the real answer. Where amenity problems occur, the technical inspectors sit with general inspectors accustomed to dealing with these matters. From my experience, when I had inquiries before the Electricity Commissioners—I remember appearing before my noble friend Lord Hurcomb—I appeared with someone from the Ministry of Town and Country Planning. I hope the noble Lord, Lord Silk in, will not object to my reminding your Lordships that on page 100 of the Report you will find a powerful reservation on his part on this point. I hope I have done justice to the reasons, which I believe are of importance to the ordinary litigant and for which I am sorry that I cannot accept this Amendment.
§ THE EARL OF SWINTON
This is a very difficult case and one to which all of us, who have had experience of administration, should address our minds. I agree that nothing arises about ad hoc inspectors, but technical inspectors are in a different position, because they must be in close touch with their Departments, not only on policy but on all sorts of technical details, though I do not think that we are really worried about either of these cases. The bulk of cases are those concerning inspectors of the Ministry of Housing and Local Government, upon whose findings and recommendation so much turns affecting the rights and interests of the individual. I appreciate that the noble and learned Viscount has gone a long way in this matter—if I may say so, as one also who has lived in Arcady, I daresay he has had a bit of a tussle with the Departments in getting so far. I do not think that any noble Lord on any side wants to call in question the competence and integrity of these admirable public officials, who do their work excellently. The noble and learned Viscount put his finger exactly on the spot—if I may give him a Roland for his Oliver—when he said that it is not only important to do justice (because in ninety-nine case out of a hundred there is no question about doing justice), but even more important 881 to appear in every case to be doing justice.
Speaking as an old Minister—though I have never been Minister of Local Government—I would say that a Minister cannot abrogate his responsibility. The decision is his. He is perfectly entitled to dissent from the man who conducts the inquiry, but it is a Ministerial decision for which he takes full responsibility. And there are many cases in which it is desirable that Ministers should make their decision without an inquiry. If there is a fault in administration to-day—I am not talking Party politics—it is the unwillingness on the part of Ministers to make up their minds, take firm and clear-cut decisions and adhere to them. This is not a criticism of any particular Government. I should have thought that if a Minister had an inspector reporting, not on a technical engineering matter but on a matter concerning the interests of an individual—his property or the amount of compensation or whether land should be taken—the Minister would want to have two things: first of all, the most independent report he could get from the most competent man he could find to conduct the case; and, secondly, when he came to make his decision, the knowledge that his decision as Minister vis-à-vis the individual would be made responsibly, after considering his inspector's report and with no possibility of anything having gone on behind the scenes.
Again I am not saying that things happen wrongly. As a rule, that does not happen—in fact, I would say that things never happen wrongly where there is a responsible Minister and a Civil Service with the tremendous traditions of our Civil Service. It is said that these inspectors must be in close touch with Government policy; and I agree with that. But what is meant by being "in close touch with" Government policy? I take it that it means being fully seized of the principles of policy which are applied.
Perhaps I may take an obvious example. Suppose there is a case where lard is to be taken for a new power station, and there is a great deal of opposition because it is good agricultural land. There certainly should be no doubt left in the mind of anybody, whether the inspector, the general public or the 882 people whose property is concerned: if the Government feel that there must be absolute priority for atomic power stations (as I think they do; and I believe that they are right), that should be made clear to the inspector. There could be all sorts of variants of that example. But is that not a matter of general policy?
Where I would disagree with the noble Lord about the need for constant close touch between the inspector and the Minister (as a matter of fact, it is not the Minister, but the administrative officials in the Department) is, as distinct from general policy, which is pretty simple, in the application of that general policy to the particular case which the inspector is going to review. It is there that I think there ought not to be that close relationship between the administrative civil servant, in the Department, and the inspector, who should be left absolutely free and at large. It was said that he must be in constant touch with the Department and must see all the files that are passing. With respect, I do not think so. I should have thought that it was undesirable that, where there is what is intended to be, and I am sure is, an independent inquiry, the inspector who conducts the inquiry should have seen the file and the opinions of the civil servants in the Department about the particular case.
§ LORD LUCAS OF CHILWORTH
Would the noble Earl agree that when an individual is in conflict with a Department and gives evidence at a public inquiry, the Department with which he is in conflict should also be there to give evidence and state what is their Minister's policy? At the present time, as the noble Earl says—and I agree with him—the inspector is briefed.
§ THE EARL OF SWINTON
No doubt the Government would give evidence about what is the policy; but I think that is different from what we are considering now, which is the extent to which it is necessary and desirable for these inspectors to be in daily touch with the Government Department on whose behalf they are conducting the inquiry.
I think I have made the point clear, and I do not want to say any more. I have a very open mind on this matter, but I incline to the view I have expressed: that 883 the inspector and the Department should be in touch over general policy, but not over the application of that policy to the particular case, because, after all, that is what the inspector is sent down to inquire into. I hope the Committee will not divide on this Amendment. It would not be fair to ask the noble and learned Viscount the Lord Chancellor to give us a final view to-day, because all these Ministers are concerned. However, I think it might be worth while looking at it again, to see if the inspectors could live, as it were, next door to the Department and be in touch with them on the broad question of policy, and be selected in the way they are at present—by the Civil Service Commissioners and the rest of it—but appointed by the Lord Chancellor from his panel.
I think in that way we should get not only what the Franks Committee recommend but the right kind of touch between the individual, the Ministry and the inspectors concerned, and also a feeling in the country that every inquiry was conducted thoroughly and impartially, as I believe, in fact, it is. I have spoken longer than I intended, but I thought that the Committee would perhaps expect those of us who have some administrative experience in these matters to give their counsel as to where the best line lies in what I admit is about the most difficult point that arises on this Bill.
§ LORD LUCAS OF CHILWORTH
Perhaps I might be allowed to interject here that I do not intend to divide the House and turn this into a political issue. This is far too important a matter to debate it on Party lines.
Could the noble Earl, Lord Swinton, clarify one thing? Does he come to the conclusion that the inspector should be appointed by the Lord Chancellor from his panel and not by the Minister from the Lord Chancellor's panel?
§ LORD SILKIN
There is really not a great deal of difference between us at this stage, so far as I can see. I completely accept the analysis of the position which the noble and learned Viscount 884 the Lord Chancellor has put before the Committee. I think we should all agree that we are dealing with particular inquiries that are held on a large scale by the Minister of Housing and Local Government. The Minister of Education, I understand, holds a limited number of inquiries and appoints a member of the bar to preside; and other Ministers do the same. So it is really only the Minister of Housing and Local Government who conducts inquiries on a large scale, most of which are in connection with planning, with whom we are concerned. The question as to whether or not it is necessary for the inspector to be in close touch with the Minister of Housing and Local Government, and to understand the policy, is not really part of the Amendment. The Amendment does not depend on that issue; it deals merely with the manner in which the inspectors are to be appointed. After appointment, they could, under the terms of the Amendment, be just as well in close touch with the Minister and be informed of his policy as if they were appointed by the Minister himself.
I would say one other thing. In a matter of this kind there is obviously no Party issue involved. We are all trying to produce the most satisfactory result from the point of view of the general public. We want them to have complete confidence in the fairness of these inquiries. I think one of the troubles that we have not yet overcome is that the members of the public appearing before an inspector believe that they are appearing before a judge; they think the inspector is going to give a decision on the matter, whereas all he does is to report to the Minister. I want to confirm completely what the noble Viscount said about the quality of the inspectors at present. I was a Minister for five years and was responsible for as many decisions of that kind in that period as anybody. I never heard a complaint about the way in which the inquiry was conducted by an inspector. Since that time, I have had experience from the other side of the fence. I have acted in inquiries. I have not appeared personally, thank goodness, but I have had reports made to me by counsel and by members of the public about the way in which inquiries have been conducted, and I have had exactly the same experience. Indeed, people go out of 885 their way to say, "Whatever the result of this may be, I am satisfied that I have had a fair hearing."
If, therefore, the object of this exercise is to ensure that not only is justice done but it appears to be done; and if, in fact, the public, as distinct from the professional advisers, believe that the inspector is, in fact, going to make the decision, then I cannot for the life of me see in what way justice does not appear to be done. If we are carrying the matter a stage further, and the public will have a full report of the findings of the inspector as well as his recommendations, and will have access to the actual document setting out the full report of the inspector, I really cannot see how the public can possibly be under any impression at all that justice is not being done.
Then we come to the practical question: what is the best way of appointing the inspectors? I think we have to look at it solely from this practical point of view. They are appointed in the normal way through the Civil Service machine. But they are not appointed as inspectors. Very occasionally the Department may run short of people and they may advertise for senior people to come in, say, at the age of 45 or 50, who have not been in the Civil Service before and who are appointed as inspectors, and become civil servants for the first time. But that is not the normal method. The normal method is by way of promotion. A person may go into the Ministry at the age of 22 or 23, become an assistant principal, gradually work his way up, and in due course be promoted to the position of inspector. He may even come from another Department entirely.
I gather that it is the intention henceforth that when a person is about to be promoted to the position of inspector, and when a person is about to be appointed as an inspector, the noble and learned Viscount will make himself responsible for that appointment. When it comes to the question of appointing a particular inspector to conduct a particular inquiry, with the enormous numbers of inquiries that are taking place all over the country there must be the closest contact between the Department and the inspectorate. There must be interchangeability. A man is put down to go to Derby to conduct an inquiry, but at the last moment he is either taken ill or some other eventuality 886 takes place which prevents him from going. He may even not have finished the inquiry on which he was previously engaged, and, at the last moment, the Minister has to appoint somebody to take his place. That cannot possibly be done unless there is the closest contact between them geographically. I am sure the Committee will appreciate that this must be so. You cannot run this thing unless there is this close association.
Then comes the question of policy. The noble Earl, Lord Swinton, doubted—he is perfectly right to express this doubt; and we are all of us probing this difficult question—whether it was essential that the inspectors should be familiar with the policy of the Minister on a particular matter. I have tried to check up, but to the best of my information and belief inspectors are not briefed at all in respect of a particular inquiry. They go down with a completely open mind on the facts. But it is important, too, that they should have a background to the whole question and know what they have to inquire into, if only to direct the minds of the people who come before them to the relevant issues.
§ THE EARL OF SWINTON
I do not think we differ at all. I said they must know the broad policy. They ought not to be directed as to the application of that policy to the particular case which they are sent to investigate.
§ LORD SILKIN
We are not in disagreement at all on that point. I go further and express a belief that they are not even briefed. They are certainly not briefed on the matter, but I presume they are given the documents which are in the possession of the Ministry, they are given the notice of the appeal and the statement of the department of the local authority, if there is one, against whose decision there is an appeal, and so on. They are given just the record, and nothing else. I am perfectly certain that no discussion takes place between the inspectors and anybody in the Ministry as to the way in which an inquiry should be conducted; it is left entirely to them. So I really think that, if the facts are appreciated, there really is not a problem at all.
May I summarise? As I say, there must be an inspectorate in the closest touch with the Minister. They must be acquainted with the general policy so that 887 they may know to what issues the various people who have appeared before them should have their minds directed; there must be this interchangeability and, if it satisfies the public that the noble and learned Viscount should have a voice in the people who become inspectors—I understand that that is the intention of the Government—so be it. I think in that case there really is not very much that divides us on this Amendment.
§ THE LORD CHANCELLOR
May I add one word to what the noble Lord has said? I asked about the current practice because, as he knows, these things vary from time to time. I have just had a note sent to me that the Housing and Local Government inspectors are normally recruited as inspectors from outside the Civil Service. Sometimes they come from other Departments, but the normal recruitment is from outside. Therefore it really conies to this, if the noble Lord will allow me to underline what he has said. What will happen is that a man comes from outside the Civil Service; he comes to the Civil Service Commissioners to see whether he is of age, fitness of health, and so on. It is then referred to me to see whether I approve him for appointment as an inspector. That being done, he passes to the Vote of the Ministry. But if the Minister wanted to get rid of him he could not do so without my consent. I hope your Lordships will feel that I have tried to come near to meeting the feeling of the Committee.
The noble Lord, Lord Lucas of Chilworth, with his usual generosity on the points which he raises, said that he was not going to divide the House. As your Lordships know, I am always particular in these Committee stages not to get silence by false pretences which, I think, is unforgivable, because the House is always so kind to me. I find some difficulty in imagining how I could go further, but of course I will have a look at it, so long as the House is not under any misapprehension that I am committing myself. I hope that that is quite fair to the House.
§ LORD CONESFORD
I agree that this is an extraordinarily difficult question. It was considered to be difficult by the Franks Committee themselves, and that is why they set out at considerable 888 length the arguments on either side, the case for the Departmental inspectors in paragraphs 293 to 296 and the case for independent inspectors in paragraphs 297 to 302. Having done that, they came to the very definite conclusion, set out at the beginning of paragraph 303:We recommend that inspectors be placed under the control of a Minister not directly concerned with the subject-matter of their work.In the Bill as it stands there certainly is a considerable deviation from that recommendation, and I cannot wholly agree with the noble Lord, Lord Silkin, that there is very little between us. I find myself in most agreement, among the speeches that have been made, with that of my noble friend Lord Swinton. It is perfectly true, as my noble and learned friend the Lord Chancellor pointed out, that the recommendation in paragraph 303 is qualified by what is said in recommendation No. 70:The main body of inspectors in England and Wales should be placed under the control of the Lord Chancellor, but inspectors may be kept in contact with policy developments in the Departments responsible for enquiries.I consider, however, that there is a great difference, as I think the noble Earl, Lord Swinton, thought, between being kept in contact with policy developments in the Departments and being members of those Departments.
This is an extremely difficult question. I am not wholly without experience of it from the Departmental side, because from 1942 to 1945 I was a Minister in the Department of Town and Country Planning, and it is the powers of that Department or its successors that we have particularly in mind. I can confirm everything that has been said about the high quality of those who conducted the inquiries. I could confirm, if it were necessary, as it is not, that there has been no greater champion of the rights of the individual citizen than my noble and learned friend the Lord Chancellor. But I believe that it is a genuine handicap to the Department in the estimation in which it is held by the public, if these inspectors, while they are inspectors, are considered to be, so to speak, inmates of the Department concerned.
How great is the difference is, I think, shown in the conclusion of paragraph 293 of the Franks Report, which states the 889 case for the Departmental inspectors. May I read the last sentence:It is further contended that it may be difficult for the Minister to accept full responsibility for a decision taken in his name if the report on the enquiry, which is an important and sometimes vital part of the advice on Which the decision is based,"—now come the vital words—is not made by someone within his Department.Now, my Lords, I think that the recommendation of the Franks Committee in No. 70 of their recommendations can be satisfied without an inspector—however he is recruited and whatever his previous history—being a member of the Department. Perhaps he must be familiar with the policy of the Department, and not merely the general policy of the Government mentioned by my noble friend Lord Swinton, but I believe that the recommendation of the Franks Committee, No. 70 of their recommendations, with regard to keeping inspectors in contact with policy developments of the Departments, could be sufficiently met if those developments were conveyed to them by memoranda and statements in writing, which if necessary could be made known to Parliament and to the general public in the same terms in which they were made known to the inspectors themselves. I believe that the requirements of recommendation No. 70 of the Franks Committee can be satisfied without the inspectors being members of the Department concerned. Therefore I cordially agree with the advice of my noble friend Lord Swinton, that this extremely difficult matter should not be finally decided this afternoon, but from such experience as I have had I come down, on the whole, in favour of the general line taken by the Amendment.
§ LORD LUCAS OF CHILWORTH
In asking your Lordships' permission to withdraw this Amendment, may I just make two comments? It has been stated that there is not really a problem. Might I tell the noble and learned Viscount that the greatest problem facing this country on this issue at the present time is that the country has not any confidence in these inquiries. How are you going to get it, back? The people may be ignorant they may be everything that has been said about them; but they are 890 the public; and what would they say if the Home Office appointed the judges and the judges were the servants of the Home Secretary, or if the magistrates were the servants of the Home Secretary? Would those judges and magistrates be held in the high esteem they are to-day?
I would thank the noble Earl, Lord Swinton, very much for his most constructive contribution. He tried to put his finger on the point. We must find a compromise on this matter. Unless we do it now, while this Bill is going through Parliament, we shall not do it at all. It may be the first edition of a new Bill of Rights. The noble and learned Viscount may go and do a lot to-morrow, but on this issue to-morrow never comes. I beg the noble and learned Viscount between now and the next stage to find some solution. I agree with him that a number of inspectors, the ad hoc inspectors, can be taken out. It is with the body who come into contact with the vital matter of the acquisition of the citizen's property that we are concerned. The citizen wants to know that he states his case to an impartial person and that that impartial person will pass on, equally impartially and objectively, what his complaint is to the Minister who has to make the decision. If the noble and learned Viscount will give me the assurance that he will really look into this matter and that we can return to it on the next stage of the Bill—there has been only one dissentient voice in this House this afternoon on the necessity to have something done—I will ask your Lordships' leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ LORD LUCAS OF CHILWORTH
had given notice of an Amendment to add to subsection (6):or in the case of any inquiry and report as specified in subsection (2) of this section is empowered to appoint the inspector, person or chairman as the case may be
§ The noble Lord said: is consequential on my and as the noble and has said that he will Amendment I know this at the same time. Therefore I do not move it.
§ Clause 3 agreed to.
§ Clauses 4 to 6 agreed to.891
§ 5.10 p.m.
§ LORD MILNER OF LEEDS moved, after Clause 6 to insert the following new clause:
§ Hearing before tribunal to be in public
§ ".Where any hearing is conducted before any of the tribunals specified in the First Schedule to this Act or where any inspector or other person is appointed by the appropriate authority to inquire and hear representations as specified in subsection (2) of section three of this Act the hearing shall be held in public unless the Lord Chancellor in any particular case certifies that it is contrary to the national interest for a public hearing to take place."
§ The noble Lord said: Having regard to the withdrawal by my noble friend Lord Lucas of Chilworth of his Amendments, this particular Amendment, which stands in my name and the names of two of my noble friends, is not, of course, in appropriate form. It refers to subsection (2) of Clause 3, that being the new subsection in Amendment No. 2 on the Marshalled List which has been withdrawn. However, I desire to move this Amendment in order to obtain, if possible, assurances from the Government on this matter of a public hearing.
§ As the Committee are aware, the Franks Committee recommended—at page 92—that all hearings before tribunals should be held in public. The purpose of moving this Amendment is to ascertain, first, whether that recommendation will be applied in the case of tribunals and, secondly, whether it will be applied also in the case of those other inquiries to which the Bill is supposed to refer. I imagine that other noble Lords had not fully appreciated, as I had not, that the actual provisions in regard to the procedure set out in this Bill applied only to tribunals, and that the matter of inquiries was to be considered by the Lord Chancellor and was one on which, I think I am right in saying, rules of procedure were to be drawn up. However that may be, it would seem desirable that, except in those special instances to which the Franks Committee refer, there should be a public hearing, both in the case of inquiries and in the case of tribunals.
The Amendment standing in my name and in the names of two of my noble friends enables the Lord Chancellor in any particular case where it is contrary to the national interest to hold a public hearing, to order that the hearing may be in private. But I observe that the
Franks Committee go rather further than that—and, in my view, desirably so. They say in Recommendation (13) at page 92:
Hearings before tribunals"—
and, I should hope, equally in the case of inquiries—
should be held in public, except in cases where:—(i) considerations of public security are involved….
That is a reference, I presume, to the national interest. Then the recommendation goes on to say that
hearings before tribunals should be held in public, except in cases where…intimate personal or financial circumstances have to be disclosed.
Clearly, that limitation would appear to be desirable. I have in mind the question of hearings before the Income Tax Commissioners and various bodies of that sort. Then the recommendation goes on to exclude from public hearings cases where the hearing is a preliminary investigation of a case involving professional capacity or reputation. The recommendation says:
A tribunal concerned almost exclusively with any of these types of case should sit in private.
I should like the assurance of the Government that in fact those provisions will be brought into force both in regard to tribunals, as recommended by the Committee, and also in regard to inquiries.
§ Then the question arises, who is to decide whether those or any other matters ought to be heard in public? The Amendment puts that duty upon the Lord Chancellor. In my view, that would be almost an impossible task, owing to the number of tribunals and inquiries involved. I should be happy to have the Government's view on this matter. It might be better that the tribunal itself should be given the power to order that, in appropriate cases, the proceedings should be held in private. I do not propose to take up the time of the Committee at any length on this matter—it seems perfectly simple and clear—but I will move the new clause and invite the Government spokesman to give us his views on it. I beg to move.
After Clause 6, insert the said new clause.—(Lord Milner of Leeds.)
§ LORD DENNING
If, as the Franks Committee recommended, tribunals are 893 to be brought within the judicial system of this land—and the Government have accepted that—then it should follow that the hearings ought, in general, to be in public. I know it may be said, "Leave this to the Council on Tribunals; leave them to make procedural rules." But here is a matter of principle which, I suggest, should be laid down by Parliament in a Statute. Let there be exceptions; let there be room for exceptions to be made or prescribed after consultation with the Council. But it is a fundamental principle of all judicial proceedings that they should be in public. It has often been said that the publicity of judicial proceedings is the soul of justice—the judge himself is on trial to see that he tries the case properly. That should apply, as the Franks Committee recommend, as a general principle to tribunals. Indeed, it is wonderful what the presence of a newspaper reporter does to make people behave properly.
But apart from that, with inquiries, the Franks Committee further recommended that the public at large—the third person who is concerned with inquiries much more than with tribunals—should also be allowed in. I agree; but there should be exceptions. There are exceptions, of course, in the courts of law. Some think that they have gone too far there. But it should be laid down as a general principle, if this is part of our judicial system, that hearings should be in public, subject, I would suggest, to the provisions of any procedural rules which may be prescribed after consultation with the Council on Tribunals. I would therefore support the principle of this Amendment.
§ 5.17 p.m.
§ THE LORD PRESIDENT OF THE COUNCIL (VISCOUNT HAILSHAM)
I have appeared, in trepidation, so often before the noble and learned Lord who has just spoken that to find myself replying almost on an equal footing fills me with pleasure—and with what I hope is unjustified alarm. But having listened to his forthright and eloquent remarks, I would say that, in connection with his fundamental principle, he has perhaps not quite paid attention to all the cases which come within the scope of the First Schedule to the Bill. With respect, I should have thought that in this respect the Franks Committee had arrived at the right general recommendation. The 894 Amendment, if passed, would have two effects. It would put on the Lord Chancellor the burden of saying, first, whether hearings of tribunals of which he had no direct personal experience were to be in public or in private, by reference to particular cases of which he had no knowledge; and, secondly, that his criterion in doing so should be the public interest and not justice, both of which are dangerous propositions. The Franks Committee, in contrast to the proposed Amendment, says in its recommendation (13) at page 92:Hearings before tribunals should be held in public, except in cases where: (i) considerations of public security are involved; (ii) intimate personal or financial circumstances have to be disclosed; or (iii) the hearing is a preliminary investigation of a case involving professional capacity and reputation.Broadly speaking, I would agree with the Franks Committee. I rather doubt the efficacy of this Amendment, and I would also venture to criticise what the noble Lord has just said. I think that he has to some extent been misled by his judicial experience in this particular matter, because my noble and learned friend the Lord Chancellor has been concerned to bring within the ambit of this Bill and of the Council the widest range of tribunals that he could possibly find. The object has been to protect the individual, and not to protect the public except, of course, in so far as the protection of the individual is itself an interest of the public.
I quite agree that in judicial cases it could be argued that we had gone too far, but the kind of consideration which involves the closing of a court in judicial cases is somewhat different from the kind of consideration which might involve the closing of one of these tribunals to the public; because, broadly speaking, apart from cases like those affecting infants, and cases in Chambers in the course of interlocutory proceedings in a case, a court is closed in an individual case only for a particular reason. Here we contemplate certain types of case which would not be public inquiries at all but which should none the less come within the ambit of the Council.
The case given by the noble Lord opposite, that of the General Commissioners for Income Tax, is a particularly good one. Many people might have thought that my noble and learned friend the Lord Chancellor was making a mistake in including this within the ambit 895 of the Bill: they might have thought that too generous. But, clearly, if the matter is to be brought under the Council the subject must be protected against publicity. I have not looked at all the cases in the Schedule. If I had had adequate time I should have liked to notice exactly what tribunals are to be held in public. Looking over them, I see that they include, for instance, investigations by the Service Committee under the National Health Service, in which the whole reputation of a doctor might be brought into question without his necessarily coming before the General Medical Council. I believe that nobody would ask for that kind of inquiry to be held in public. Again, there is the position of the Ministry of Education, upon which my eye naturally falls, under the Independent Schools Tribunals, constituted under Section 72 and the Sixth Schedule of the Education Act, 1944. There again, extraordinarily delicate matters of complaint affecting the standing of an independent school might be under discussion. All the damage might be done by the publicity, although the school itself was found to be entirely guiltless of some of the criticisms which were made.
I should have thought, therefore, that, broadly speaking, we were right to propose, as we do, to leave the Council, as one of its duties—and perhaps one of its first duties—to decide to which category the case of an ordinary rule of public hearing should apply, instead of laying down that in the view of Parliament it should apply in all cases except where the Lord Chancellor certifies that it is in the public interest in a particular case. I feel that our proposal would be very much more in accordance with the spirit of the Report of the Franks Committee and very much more practical and just than that contained in the Amendment. The noble Lord opposite raised the question of inquiries, and there again I find it particularly difficult to dogmatise, or even to generalise, without to some extent being misleading. I am glad to see opposite two noble Lords who belong to the more prosperous branch of the legal profession, highly-qualified lawyers. They will know whether what I am saying is correct or incorrect. My general impression is that many of these inquiries are public local inquiries in which publicity and the public holding of that 896 inquiry are actually required by Statute—that is, by the Statute under which the inquiry is held. This Act in no way interferes with that situation.
Added and adjoined to that fact is this general background. While many, if not most, of the more important inquiries which are under discussion to-day are those which, by Statute, must be held in public, there will be quite a heterogeneous collection of types of inquiry held for various and quite different purposes, many of which will involve the same kind of intimate and confidential discussion as that in the more formal type of judicial tribunal to which I have referred, which is the first category of inquiry dealt with by the Bill. I should not like to give an absolute general assurance about this heterogeneous collection, but my feeling is that I shall be quite safe in assuring the noble Lord who has moved this Amendment that Her Majesty's Government are entirely in sympathy with the finding of the Franks Committee on this subject, and would wish the Franks Committee to discuss it.
§ VISCOUNT HAILSHAM
Yes; the Council on Tribunals, when established, would wish to discuss the appropriateness of the general rule and cases where exceptions could be made. I believe that in actual practice if we were to enter into a detailed discussion of all the different categories of inquiry and tribunal there would be no real difference between us here. But on the general case, I believe we are probably right to prefer the Report of the Franks Committee to the Amendment and to refer to the Council the considerations which ought to apply in individual cases.
§ LORD LUCAS OF CHILWORTH
My name appears against this Amendment because there is nothing in this Bill to give expression as regards administrative hearings and inquiries other than tribunals. The first precept laid down by the Franks Committee and accepted by Her Majesty's Government was openness. Does the assurance given by the noble Viscount mean that at the earliest opportunity the whole question of making it obligatory to hold all inquiries in public, unless there are reasons for not doing so, will be considered? I quite agree with 897 him that it is usually left to the discretion of the tribunal. In some cases they must hold the inquiry in public. Inquiries under the Electricity Act must be in public which really means that the Press must be there—
§ LORD LUCAS OF CHILWORTH
Yes. I was afraid that the position might creep in that Statutes are brought before Parliament, or regulations are made, under which hearings would take place without that very desirable condition of openness. If the assurance given by the noble and learned Viscount, Lord Hailsham, means that this question will be referred to the new Council on Tribunals, then, whilst I cannot speak for my noble friend, that would satisfy me, because it would not prejudice the position of the statutory obligation.
§ VISCOUNT HAILSHAM
Perhaps I can help the noble Lord there. I can assure him categorically that there is nothing in the Bill, or intended by it, which will derogate from any provision already existing that local inquiries and similar proceedings should be held in public. Secondly, as regards the various categories of tribunal which are not now held in public but which are within the First Schedule of the Act, it is our intention to refer the question of each category to the Council separately.
§ LORD MILNER OF LEEDS
I must not be taken as accepting entirely what the noble and learned Viscount has said, but having regard to the assurance he has given, I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ LORD LUCAS OF CHILWORTH
The simple point of this Amendment is to try to put into the Bill, without any qualification whatsoever, another recommendation by the Franks Committee on the question of privilege of evidence before tribunals and local inquiries. The evidence of witnesses in the courts of law is privileged. Why, when the system of tribunal or quasi-judicial hearings and public inquiries is growing apace, should that principle not be extended to evidence before tribunals? That is the simple point. The Franks Committee recommended it. I think it should go into the 898 Bill. Perhaps the noble and learned Viscount would be kind enough to give the House his opinion, or the opinion of the Government.
Insert the following new Clause—
§ Evidence called by tribunal to be privileged
§ (".Where any person is called to give evidence before any tribunal specified in the First Schedule to this Act or at any hearing by an inspector or other person appointed in the circumstances mentioned in subsection (2) of section three of this Act the evidence of such person shall be absolutely privileged and no action for defamation may be founded thereon in any count.")—(Lord Lucas of Chilworth.)
§ LORD DENNING
May I just say a word on this Amendment, too? If witnesses are to be able to give their evidence without the fear of being harassed by a slander action (even though they are protected by absence of malice, nevertheless the courts of law have always held that they must be able to give it fearlessly), there is no reason whatever why this privilege should not be granted to them as from this moment. We should not wait for further reference to the Council on Tribunals, and so on, before an Act of Parliament is passed. Although it is not mentioned in this Amendment, it is even more important that as from to-day members of tribunals or inspectors who make reports should themselves be privileged, just as judges are; because how can an inspector give a fearless and frank report, which is going to be made available to other people, unless he is protected from actions for defamation against him? The courts of law have always recognised that it is necessary for witnesses and judges, and so it should be for witnesses before tribunals and inspectors. It is equally necessary for them; and witnesses and inspectors should be covered by this privilege. I suggest that there is no reason to leave it to the Council on Tribunals, but it would be a good thing to have it stated now, because people are now giving evidence.
§ VISCOUNT HAILSHAM
Again, I have a great deal of sympathy, which I hope I have shown and will show for the principles underlying this Amendment. But let us first of all get back to what the Franks Committee said about it, because again, on the whole, I would ask the House to follow the Franks Committee rather than anything else. The 899 Franks Committee, in their recommendation No. 14, to which this Amendment is supposed to give effect, say:Consideration should be given to the conferment of absolute privilege on witnesses before tribunals, at any rate on those giving evidence on oath.There are two propositions of the Franks Committee, both of which deserve consideration. One is that there should be consideration given to the general conferment of absolute privilege on anybody who makes a statement of any kind to these tribunals; and the other proposition is that absolute privilege should be confined to those who give their evidence on oath. I believe in general that both the Government and, I hope, the Council, if it is established, on going through the various categories of people who have to give statements of one kind and another, in writing or orally, to these tribunals, will view both these suggestions sympathetically; and it will certainly be our intention that the Council should consider this matter most carefully. But, with respect, I do not think that this House would be well advised to put in an absolutely unqualified right of absolute privilege in all cases where people give statements to any kind of tribunal which comes within the very wide definition of the First Schedule to this Bill. I think the House should be aware of exactly what is involved—I would not say that to the noble and learned Lord, because he is one of the greatest experts on the law of defamation.
I hope, however, that the noble and learned Lord will forgive me if I give a simplified account of what is involved—in this question of absolute privilege. Anybody who gives to these tribunals evidence of any kind, sworn or unsworn, will be, I think, entitled to claim qualified privilege for what he does. That is to say, unless he can be proved to be guilty of malice, he will be protected in respect of what he says to the tribunal. Therefore, what we are discussing is this: to what extent witnesses should be protected if they can be proved to be malicious; and this is not, I think, quite as easy a question as the noble and learned Lord would have us believe. Hitherto there has been a certain relationship which has been preserved between conferment of absolute privilege to witnesses and application of the Perjury Act, the philosophy being not any religious 900 connotation of the oath (because many statements covered by the Perjury Act are not sworn in that sense), but that if you can be sent to prison for perjury, that is sufficient protection against wild and malicious and irresponsible statements. But if a written statement of the most malicious kind can be put in and used as evidence, subjecting a party to great harm and damage, especially if the hearing is to be in public (as we discussed on the last Amendment), and no kind of criminal sanction applies to deliberate untruths, then I believe that that will be unsatisfactory and that the Council will want to categorise these things a little more than by just saying that everything that is said, however untrue and damaging, should be entirely free to be said, without any possibility of an action for defamation.
Of course in a great number of cases of these tribunals, witnesses have already absolute privilege under the law. Again I apologise to the noble and learned Lord for making this point, but I think it is as well that the House should bear it in mind. The following tribunals have been held to be within the rule: a military court of inquiry, an ecclesiastical commission appointed by a Bishop under the Pluralities Acts, the Law Society's Disciplinary Committee, a statutory tribunal to settle industrial differences, and a military local tribunal constituted under the Military Service Acts, 1916; and there is no reason to suppose that that is an exhaustive list because the courts have decided this matter according to certain general principles, with which I need not trouble the House, and those cases come within the ambit of those principles.
On the other hand, certain other tribunals have been held to be outside the rule: for example, a meeting of the L.C.C. to, consider dancing licences; licencing justices; a statement to them; a commissioner sitting under the Canadian Combines Investigation Act, with powers to investigate "administratively" whether offences had been committed; a court of referees under the Unemployment Insurance Acts; a medical referee under the Workmen's Compensation Act, 1925, and an inspector under the Friendly Societies Acts. In those latter cases I have mentioned the courts have held that on general principles the witnesses should not be given an absolute privilege. It may be that the 901 courts were wrong. It may happen that courts in the matter of morals or politics sometimes err; but it does not follow that they are always wrong in these matters. In considering these cases they have on the whole tried to do justice and to bear in mind considerations of public policy in doing so.
I would myself think that this is precisely one of the thorny questions which the Council would do well to consider among its earlier functions; and that this House having blessed the spirit in which this Amendment is proposed and the general philosophy which actuated it, it would still be better to follow the actual terms of the Franks Committee's Report and riot to try to improve upon them.
§ LORD LUCAS OF CHILWORTH
If the noble Viscount gives an assurance that this matter will be referred to the Council—and I think he has given very good grounds for adopting that course—I will, with that assurance, ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.40 p.m.
§ LORD SILKIN moved, after Clause 6 to insert the following new clause:
§ Legal aid
§ ".Where the legal rights of any person may be interfered with or altered by the order or determination of any tribunal mentioned in the First Schedule to this Act or by the order or determination of an appropriate authority after an inquiry or hearing as referred to in subsection (2) of section three of this Act such person shall be entitled to apply for legal aid before such tribunal inquiry or hearing or in any proceedings in the High Court arising therefrom at which he is a proper party under the Legal Aid and Advice Act, 1949, as if the proceedings were in a civil suit in the county court."
§ The noble Lord said: In this Committee we are gradually evolving a technique for dealing with Amendments fairly speedily. These Amendments are, by and large, recommendations of the Franks Committee which have not been implemented in the Bill, and the Government have been accepting the Amendments in principle, though not necessarily in detail, and are undertaking to refer the matter to the new Council to be appointed. I should be perfectly happy if that procedure could be adopted in the case of this Amendment. In paragraph 89 the Franks Committee consider that legal aid should be made available in proper 902 cases. To be perfectly frank, I have looked through the cases that might go to tribunals where legal aid might be appropriate and they are not easy to see; but it is easy to visualise cases which come before inspectors, where property is involved and where people are forced to attend to protect themselves, where they would be well advised to have legal assistance, but cannot afford it.
§ Let me give one simple example—many such cases have come to my own notice—that of someone who has bought property as an investment against old age and it turns out that the property is to be acquired under a slum clearance scheme. It is important that such a person should be adequately represented at an inquiry and should have his case properly put. And this, of course, may involve him in considerable expense, which he cannot afford. This is the kind of case I had in mind in this Amendment. If the noble and learned Viscount is prepared to say that he accepts the principle that in certain cases legal aid ought to be made available to a person appearing before a tribunal or an inspector, and that that kind of case ought to have careful consideration, and if he is prepared to say that these cases will be considered by the Council, when appointed, I shall be perfectly prepared to withdraw the Amendment. I beg to move.
After Clause 6, insert the said new clause.—(Lord Silkin.)
§ LORD MILNER OF LEEDS
I should like to support this new clause and to make it clear that, so far as I am concerned—and I hope the majority of noble Lords also—no man should be barred from the right, if he desires it, to have legal representation before either a tribunal or an inquiry. We all know that there are few people who can readily express themselves, and in my submission it should always be possible for an objector, or anyone appearing before a tribunal or inquiry, to take along with him a friend, a trade union official (as has been frequently the case lately) or a lawyer to speak for him. There seems to be a fear that if legal representation is allowed, people may feel obliged to have such representation and that therefore proceedings may become more common and more formal. That has not been borne out by experience.
903 It appeared in the evidence, though not in the Report itself, taken by the Franks Committee that in only 2½ per cent. of industrial injuries cases was the right to legal representation taken advantage of. No doubt that percentage would be increased if there were legal aid in these cases. I hope that my noble friend Lord Silkin will forgive me, but I entirely differ from what he said on Second Reading, to the effect that a person would get along quite well before a tribunal without legal assistance. In my view an applicant is at a great disadvantage where he appears in person against experienced and qualified people who appear on behalf of local authorities and other bodies. The Franks Committee state that the hardship caused by banning legal representation was really considerable in some cases and that it was difficult to justify the ban. The Committee were of opinion that the right should be curtailed only in the most exceptional circumstances, and that a Government Department should not be permitted representation unless the citizen was equally allowed to have representation, and that in due course legal aid should be available.
As your Lordships know, at present legal aid is restricted to the High Court and county courts. Those concerned with its administration, and the Law Society, in particular, are anxious that the next step should be to extend legal aid to the giving of legal advice. No doubt when that principle has been accepted—and it is mainly a question of finance—the desirability of extending legal aid to other branches, such as tribunals and inquiries, would be considered. If it were possible, I agree that this should be done at once; but we have to proceed gradually with this and extend the principle, first by giving legal advice, which is badly required in many directions, and only thereafter, perhaps, by providing legal aid for hearing before tribunals and inquiries. Subject to this reservation, I support the new clause.
§ LORD LUCAS OF CHILWORTH
May I add one word in support of this Amendment? I beg leave to question whether it is necessary to refer this matter to the new Council. Legal aid so that justice shall be enjoyed by all is now one of the accepted principles of this country. I can support my noble friend 904 Lord Milner of Leeds, as on all too many occasions I have had to have recourse to legal advice and legal pleading. For me it has been a very sound investment—perhaps the noble Viscount will be surprised to hear that. On Second Reading the noble and learned Viscount the Lord Chancellor quoted the Magna Charta:To no-one shall we sell, to no-one shall we delay, justice.That is not strictly accurate, of course: we do sell justice. There is one law for the rich and another for the poor. It has been said that the Franks Committee owed its birth to Crichel Down. On Second Reading the noble Lord, Lord Salter, said this [OFFICIAL REPORT, Vol. 208 (No. 52), col. 611]:I suppose it "—that is, the introduction of this Bill—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.If it had not been for an individual with sufficient money to prosecute and take the case to the bitter end, we might never have had the Franks Committee and this Bill.
Now that there are so many public inquiries into actions by nationalised bodies, who with the power of the public purse can employ "silks" and juniors to represent them. I do not think that the small objector stands a chance of getting what he thinks is justice. I could underline that by saying that if there were an independent inspector the small objector could get the protection that he will always get in the courts from the judge, who will see that he is not browbeaten or bullied by the argumentative, forensic powers of learned counsel—and I have no need to tell the noble and learned Viscount, Lord Hailsham, what they can be. I could anticipate that the answer will be that to provide legal aid for objectors at inquiries would put them at the end of a long queue. Is it necessary that that should be so? Why should not that individual be able to have at least legal advice before his objection is put in, and to have a legal adviser who should know some of the intricacies of some of the Acts and who in all probability will have appeared before an inspector? I hope that the noble and 905 learned Viscount will be able to accept at least the principle of this Amendment, and then come forward at the next stage of this Bill with some proposal as to what can be inserted to make it effective. I support my noble friend Lord Milner of Leeds in this Amendment.
§ VISCOUNT BRIDGEMAN
I happen to be Chairman of the Lord Chancellor's Advisory Committee on Legal Aid, and I should like to support the line which I understood to be taken by the noble Lord, Lord Milner of Leeds, who, through his connection with the Law Society, is well versed in these matters. When the Legal Aid Advisory Committee saw what the Franks Committee reported about legal aid they took careful note of what was said. But at the same time, as many noble Lords will know, the Legal Aid Advisory Committee have for some years past strongly recommended to those in authority that legal aid, which the noble Lord, Lord Milner of Leeds, said just now applies only to the High Court and to county courts, should be extended to the magistrates' courts and also to the giving of legal advice.
Although I cannot speak for the Advisory Committee, but only for myself, I feel that, whatever may be the rights and wrongs in principle, in practice, it would not be right to put legal aid for tribunal hearings ahead of these other two for which we have been pressing for some time past. If, indeed, there is sufficient money to go all round, so much the better; but if it is a question of priorities, I should agree with what the noble Lord, Lord Milner of Leeds said: that we should stick to calling for legal aid in the magistrates' courts and for legal advice, before attempting to deal with the present matter. On the other hand, the noble Lord, Lord Lucas of Chilworth, suggested that it might be possible if we brought in legal advice to extend it straight away to advice on matters coming before tribunals. That is a point that will probably need studying by experts; but it is a different thing from extending legal aid to tribunals before the other two I have mentioned. However, speaking personally, I would say that the pint is well worth looking into, if the time comes when free legal advice is available.
§ VISCOUNT HAILSHAM
I was delighted to hear from so many members of the solicitors' profession and so many 906 lay Lords such encomiums on the power of advocacy. I am an advocate and the son of an advocate, and I think almost every generation of my family, for about six generations back on both sides of the Atlantic, have been members of the legal profession in one form or another. So I find it difficult to resist the argument that a man who is in jeopardy or in need of advice ought to have the services of a professional if the matter is of sufficient importance. Indeed. I was glad to see that the Franks Committee recommended that the right to legal representation before tribunals should be curtailed only in the most exceptional circumstances.
Too often, in my experience in Parliament—and I am afraid it goes back now twenty years, to 1938—whenever it has been suggested that people ought to have the right to appear by counsel or solicitors, someone has got up and said: "This is a dreadful suggestion: it will destroy the informality of the proceedings; it will lead to endless argument and delay. If you have a good case, such is the excellence of the tribunal that we are instituting in this Bill, what need have you of advocates?" I have heard it all, and I have disagreed with it. But I have no doubt that, as week follows week in this Parliament, similar speeches will be made as new legislation comes forward; and I am glad to know that on the other side of the Committee, and, indeed, on all sides, the legal profession and the right of advocacy have such powerful allies as we have heard this afternoon.
But this is not an Amendment which deals with the right to legal representation; it is an Amendment which extends the right to legal aid. Although I appreciate the force of the argument which says that legal representation is such an excellent thing that mere shortage of means ought not to be a bar to possessing it on all suitable occasions, the general view of the Government is that this Bill is an inappropriate enactment in which to insert an extension of the Legal Aid Scheme. As the noble Lord will know from the speech of my right honourable friend in another place when the Government's conclusions on the Franks Committee Report were announced, this was one of four recommendations which he said had not been accepted by the Government. Therefore, the noble Lord will not expect me to accept his Amendment.
907 One of the reasons which led the Government to this conclusion is that which has been put forward by my noble friend Lord Bridgeman. After all, we have refused legal aid to those who want legal advice. When I was a Back-Bencher I sometimes held the heretical view that we ought to have given legal advice before we gave free legal representation; that the Government of the day had, in a sense, put the cart before the horse. Now that I am a Minister, I suppose I must not say such dreadful things. At any rate, we have refused to extend the scheme to legal advice, and we have persisted in that refusal. We have refused to extend the scheme to representation in magistrates' courts, which are becoming increasingly important, both in matrimonial and criminal proceedings; and there are severe limitations on free legal representation in the more serious criminal proceedings which come before courts on indictment. I do not think we could justify the extension in this Bill, as it were by a by-wind, of the whole system of legal aid as of right to the classes of persons who may be affected by the tribunals, just because we are implementing the Franks Committee Report in this Bill, and leave out in the cold all the other claims to legal aid, which most of us, if we judge this matter objectively and impartially, would inevitably put in an equal place in the queue, and in some cases above it. Therefore, we cannot accept this Amendment to the Bill.
I would say this to noble Lords opposite. The Franks Committee were in favour of giving legal aid only to the "formal and expensive and to final appellate tribunals "—that is in recommendation No. 16—but this Amendment is designed to give it to the whole range of tribunals and inquiries. So that even the Franks Committee, which has been invoked, was not so generous as this Amendment would be. I am sorry to be in the position of saying "No" to an Amendment which is so obviously attractive to me as a professional advocate, but I would ask the House to say that the reasons which I have indicated are really conclusive about this particular Amendment. Although some members of the 908 Committee would wish to be more generous than the Government are prepared on financial grounds to be in the matter of legal aid, I would ask them not to press this particular proposal on that ground, because that would not justify their going ahead with it.
§ On Question, Amendment negatived.
THE SECRETARY OF STATE FOR COMMONWEALTH RELATIONS (THE EARL OF HOME)
Before the next Amendment is put to the Committee, may I find out what the sense of the House is? There have been a good many complicated matters to discuss on these Amendments, and we still have five or six Amendments, of which one or two are fairly important. My noble and learned friend the Lord Chancellor has had to go, and I think my noble friend Lord Hailsham will shortly have to go. Although my noble friend Lord Selkirk will very gallantly step in, I am not sure that it is a breach he is particularly anxious to fill. I wondered, as it so happens that the Scottish Business for Tuesday has had to be cancelled, whether it would be suitable to noble Lords opposite and the House to carry on the rest of this discussion next Tuesday instead of continuing this evening.
§ LORD SILKIN
That would be entirely convenient to us. We shall approach this matter with new life and new vigour, and perhaps not so calmly and quietly submit to the blandishments of the noble and learned Viscount.
THE EARL OF HOME
There is just one matter which I may mention for the convenience of the House. I have had a look at Thursday's programme, which is rather congested, and we are proposing on that day to discuss the Committee's proposals on Leave of Absence from the House, on which there may be a number of speakers. I will make a proposal through the usual channels to postpone the Children's Bill to a date to be agreed, which I think will make Thursday's programme a little more convenient to the House than it is up to now.
§ House resumed.