HL Deb 05 March 1959 vol 214 cc828-38

4.10 p.m.

Order of the Day for the House to be put into Committee read.

Moved, That the House do resolve itself into Committee.—(Viscount Ingleby.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD AILWYN in the Chair]

Clause 1 [Questions under the Family Allowances Act, 1945, and corresponding questions under other Acts]:

LORD LATHAM moved to add to the clause: (6) In the determination of any question to which this section refers, the claimant shall have the right to insist that the hearing of an appeal by the local tribunal, or by the Commissioner, shall he in private.

The noble Lord said: I beg to move the Amendment standing in my name on the Paper. It is a short and simple Amendment, but those characteristics do not, I think, detract from its importance. The purpose of the Amendment is to maintain and preserve the right of privacy of those men and women who are claimants or appellants in regard to family allowances. At the present time these claims are dealt with by referees, and claimants or appellants in respect of family allowances do have their cases heard in private. Under the Bill it is proposed to transfer the adjudication of claims to the machinery which exists in connection with claims under National Insurance. Under this machinery the appellant can ask for the case to be heard in private, but it rests with the chairman of the tribunal—or, if the case goes to the Commissioner, with the Commissioner—whether the case is heard in private. Normally, unless a request is made and acceded to, claims are heard in public.

The procedure with regard to National Insurance came into operation, I believe, as recently as last year, and I understand that the Minister sought the opinion of the National Insurance Advisory Committee on this point of whether cases should be heard in public or in private, and whether the applicant or the appellant should have the right to determine that the case should be heard in private. I am informed that this Advisory Committee took the view, and so advised the Minister, that the applicant or the claimant should be given an unfettered right of saying whether his or her claim should be heard in private. The Minister, however, did not accept that advice and seems to me to have followed, somewhat slavishly, the recommendation in that behalf of the Franks Committee.

When this Bill becomes an Act and is put into operation, the situation will be that claims in respect of family allowances will be heard in public unless the chairman of the Tribunal or the Commissioner is wiling that they should be heard in private. I submit that there is a difference between the circumstances normally attendant upon claims in respect of family allowances and those which are part of claims under National Insurance. Practice has shown that, relatively speaking, there are few appeals under the provisions for family allowances, but when appeals are made they are normally more difficult and, as one can understand, often attended with some rather distressing circumstances. There may be a dispute as to who is entitled to have the family allowance. It may be that the home has been broken up; that there are personal differences; that the interests of children are involved; or there may have been separation between the parents, or divorce proceedings may have ensued. There may even be questions involving the legitimacy of children.

I contend, and I think your Lordships will be willing to accept the point of view, that these distressing intimate personal details ought not to be disclosed to the public or available to be displayed and deployed in the local paper. The knowledge of these circumstances, which, as I have said, are very intimate, ought not to be broadcast by a public hearing at which the Press are entitled to be present. In my view. the right which the claimant or the appellant has enjoyed up to the present should be preserved, and he or she should be given the right, as set out in the Amendment on the Paper: to insist that the hearing of an appeal by the local tribunal, or by the Commissioner, shall be in private.

When the matter was under consideration in Committee in another place, the Joint Parliamentary Secretary to the Ministry of Pensions and National Insurance resisted an Amendment of this character, principally, I think it is fair to say, on the basis that if the Amendment was accepted, and this right of determination as to whether a case should be heard in private or in public was given to a claimant, there would then be in operation two different methods of adjudication. There would be the one with this right as regards family allowances and the other, without the right, as regards National Insurance. That clearly would be the case unless opportunity were taken to amend the adjudication procedure of National Insurance.

But supposing there is a difference, does it really matter? I ask the noble Viscount who is sponsoring the Bill: what is the mischief that would flow from having a difference between those two sets of circumstances and two sets of adjudication procedure? The difference has existed for many years. The claimant for family allowances has since 1944 had the right to a private hearing where that has been desired. I cannot therefore see what mischief can flow from having different procedures, or what disadvantage there would be.

It is the case, as I am sure the noble Viscount knows, that of some 10,000 claims under National Insurance there have been 259 requests that the case should be heard in private; and of those 259 only 24 were refused by the chairman, which I think is a very good record and shows a breadth of view and a liberality of decision which is very commendable. Nevertheless, I submit that the circumstances are not comparable; that the matter to be decided and the details to be disclosed in connection with family allowances are, on the whole—I will not say there are not exceptions—much more intimate and much more personal than the details which are required to be disclosed in connection with National Insurance.

May I conclude by saying, as I stated on the Second Reading, that when this Amendment was before a Committee in another place it was defeated only by the casting vote of the Chairman. I hope that the noble Viscount, having considered the matter since Second Reading, as I gave notice of my intention to raise this point, will be able to accept this Amendment, which will preserve the status, the self-respect and the family unity, which might easily otherwise be destroyed by a disclosure in public of intimate facts concerning the lives of applicants.

Amendment moved—

Page 3, line 8, at end insert— ("(6) In the determination of any question to which this section refers, the claimant shall have the right to insist that the hearing of an appeal by the local tribunal, or by the Commissioner, shall be in private.")—(Lord Latham.)

LORD SILKIN

I should like to associate myself with the case made by my noble friend Lord Latham, although I will not repeat the case he made. He made it so admirably and, to my mind, so conclusively that there is very little that I need say in support. But I should like to say just one thing. I was under the impression that the main case against accepting this Amendment is the recommendation of the Franks Report and the desirability of fairness and openness. As a member of the Franks Committee I would say that it was never in our minds that cases of this kind should be dealt with in public, against the wishes of the applicant. Our view was that it was an applicant's right to have his case heard in public and that it was for him to judge for himself. We intended that there should be no "hole and corner" proceedings without the wish of the applicant, but not that this publicity should be imposed on him against his own desire, particularly in cases where, as my noble friend has pointed out, there may be much to be said on the merits, and in the interests of children and the family generally, of the facts not being published in the Press. So if the main argument is the Franks Report and the desirability of openness, I think I can say that it was never intended that it should apply to cases of this kind.

LORD REA

From these Benches may I just add my support to the speech of the noble Lord who has moved this Amendment? I had not intended to speak on this Committee stage, but the case which he put forward was so convincing that, unless the noble Viscount has something equally convincing to say on the other side, we shall certainly feel very much in favour of the Amendment as it stands.

VISCOUNT INGLEBY

I have listened with close attention to what fell from the noble Lords, Lord Latham and Lord Silkin, in support of this Amendment, but I am still firmly of the opinion that this Amendment is both unnecessary and, in fact, undesirable. I hope to be able to convince those of your Lordships, who I hope are in the majority, who approach this matter with an open mind, that I am right. There is no Party political principle here involved, although the voting in the Standing Committee in another place, to which the noble Lord, Lord Latham, referred, was on Party lines, and I think it was that. probably, which was the cause of the very close Division there. What is proposed by the Amendment is something, I think, novel to any legal procedure known to us in this country. It gives to one party to a proceeding, the claimant, an absolute option to a hearing in camera. This proposal runs contrary to our experience, to which I shall refer in a moment; I think it runs contrary to good sense, and I think it also runs contrary to natural justice.

So far as experience is concerned, I should like just to recall to the Committee that for many years during the war I was engaged on framing the new system of Industrial Injuries insurance by the State to take the place of the old Workmen's Compensation Acts, where recourse, as between the injured workman and his employer, was to a court of law. Under the new system, which has now been in force for ten years, the scheme devised was, first of all, to get rid of the jurisdiction of the courts and to have a local appeal tribunal of three persons to judge upon the claim; and we provided, because in that scheme we were doing away with the jurisdiction of the courts, that the hearing should be in public unless the chairman, for special reasons, directed otherwise. The reason for that provision giving the chairman the right to order a hearing in camera was, of course, that under the heading of Industrial Injuries some very distressing accidents and circumstances occur, and there were often cases, as I well remember from practising as a junior barrister in county courts many years ago, where the workman undoubtedly was psychologically injured by the fact that his disability or industrial disease was talked about in open court. So it was very wise. I think, to put in this provision for a hearing in camera, in private, at the discretion of the chairman of the tribunal. That system, whereby, on application by the claimant the hearing may be in private, has operated for ten years, and, so far as I am aware, there has not been a single instance of a complaint by any party to a proceeding of that character that the chairman of the tribunal has wrongly withheld his consent to a private hearing.

It was gratifying to me, therefore, I having played a part in drawing up this scheme many years ago when I was at the Home Office, to find, ten or eleven years later, that the Franks Committee, of which the noble Lord, Lord Silkin, was a member, recommending that exactly the same system should be adopted for National Insurance cases which, for some reason or other which I have never understood, were originally always held in private. But it was on the recommendation of the Franks Committee that the system in vogue for Industrial Injuries was copied and brought into force by the Minister last July for cases under the National Insurance Acts. Now, during all the years that I sat in the Minister's chair, as I have said, I never heard of a single case of complaint under that procedure. The Franks Committee not only recommended that that procedure should be copied for National Insurance, but went on in paragraph 184, I think it is, to recommend that the local appeal tribunal system should be adopted for Family Allowance cases, and that the appeal machinery for all three classes of claim should be assimilated. If they are to be assimilated, that necessarily involves, of course. that family allowance claims shall be subject to exactly the same rule as regards private or public hearing as claims under the other two Acts to which I have referred.

The noble Lord, Lord Silkin, has suggested that the Franks Committee never intended that personal or private circumstances should in cases of this type become public property. That, of course, is so, because in paragraph 76, which is a recommendation in favour of public hearings, the Franks Committee said: The consensus of opinion in the evidence received is that hearings before tribunals should take place in public except in special circumstances. A number of possible exceptions have been suggested, the most frequent being that where the disclosure of intimate personal circumstances may be necessary the hearing should either be always in private or alternatively the applicant should be entitled to request or require a private hearing. But when we turn on to their recommendation as regards insurance claims in general, we find at paragraph 175 that they say: National Insurance local tribunals sit in private, whereas Industrial Injuries local tribunals sit in public except it so far as a tribunal may for special reasons otherwise direct. We have already concluded in Part It that, with limited exceptions, hearings should be in public. We think that this general principle should apply to National Insurance local tribunals. Then they go on to say: … we recognise that some cases before them involve the disclosure of what we have described in Chapter 8 as 'intimate personal or financial circumstances'. In accordance with our general recommendation we consider that the chairman of a National Insurance local tribunal should have discretion to decide that any such case be heard in private. I said at the beginning that I thought it was a matter of good sense that this rule, which has been in vogue for Industrial Injuries for ten years, and which has recently been adopted for National Insurance, should also be applied in the Family Allowance cases. I thought that the noble Lord, Lord Latham, rather decried the desirability of uniformity in this matter, but I must remind him that, whereas hitherto we have had two wholly different systems of adjudication, for the future the system of adjudication is to be the same. We shall therefore have the position, I think as a matter of certainty—and certainly as a matter of probability—that on one and the same day a local appeal tribunal will be hearing an Industrial Injury claim, a National Insurance claim, and a Family Allowance claim; and it would be confusing to all parties, to say the least of it, if, on one and the same day, they had to apply a different procedure according to the claim which was being put forward.

I think that this Amendment could be supported only if it could be shown that all, or the vast majority of, the claims under the Family Allowances Act involve the disclosure of intimate personal details: but that is by no means the case. In fact, it is very far from being the case. As I well remember, the common matters upon which dispute used to arise (and no doubt still do arise) under the Family Allowances Act are questions such as these: whether a child is a full-time attender at school, and whether a child is an apprentice and, therefore, although he is past school age, is to be counted as one of the children for the purpose of a family allowance. Questions also commonly arise as to the residence condition—whether the condition about residence in this country is or is not satisfied. Therefore, in my submission, there is virtually no difference at all between family allowances and claims in respect of an industrial injury. In both cases circumstances may arise where a private hearing is to be desired, but in the ordinary run of cases there is no objection whatever to a hearing in public.

Lastly, I say that, in my view, natural justice surely demands that it is right to give the same opportunities to each side appearing before a tribunal. Of course, Parliament can say that all hearings of a particular nature shall be in private, as they have done in cases connected with the income tax: and it is equally right, I am sure, to give a presiding judge the power to decide whether or not certain matters shall be determined in private or public; but it seems to me that it can hardly be right to give to one party, and one party only, a power over the procedure of the tribunal before which he is putting his claim.

I am afraid I have spoken too long The noble Earl, Lord Bathurst, will, I expect, express the Government view, and I shall not be at all surprised if the Government view which he expresses here is the same as the Government view as it was expressed in another place. I have great admiration for the noble Earl's political ability and skilful advocacy. His father was an old personal friend of mine, and I am sure, therefore, that he will not take it amiss of me, or in any way detracting from the admiration I hold for him if, knowing the penchant (if I may call it that) of your Lordships who sit on this side for now and then giving the Government a "kick in the pants", I remind your Lordships that this is not a Government measure but is a Private Member's Bill.

4.40 p.m.

EARL BATHURST

I do not know whether those kind words used by the noble Viscount were as a sweetner, in order to ask me to invite your Lordships to support his views against the views taken by the noble Lord opposite. I assure your Lordships that my right honourable friend is of the same opinion as my noble friend, Lord Ingleby. If I may say a few words in reference to what the noble Lord, Lord Silkin, said, I should like to read a paragraph from the Franks Report. It is paragraph 77: We are in no doubt that if adjudicating bodies, whether courts or tribunals, are to inspire that confidence in the administration of justice which is a condition of civil liberty, they should, in general, sit in public. But just as on occasion the courts are prepared to try certain types of case wholly or partly in camera, so, in the wide field covered by tribunals, there are occasions on which we think that justice may be better done, and the interests of the citizen better served, by privacy. My right honourable friend said, in reply to a Prayer on a similar matter which came before another place, that if he saw that this provision was adversely affecting the work of these very important tribunals he would not hesitate to make the adjustment which seemed in the circumstances necessary. I assure noble Lords that my right honourable friend has full power to make such adjustments, holding such courts in private if that should be necessary. My right honourable friend is in complete agreement in the main that these tribunals should be held in public. I have to advise noble Lords that the Amendment should be resisted.

LORD LATHAM

A good deal has been said about the Franks Report. There is a danger of regarding it as Holy Writ. It was an admirable Report, but we are not thereby precluded from individual thought or Governmental action which may differ from the Franks Report. Really, if I may say so, the noble Viscount cannot pray in aid of the Government the Franks Report or the natural justice of avoiding two different sets of procedure, for the Government took no steps to eliminate one of the systems of adjudication—namely, the present system of adjudication for family allowances. It was left to a private Member to introduce a Bill to remove something which the noble Viscount regards as against natural justice—namely, two different systems of adjudication, one for Family Allowances and the other for National Insurance. In these circumstances, I think it is a little idle to claim—

VISCOUNT INGLEBY

May I interrupt? I am afraid the noble Lord must have misunderstood me; I could not have made it quite clear. What I said was that it hardly seemed to me to be natural justice to give one party to a claim some right which was denied to another.

LORD LATHAM

I am much obliged to the noble Viscount. What he is saying is that it is desirable that there should be uniformity. If there is uniformity, then it will not be because of Government action; it will be because of a private Member's action in introducing this Bill to alter the adjudication procedure for family allowances to that followed in national insurance.

Then the noble Viscount sought to show that the situation in regard to claims for family allowances was analogous to claims for industrial injuries. He went on to say that as regards experience in adjudication in respect of industrial injuries, so far as lie knew, there had been no serious complaint by the applicants or the claimants under the Industrial Injuries Act. That may be so. But there is no evidence that there will not be complaints as regards the procedure to be followed in connection with family allowances. We do not know—nobody knows. Only 7 per cent. of the claims in respect of family allowances have been heard orally, so no evidence can be prayed in aid that the procedure proposed in connection with adjudication for family allowances will work without complaint.

Then I was a little surprised—if I may say so, a little sorry—that the noble Viscount said that it would be unfair for one party to have the right of determining whether his case or her case should be held in camera. But this is not a legal action. I do not think we ought to look at it from the point of view of one party versus another party. As I understand it, a claim is heard only because either there is some doubt whether a person is entitled to a family allowance or because, there being a family allowance due to somebody, there is some question about to whom it should be paid. That is the issue. Who is the other party? The other party is a servant of the Ministry: the insurance officer. I think that is right. And the matter comes for adjudication before a tribunal which has been appointed by the Minister.

I quite agree, subject to certain modifications flowing from the unassailable Franks Report, that it is the case that the tribunal before which the claim comes, and which determines the claim, is appointed by the Minister. It seems to me that, even if it were appropriate to bring in as a parallel or analogy the case of one party versus another, in point of fact this is not one party against another, in the ordinary accepted sense. I very much hope that the good work which is intended to be done by this Private Member's Bill in transferring the adjudication of family allowance claims to the National Insurance system, will not be impaired, as it is likely to be impaired, by refusing to give the claimant, the ordinary man and woman, the right to have personal details not disclosed. Personal details, family details, details and information which can affect the future family life, can affect quite a number of persons other than, and in addition to, the actual claimant, and I hope that noble Lords will support the Amendment which stands in my name.

On Question, Amendment negatived.

Clause 1 agreed to.

Remaining clauses and Schedule agreed to.

House resumed.

Bill reported without amendment.

House adjourned during pleasure, and resumed by The LORD CHANCELLOR.