§ 2.50 p.m.
§ LORD LUCAS OF CHILWORTH rose to call attention to the scope and powers of the Council on Tribunals and to its operation; and to move for Papers. The noble Lord said: My Lords, before I address myself to the subject matter of the Motion standing in my name on the Order Paper, may I offer to your Lordships a brief word of explanation as to why there has been such a long delay between the time when a Motion of this character was put upon the Order Paper, which was in 1960, and its coming before your Lordships this afternoon. I put the Motion down upon the Order Paper, "To consider the First Report of the Council on Tribunals", just after the end of its first operative year, which was in 1959; but just as I was about to negotiate through the usual channels a fixed date for the Motion, your Lordships' House suffered a calamitous loss by the death of the Chairman of the Council on Tribunals, the late Lord Reading. I would here interpose a belated tribute of appreciation for what 154 the noble Marquess did in the embryo stage of the work of this Council.
As was to be expected, the noble and learned Viscount the Lord Chancellor experienced a great deal of difficulty in finding a successor. So delay followed upon delay, and it was hardly worth while discussing a Report of a body such as the Council on Tribunals when it had not a Chairman. Then, when the Lord Chancellor found a Chairman, there was further delay in compiling the Second Report. I therefore came to the conclusion that events in this field of administrative law had gone so far ahead of a Report confined to the activities of the Council in 1960 that I would alter the Motion, and it now stands in these words:
To call attention to the scope and powers of the Council on Tribunals and to its operation; and to move for Papers.
As your Lordships may know, the 1960 Report was published just two days ago. The question that I want to pose for your Lordships' discussion is: can the Council on Tribunals adequately operate in this vast area of administrative law, which is growing and growing? The figures given in the Report are impressive. There were 128,000 cases that came before tribunals and statutory inquiries last year. The warning which the Council give in paragraphs 25 and 124 is immense. For good or ill, this country has travelled very far along the road of administrative law. No longer can the ordinary citizen of this country rest assured that
no one will do him wrong, because in the ultimate there are English judges who will see that right is done by him".
I do not claim any credit for those words of wisdom: they were uttered by the noble and learned Lord, Lord Birkett, some years ago, and they have stuck in my mind ever since.
Who is there to take care of the interests of the ordinary citizen? I thought that the leading article of the Daily Telegraph of yesterday, when discussing the Report of the Council on Tribunals, was apt. This is what it said:
To the average citizen the sheer burden of being governed is becoming too great to be carried without help. Within, and parallel to, the normal laws of the land and the courts which enforce them is a vast supplementary legal system which reflects the points of friction between the individual and Government departments.
We stand in danger all the time, with this great growth of administrative law, of being turned into what has been called "the handmaiden of administrative convenience." We must be ever vigilant, because at the present time in many of the assaults upon the private liberties and the property of the ordinary citizen there is no recourse to the ordinary course of justice.
§ So what this country needs to-day—and it is illustrated, in my view, by the insistent demand that is ever growing—for the protection of the ordinary citizen against the incursion of the administrative bureaucracy upon his rights and his property is something akin to the Scandinavian Ombudsman. I wonder whether that is a correct procedure for this country. I wonder whether the Council on Tribunals can be moulded, and its powers increased, so that it can eventually fulfil the need that is so apparent, and become the English version of the Scandinavian Ombudsman. If the Council is going to do that, and if this administrative law is going to be so moulded that the citizens of this country have right done by them, then a lot of the cherished and accepted constitutional doctrines in this country will have to give way.
§ I would invite your Lordships to consider the history of the progress of the Tribunals and Inquiries Act through your Lordships' House. During its passage (which, as your Lordships know, followed the publication of the Franks Committee Report in 1956) there was inserted in the Bill what apparently at that time was considered to be a small Amendment, but that small Amendment revolutionised the whole of the Act of Parliament. As the Bill was presented to your Lordships' House, the Council on Tribunals was circumscribed and limited to strong procedural and other matters referred to it either by the Lord Chancellor or the Secretary of State for Scotland. The noble and learned Viscount who sits on the Woolsack does not need me to remind him of the stubborn fight your Lordships put up to have some teeth put into the Council on Tribunals. There was inserted in Section 1 (1) (c) a paragraph which gave the Council on Tribunals the right to consider any matters which it determined were important for its consideration. But what 156 was more important, it gave the ordinary citizen the right to make reference to that Council so that it could see that justice was done to him.
§ As the Report says, that brought about a development which was hardly foreseen and which has opened up a huge field, on the development of which we can only conjecture. But the Council, in its Report, says that the majority of its time will be spent not so much on considering the procedure of tribunals as in considering the procedure, behaviour, and conduct of statutory inquiries. That is a matter which has engaged the Council almost predominantly during these last twelve months, and is the event which, I suggest, has overtaken the Report, which confines itself to a year gone by.
§ I should like to say a word about the membership of the Council. It is a body of persons, learned in law, and eminent in other spheres. It is a body which can, and I think does, command the respect of all. But there are one or two things in the evolution of its work in supervising the field of statutory inquiries that we must guard against. The last thing that it must do is to become professionalised and bogged down in detail, which I have the unhappy fear it may be in the future. I offer this suggestion in passing. I think it needs a larger expert staff. The independence of the executive is of supreme importance. It cannot become another Ministry, or an appendage of an existing Ministry. It must work quickly. Justice, like charity, is done better if it is done quickly. We have had the painful experience only recently of the Minister of Housing and Local Government taking nine months, after his inspector has issued a report, to give his decision. It may be another nine months before the adjudication and examination of that case is completed by the Council on Tribunals. It must be borne in mind, as the Report quite rightly says, that the Council on Tribunals is a part-time body.
§ In discussing the matter which I am asking your Lordships to consider, I intend to confine myself principally to statutory inquiries. I think that we—and when I say "we" I mean Members of Parliament and the Government—must ask ourselves a few stern questions and provide some honest answers. What is the object of a statutory inquiry? Surely 157 it must be that the ordinary citizen who objects to administrative action can feel that he has been given a fair hearing. Secondly, it must be the paramount duty of an inquiry to see that all the facts are marshalled, examined and cross-examined, so that the Minister who has to give his decision will be fully acquainted of all the facts of the case. It must not be regarded as just a piece of machinery to allow disgruntled objectors to "blow off steam". Do the Government realise that they have not only to satisfy themselves that they are doing right—which up to date has proved to be rather easy for them—but also to prove to the public at large that right is being done, which recent history has proved is a little more difficult?
§ So this matter now stands, in my view, at the cross-roads. During the debate upon Second Reading of the Bill which set the Council on Tribunals, the noble and learned Viscount on the Woolsack promised that there would be a code of procedure that would regulate the procedures not only of the statutory inquiries but, in some cases, of tribunals as well. We have not yet made the draft rules. Two-and-a-half years have now passed. I quite appreciate the reasons for the delay, because all the learned bodies have had to be consulted, and I hope the Government will see that Parliament is consulted. In this particular instance, Parliament cannot have a statutory instrument placed before it on the basis of "Take it or leave it; you cannot amend it". It is also important that Parliament should have the opportunity of considering this code of procedure for statutory inquiries before it is crystallised into a form which the Government cannot alter.
§ I would say, frankly, that such a code of procedure must give the Council on Tribunals complete authority to see that the procedure before the inquiry, during the inquiry and after the inquiry, is so modelled as to safeguard the rights of the citizen at all stages. I cannot see any reason why, when a statutory inquiry is held, and a Ministry has an interest, it cannot be compelled statutorily to attend that inquiry, to state its reasons in open court and to be cross-examined on the facts it adduces. A Ministry should not be allowed to by-pass a statutory inquiry and then, after the responsible Minister has given a decision, 158 enter by the backdoor and give evidence that it has not given in open court.
§ My Lords, the first principle is that objectors to administrative action are entitled to have full knowledge of the case they have to answer, but there have been instances in which that information has been withheld. It was so in the ironstone case in North Oxfordshire, where, under Section 15 of the Town and Country Planning Act, 1947, the Ministry of Housing and Local Government usurped the functions of a planning authority. If a Ministry usurps the functions of a planning authority it should also accept its obligations, and one of the obligations must always be that it should acquaint the objectors with full details of the case they have to answer. I would ask the noble and learned Viscount if he would take particular notice of these points, because there are cases in our knowledge where the procedure has been wrong.
§ There is another thing that I would ask the noble and learned Viscount to consider—it was argued in your Lordships' House right the way through when we were dealing with the Act, and it is one of the Franks Committee's recommendations that has not been accepted. That is, that on all these tribunals and statutory inquiries we should have independent chairmen and not servants of the Ministry which is interested.
I know the classic case against many of the arguments I am putting forward. But first of all I would ask the noble and learned Viscount to agree with me that it is fundamental that the citizen who feels he has been aggrieved should have the right to know at all stages of an inquiry the facts that are being cited against him. I know the bureaucratic reply. Your Lordships have only to peruse the evidence given before the Franks Committee, and I should like to quote just one sentence from the official report of the evidence of the Ministry of Housing and Local Government given on Wednesday, February 26, 1956, at page 75, paragraph 644. The Chairman of the Franks Committee was cross-examining the Permanent Secretary to the Ministry of Housing and Local Government, and he was asking why, before or after a ministerial decision, particularly after, the objector should not know the whole of the facts that had influenced the Minister's decision other than those
that were given in open court. This is the question:
… if considerations came in other than those heard at the inquiry and in fact determined the ultimate decision, he might be entitled to know? …
The answer from the Permanent Secretary was this:
… I do not think he is entitled to know.
In that one sentence we find the whole of the bureaucratic view on statutory inquiries.
§ My Lords, the citizen has a right to know everything at every time except in a case where that knowledge would endanger the safety of the Realm. I say that the Council on Tribunals must see that it has the authority to examine procedures before, during and after.
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, I wonder whether the noble Lord would allow me to answer one question. I think it was a slip on his part when he implied a moment ago that the chairmen of the tribunals, as opposed to the inspectors who hold inquiries, are not independent. I do not know of any chairman of any of the 2,000 tribunals who is not an independent person. If the noble Lord has any case in mind I will investigate it, but I think that he was really dealing with inspectors.
§ LORD LUCAS OF CHILWORTH
My Lords, I am grateful to the noble and learned Viscount for his intervention, but I think I may not have said it. Perhaps the noble and learned Viscount did not hear me say it, but I said that I am dealing at the moment essentially with statutory inquiries. I am coming to tribunals in a minute. I am not implying that there is any lack of independence among chairmen of tribunals.
Again, it was admitted in evidence given before the Franks Committee that the chairmen of statutory inquiries, the inspectors, were servants of the Ministry. When statutory inquiries have reached the stage they have to-day, when counsel are briefed, Silks and juniors are briefed, on either side, it is more than ever important that the person who sits in authority should be experienced in weighing evidence and should ensure that all the facts are brought before that inquiry. We have only to take the two cases that are uppermost in all our minds: the chalk- 160 pit case and the Oxfordshire ironstone case. If the evidence of the Ministry of Agriculture in the former had been given before that inquiry it might have saved a great deal of trouble that has been experienced since.
In the ironstone case—I do not want to go over it; you Lordships can read the whole of the facts as I have stated them in your Lordships House—a huge nationalised concern came to an inquiry and did not trouble even to present a case. Learned counsel said that he did not intend to bring any evidence. He claimed immunity for the members of the staff of the Iron and Steel Board because, he said, they ranked as civil servants. Then he went on to say—a quite improper statement—that he did not propose to have any figures produced to prove anything about the economic necessity but he would see that the Minister had those privately after the inquiry was closed. The man conducting that inquiry, armed with powers of subpœna, never said to him, "Are you going to produce any evidence?"
By a strange coincidence, two days before I raised that Question in your Lordships' House a Question was asked in another place. During the course of the evidence it was stated that unless the applicants were allowed to have planning permission £2 million of the taxpayers' money would be wasted, and a Question was asked in the House of Commons as to whether that was true. The Minister of Power answered and said:I have ascertained the facts. There would be no nugatory expenditure if the application was not granted.It is a fair question to ask: why was not that evidence given at the inquiry? I have just cited these as examples. These cases are usually on the acquisition of land, and I can see no reason why the Government Department concerned should not come frankly before the inquiry and state its case, and the person presiding over that inquiry could then see that all the relevant facts were there. The inspector, unlike the chairman of the tribunal, has no authority to give a verdict; he can only recommend to the Minister.
In my view, the Council's powers of investigation must be increased. They must have authority, in my view, to call 161 for papers; they must have authority to summon witnesses, and they must report without delay upon all matters considered under Section 1 (1) (c) of the Act, and that report should be laid before Parliament. After the inquiry, in any investigation which the Council on Tribunals seeks to make, the Minister of the Department concerned who has given the decision against which there is objection should state his own case: he should not have it stated for him by the noble and learned Viscount the Lord Chancellor. Responsible journals of public opinion have been devastating in their criticism of the procedure adopted in the chalk-pit case, and I would say, I think quite fairly, that the consensus of public opinion seemed to think that it was wrong for the noble and learned Viscount the Lord Chancellor to assume the position of defending his colleagues at all costs, laudable though that might be as a general principle. I must confess that this was particularly distressing, more than ever to those of us who hold the office of Lord High Chancellor of this country in such high esteem and the present occupant of the office in such personal affection. But with a proper procedure that would never have happened; and it should not happen in the future.
May I tell your Lordships, quite frankly, that I addressed the Question to the noble and learned Viscount on the Woolsack last December, asking him if he would refer the case of the Oxfordshire ironstone inquiry to the Council on Tribunals; I asked him to consider whether I had made a prima facie case for such a reference. In three months' time the noble and learned Viscount gave his considered opinion, but that considered opinion was a detailed opinion that must have been given to the noble and learned Viscount by the Department concerned. One could not expect the noble and learned Viscount to have an answer to every query.
I hope he will not mind my saying—and I say it with great respect—that I think that on that occasion the noble and learned Viscount made a mistake. That was what the Council on Tribunals was there for. So I referred the matter to them myself. The Council must be given power to investigate and to report to Parliament, even, if necessary, right 162 up to the point of stating its view and giving its reasons why a wrong decision has been made. It is for the Council to give to Parliament its opinion and advice and to state its reasons; and it is for Parliament to take action, if it so desires, since it is to Parliament alone that the Minister is responsible.
There is one other question that is raised, and raised very pertinently, and that is the heavy burden of costs that is placed upon the ordinary citizen. If I might again cite as an example the North Oxfordshire ironstone inquiry, when the livelihoods of small farms and workers were in jeopardy, it cost £5,000 of the ratepayers' and private individuals' money to fight that case, a case which it could be argued should never have been brought. Although counsel for the objectors made an application for costs, the inspector did not grant it.
I remember that in the course of the Second Reading of the Bill under which the Council operates the noble and learned Viscount the Lord Chancellor quoted the words of Magna Carta, that justice cannot be purchased. But justice is purchased to-day if one can afford in cases such as this to brief counsel. What chance does the ordinary impecunious citizen stand against the might of Government Departments with taxpayers' money, nationalised industries with taxpayers' money, to brief leading counsel and juniors to get what they want? I believe that there should be in this code of procedure some means by which an appeal can be made to the courts if an application for costs has been refused in the case of these statutory inquiries. I have finished with statutory inquiries.
There are only two cases to which I should like to draw your Lordships' attention in the operation of administrative tribunals. I think that, by and large, we can say that tribunals have operated well. They have operated well because of the independence of the chairmen, and because a tribunal can give a verdict; and in the majority of cases there is an appeal to the courts on questions of law. But what I feel is that consideration should be given to whether or not, in all private cases, there should be an appeal to the courts on questions of fact and merit. As the Report points out in the case of the Rent Tribunal, 163 unless there is an, appeal on fact there is virtually no appeal at all.
If your Lordships will allow me—I will deal with it briefly—I should like to bring out the point which the Report makes on the question of discretionary inquiries. The noble and learned Viscount will remember that during the debate we had on Section 1 (1) (c) he said that the only thing he wanted to take out of the subsection was when the Minister thought it necessary to send down one of his people to interview one of the objectors and to discuss some matter with him. He did not want that to be considered to be an inquiry. It is within my recollection that he said, "But that is the only exception I want to make." When the Bill went to another place that clause was amended, and there were put into the Bill words to the effect that a statutory inquiry for the purpose of Section 1 (1) (c) was an inquiry which the Minister had a duty to carry out. When the Amendment came to your Lordships' House I do not think it was in any of our minds that inquiries upon the scale, as the Report cites, of the Oxford roads inquiry, which was an inquiry at large, would be classed as a discretionary inquiry and therefore outside the surveillance of the Council on Tribunals. I do not see any reason why discretionary inquiries, as well as any of the others, should not come under the jurisdiction (if I may use that term) of the Council.
I should also like to direct your Lordships' attention to two other points which I think are important they are on the question of what I might call departmental obstruction to the Council's carrying out its statutory functions. One concerns the procedure under the National Health Service Tribunal. The noble and learned Viscount will have it in mind, as will many of your Lordships. On this matter the Council said:Meanwhile, the duty Parliament has laid on us can be exercised only on sufferance.The other point is of more importance. I can only draw your Lordships' attention to paragaph 48 of the Council's Report, which states that the Minister of Pensions was asked in another place what steps had been taken to ensure that Members of the Council, in recognition of their special duties, were enabled to retire with members of the National Insurance Local 164 Tribunals while they considered their decision. The Council add that in a Written Answer the Minister replied as follows:The answer to the first part of the question is 'Yes' and to the second 'None'.The Council satisfies itself with the under-statement thatIt therefore appears that no further steps are to be taken by the Minister to enable the Council to fulfil their statutory duty.I hope your Lordships will not think that the language I use is too strong when I say that that is a piece of arrogant ministerial insolence that ought never to be allowed by the Government.
I have delayed your Lordships too long, but I thought it would serve some purpose if I drew attention to public disquiet. I hope that I have not exaggerated in anything that I have said, and I hope that the Government, and all those whose responsibility it is, will see that the Council on Tribunals can fill that important rôle of the British equivalent of the Scandinavian Ombudsman. That depends not only upon the Government but upon the Council. Perhaps I may end by quoting one paragraph from one of the many leading articles that The Times has published on this matter. It is as follows:Responsibility as guardians of the public interest now rests with Lord Tenby and his colleagues. They will be looked to as the men who can insist on rules being laid down and kept to which will put the private citizen on a real and not a bogus equality with the bureaucrats. They must not allow themselves to be inveigled into accepting this or that privileged indulgence for Whitehall. Lord Tenby is likely to have a hard fight ahead of him. He may count in facing it on the widest public support.My Lords, I beg to move for papers.
§ 3.38 p.m.
§ LORD CHORLEY
My Lords, I am sure you will all agree with me in expressing thanks to the noble Lord, Lord Lucas of Chilworth, and to say how indebted we are to him for giving us the opportunity of discussing the working of these tribunals in the whole context of administrative law. I think it would not be too much to say that the focus of attention in regard to these sort of matters which, in the eighteenth century and the time of general warrants and John Wilkes, was upon the courts themselves as the guardians of liberty, is now beginning to be put, at any rate to some 165 extent, on the Council on Tribunals. That is because, as the noble Lord has said, more and more the citizen comes into contact with the Government, and indeed with the law, through administrative provisions in Acts of Parliament rather than through the ordinary administration of the Common Law.
Therefore, it seems to me valuable that we should have an opportunity of discussing these matters against the background of the useful reports which the Council on Tribunals are now publishing. I hope that we shall have further opportunities of doing so as these Reports come out from year to year, because undoubtedly one of the most important things which we in this House can do at the present time is to keep these matters very much under review. As always, vigilance is the safeguard of freedom in these matters.
I believe that even more than inquiring into the actual work which the Council has done over the two years and more that that body has been in existence, it is necessary to inquire into the general problem of the scope of its work, which the noble Lord, Lord Lucas of Chilworth, has been doing, and to discuss whether the powers conferred upon the Council are wide enough and whether it is possible effectively to extend them—which is not at all an easy field of inquiry; because we have to remember that the system of administrative law in this country is a creature of comparatively recent development, at any rate in the mature or maturing form in which we now have it, and that it has grown up very much ad hoc, so that in all kinds of ways it is anomalous. The work of the administration which enforces it is also marked by quite a number of anomalies.
The method of administering this branch of the law has been, on the whole, completely unscientific. The control which has been exercised over it (if I may say so, almost in parenthesis) by the High Court of Justice has been in a sense sporadic. Certainly, it has been marked by an extraordinary complication of procedure and in regard to the law it has been an exceptionally expensive affair which has not encouraged the ordinary citizen to enlist the help of the courts. Nor when, from time to time, he takes his financial courage in his hands and has recourse to the courts 166 does he find on the whole that their assistance is sufficiently effective to give him what he, at any rate, regards as justice or, indeed, to allay the widespread public uneasiness which undoubtedly exists. I have not the slightest doubt that the noble Lord, Lord Lucas of Chilworth, is right when he underlines that particular element in the situation.
The machinery at the disposal of the High Court, derived as it is from an earlier age, and for the control of very differing types of authority, is not really adequate to the tasks imposed upon it and it has always seemed to me, as it did to a famous predecessor of the noble and learned Viscount—Lord Haldane—that it was really time we took stock of the situation and tried to devise a more scientific and up-to-date system. I believe it was the realisation of this which led the Franks Committee to recommend the setting up of new, more effective and more economical machinery within the scope of the Council of Tribunals, the works of which we are discussing this afternoon. This was not in any sense to solve this problem, of course, for it is altogether bigger than anything the Council can do. But it does pursue a very typical English method of easing the shoe where it pinches particularly badly.
The Council have very limited powers and it is no good expecting from them very radical solutions of these problems. But within the severe limitations of their potentialities, which are fixed by the Statute which sets up the Council, the Council, it seems to me, as it seemed to the noble Lord, Lord Lucas of Chilworth, have the possibility of doing some very useful work. Indeed, I believe they have already done a good deal. In their Reports (one of which fortunately came out just in time for this debate) the Council have pointed out a number of anomalies. It is not very clear how far those have been cleared up, since the time is short; but one is hoping that the noble and learned Viscount or another speaker for Her Majesty's Government will be able to tell us whether some of the anomalies pointed out in the Report have been or are in process of being cleared up. That this has, to some extent, been done appeared from Answers to Questions which have been put in another place.
167 I suggest that it is our job this afternoon to have that side of the matter very much in mind and to press the Government to give us clear and sincere answers in regard to these particular aspects of the problem. In the first place, of course, there has been a good deal of grit in the machinery of administrative law. There has been no kind of uniformity in the rules of procedure and this has led to a good deal of heart-burning and to numerous anomalies; and the job of providing uniform rules is one of the tasks which the Council have been given to get on with. I believe their first Report showed that a very useful start had been made on that work, and it seems clear enough from the second Report that they have been getting on with that work. Of course, they can go only some way with it. It is not a job which can be done quickly. But it seems to me that, so far as the work has gone, the Council are deserving of our congratulations and thanks. On reflection it seems astonishing that in the past, over the twenty, thirty or even fifty years during which this administrative law has been building up, it should never have been the business of anyone in Government to see that this was done before. We can only express gratitude that at last, in 1959–61, it is being attended to.
Next, and more important, is the supervision of the actual work of the tribunals and of the holding of the inquiries which are going on in hundreds all over the country all the time, and which some of my friends who appear before tribunals tell me is very uneven in character; while some are very good others are not so good. Clearly, the Council are taking this part of their job seriously and it is interesting to see that the members have been going up and down the country, sitting in at hearings and getting a really practical idea of what is going on, instead of relying on what they are told, which is always a temptation in a situation of this kind. Again I am sure it will be found that that is much the best and most effective way of handling this problem.
On the whole the Council seem to be satisfied with what they have seen, but there are in the Reports quite a few reservations. Unfortunately, those reservations are couched in very vague 168 terms, so that perhaps in the end one is left wondering a little whether or not they are pulling their punches. I hope not and I hope that we shall be reassured on that particular point. If I may make a criticism, one of the difficulties is that the Reports are written in what one might call typical "Whitehall English" of the kind that Sir Ernest Gowers used to criticise so effectively. It occurred to me that it would have been helpful if Sir Ernest Gowers had been given a preview of these Reports and had been able to put them into rather more terse and clear English.
It seems to me that in the Second Report the strictures on the work of some of the tribunals are distinctly stronger—may be because the Council were not satisfied that what they said in the earlier Report had been sufficiently attended to. I hope I am not taking too severe a view of it, but it seems fairly clear to me, at any rate, that in a minority of cases the Council feel that the situation is not really satisfactory. I wonder whether the noble and learned Viscount will be able to tell us if specific cases have actually been brought to the attention of the Minister responsible for the particular tribunal, or to his own attention, because that, probably, would be more valuable. We know that he has been taking a great personal interest in this work. I can quite understand that the Council do not wish to pillory in the pages of their Report any particular tribunal which they are not satisfied is operating well, but I think we ought to be assured that where they have in fact found grounds for criticism, then these criticisms have been brought to the attention of the proper authorities in detail, so that action can be taken; and that where weaknesses have been found they can and are in fact being remedied.
Now so far so good, and no doubt some civil servants will think that so much good is good enough, and will be content that the whole matter should rest at that point; but, of course, this was only a rather minor aspect of the matter from the point of view of the Franks Committee. The Franks Committee wanted to go a good deal further and to have matters dealt with by the Council which were basic to the whole problem which they had been set up to inquire into and to report upon. It seems to me that the real object of the Franks 169 Committee was to reassure the public, who were suspicious that these inquiries were camouflage. The Committee themselves found nothing very much wrong, but they also found that the people of England as a whole had formed a very different view.
We had had a long period during which Whitehall had been denounced by very eminent judges. We all remember the late Lord Hewart's book, The New Despotism; we had had Crichel Down, and we had had all the events which had led to the setting up of the Franks Committee. It is a view commonly held by the ordinary man in the street that civil servants are avid for power. Lord Hewart had told them that that was so, and the sort of things which happened at Crichel Down persuaded them that Lord Hewart was right. They therefore took the view that these inquiries were very often just camouflage, in order to make people think that justice was being done, but that the real decisions had often already been taken in bureaucrats' offices in Whitehall, and that the whole decision had been "cooked" from the start.
My Lords, that is not the sort of view which I have ever taken of this problem. I do not myself believe that civil servants are at all avid for power. I think civil servants are a very hard-working and able part of the community, who are concerned to get their job done—one of the most important jobs that any part of the community has to do in the modern, complicated State. But undoubtedly, in the course of getting that work done, the less interference there is with them the easier it is for them to get on with the job and some of them have undoubtedly, from time to time, behaved in a way which is perhaps not so scrupulous as we should all like it to be. That was what the Franks Committee were anxious to safeguard against as far as possible. It was for that reason, I think, that an independent tribunal with adequate powers was set up, for such a tribunal could show up that sort of conduct if it in fact occurred: and provided it had adequate powers of inquiry, and power to have all the matters which were relevant brought before it, the setting up of such a Council on Tribunals would be likely to prevent the very happening of conduct of this sort.
170 When the proposals to set it up were brought before Parliament, as my noble friend Lord Lucas of Chilworth has pointed out, it was not found to have a very good set of dentures, and your Lordships insisted on more teeth being put into its jaw, if one may put it that way—and I think the noble Lord, Lord Lucas of Chilworth, deserved our thanks for acting as a very capable dentist on that occasion, and for taking a particularly active part in tightening up the Bill. To-day, one of the main points with which we are concerned is whether the Government have not been doing their best to pull out some of the teeth which we put in on that occasion: fortunately not painlessly, because the reaction of the Council has been a pretty quick one, which shows that the nerve has been touched. I am sure we all hope that they will continue to react strongly to the tooth-pulling process which seems to have been going on.
This brings me to the Buxton case, which seems to me to be a test of the sincerity of the Government in regard to this matter—perhaps the acid test. What happened in this chalk-pit case? It is so familiar that I do not propose to go over it. What happened from Major Buxton's point of view was that he gave his evidence and called his witnesses at a public inquiry, and thought that he had gained a victory. If it had been in a court of law, then he would have gained a victory. But then he saw it snatched from him behind the doors in Whitehall. My Lords, it seems to me that the attitude of the Government in regard to this case has been thoroughly insincere. If the Government had said, "It is our policy that there should be ample chalk or lime for agricultural purposes, and the amenities of the people who live in Essex must give way to that policy", then I, at any rate, would have respected them, because the policy of the Government, which they have been put into power to carry through, must be the essential thing throughout these problems.
Whenever the recommendations of an inspector are contrary to the clear policy of the Government, most of us, I am sure, would not in any way blame the Minister in question for overriding the report of his inspector: but, of course, 171 Ministers have never taken that particular attitude in this case. What they in effect said, sitting in Whitehall and consulting other experts behind doors, was, "We are satisfied that on this question of amenities the inspector, who spent days down there going over all the land, listening to the expert witnesses who were called before him, listening to them being very carefully and stringently cross-examined, was wrong, and that the people who had never visited the place and never been called at the inquiry, who wrote opinions on bits of paper which passed backwards and forwards between one Ministry and another in Whitehall, were the people who were right." That is the sort of thing which entirely confirms the suspicions which the general public had and have as to the way these things are done, and really, in a sense, makes the whole of what one would regard as the major activities of the Council on Inquiries almost a footling and futile procedure.
All that the noble and learned Viscount has said in defence of the Minister of Housing, in my view, has just deepened the suspicions of the public. It is sometimes almost a trap to have a great advocate at one's call. It encourages people to take up a position which is obviously an indefensible one, because they say: "Well, we have Mr. So-and-so, and he is one of the ablest men, if not the ablest man, at the Bar, and he will persuade the jury"—or the judge, as the case may be—"that we have a good case, although we know perfectly well we have not". It is perhaps unfortunate that the noble and learned Viscount, whose astonishing ability in matters of this kind is well known, has been relied on, so to speak, by the Minister of Housing to pull his chestnuts out of the fire in this way.
We have all heard on numerous occasions—and I feel a little diffident about using the phrase again—that justice must not only be done, but must be clearly and manifestly done. It seems to me, and must certainly seem so to Major Buxton, that not only has justice not been done in his case, but that it has clearly and manifestly not been done. It would have been so easy, if this sort of line of action was going to be taken in the Ministry, to have reopened this inquiry and put these people, these technical civil servants 172 from the Ministry of Agriculture and from the Ministry of Housing, into the box and let them give their views about this matter in public, and subject themselves to cross-examination—that very powerful weapon which has not, so far as anyone here knows, ever been used to check upon the evidence which these people gave to the Minister, and upon which the Minister took action in overthrowing the report of his inspector.
The whole of what has gone on in Whitehall has, as is always the case, been wrapped up in secrecy and in equivocation. Where, for example, is all the correspondence which must have passed back and forth between the Council and the Minister, and the Council and the noble and learned Viscount, which obviously ought to be made public so that we know what has been said? When questions were put only a week or so ago (perhaps it was a little more than a week or so ago) in another place, the Prime Minister himself said—actually, I think he slipped up—that the correspondence had been made public. So far as I know, it has not; but the mere fact that the Prime Minister himself said it had shows that he felt that it was reasonable and right that it should be made public. If that is so, surely that ought to be done.
I am quite sure that the noble and learned Viscount's heart is in the right place with regard to this matter. He showed that during the discussions which were held when the Franks Committee Report was being debated here, and when the Bill to set up the Council was before your Lordships. His heart is in the right place, on the side of justice; but here, as has been very aptly said in the current number of Public Law, that important and admirable British journal of administrative law, in the debates on this case in your Lordships' House he has been wearing his ministerial hat and not his judicial wig. That seems to me to be a very apposite view of the matter.
My Lords, I should like to finish my speech by quoting from the editorial comment on the noble and learned Viscount's speech in this House, when the noble Lord, Lord Lucas of Chilworth, I think brought this matter up before. The editor says:Does not the Lord Chancellor see that his argument sounds completely unreal to the ordinary complainant? If the only question 173 was one which was apt for extensive examination at the inquiry, then that examination and the recommendation based on it should surely be accepted. Everyone agrees that the Minister may properly not follow his inspector's recommendation for reasons (such as policy) not apt for examination at the inquiry. But the inquiry must and will appear farcical (and no earnestness on the part of the Lord Chancellor can prevent this) if the evidence of experts A, B and C at a public inquiry, with rights of cross-examination, is accepted by the inspector and then set aside, because of the evidence, on the same point, of experts D, E and F, which is given in private and not open to examination. Perhaps the inspector ought not to be required to make any recommendation but merely to collect the evidence. Perhaps his report ought not to be published. Perhaps there ought not to be any public inquiry at all. Any of these solutions would be more logical than a procedure which looks like a clumsy façade to conceal the reality of Departmental power.My Lords, that seems to me to sum up the matter very succinctly and in a forthright way. It seems to me that unless the Council on Tribunals can get some reasonable answer and some satisfaction from the noble and learned Viscount and from the Government in regard to these matters, it will lose that confidence which it must have if it is to do a good job of work in the interests of justice and of the public in this country.
§ 4.8 p.m.
My Lords, this is a very important subject, and I think we should be grateful to the noble Lord, Lord Lucas of Chilworth, for his classical disquisition on this matter. I will confine myself here to the question of planning appeals and the subject of compulsory purchase. I speak subject to correction, but I understand that rules have been drafted for inquiries in connection with planning appeals and inquiries in connection with compulsory purchase by local authorities. I am not completely conversant with Parliamentary procedure, but I hope that when these rules have been finally settled they will be laid before Parliament in order that they may be properly considered.
In the first place, will your Lordships allow me to refer to the old and rather dreary subject of the method of appointment of inspectors and other persons who are required to hold inquiries? There is a feeling that the inspector and other people appointed to hold inquiries should be appointed by the Lord Chancellor's Department and not by the 174 Minister. It is the old story not only of justice being done, but of its appearing to be done. I make no criticism of any inspector or of any Government Department in this connection; I have no doubt that they all act perfectly fairly. But, unfortunately, people appearing at such inquiries might think that an inspector appointed by a Minister does not enjoy that degree of independence which is essential to the exercise of judicial or quasi-judicial functions.
Another point, which I hope is dealt with by the draft rules, relates to what is known as "discovery of documents". It is submitted that a local planning authority should be obliged to provide a list of the documents to which it will refer at the hearing and should be obliged, on request of any parties interested, to produce and provide copies of any documents and plans relevant to the matters which are the subjects of inquiry. And, conversely, it is only fair to say that a local planning authority ought to be entitled to call upon the appellant, and any person who has indicated his intention to appear, to provide a list of the documents and plans to which he intends to refer at the hearing and to produce and provide copies.
Another point relates to answering questions by a Government Department. I understand the position to be that a representative of a Government Department cannot be called upon to answer questions directed to matters of Government policy. On the face of it, this appears to be a highly desirable form of restriction. However, it might be carried so far that it would exclude ministerial directions which, strictly speaking, are not in the nature of Government policy. This is a matter upon which I should like some information.
Although I have been speaking about planning appeals, I may say that exactly the same observations relate to the draft Rules which are being prepared in relation to the compulsory purchase of land by local authorities. Finally, I have been asked to mention a matter in connection with agricultural land tribunals and the discovery of documents. It is submitted that the procedure of the discovery of relevant documents should be the same as that in ordinary court actions. These are only a few and rather sketchy points, but I know that your 175 Lordships' House abounds in veritable Justinians, who know a great deal more about this and every other subject than I do. With these few observations, I will resume my seat.
§ 4.12 p.m.
§ LORD DENNING
My Lords, your Lordships are dealing this afternoon with an important new experiment in our constitutional system, the Council of Tribunals, set up to safeguard the individual against the State, against the Government Departments, in these days when the growing power of the Departments is an anxiety. When the Bill, which is now the Tribunals and Inquiries Act, 1958, was before your Lordships' House I ventured to describe it as a Bill of Rights—not the whole Bill of Rights, but the first chapter—because there are three chapters in this Bill of Rights.
The first chapter deals with tribunals—that is, the bodies that deal with what I may call justiciable disputes, disputes as to the right and wrong between an individual and the State: how much a man is to have as a pension if he is invalided during war service; how much industrial injury benefit is he to get; how much National Assistance he is to get. All these matters go before tribunals, which are now part of our regular judicial machinery, but not staffed by judges or by courts—staffed by tribunals. That is the first chapter. My noble and learned friend on the Woolsack did a great deal in initiating the Franks Inquiry and this Act. So far, much has been done.
There are two further chapters needed to our Bill of Rights. The second one is as to inquiries, inquiries where there is a great deal of what I might call justiciable matter—finding out the facts in a matter where the eventual question is one of a policy decision by a Minister, such as a planning appeal. This was almost left untouched in the 1958 Act. It has to be worked out by the rules procedure.
The third chapter, not touched at all, is what I might call maladministration: bad administration, misconduct by a Government Department or its officers, where it is accused by an individual of wanting in fair play, such as in the Crichel Down matter, or of giving a con- 176 tract to one person or of favouritism to another. Misconduct by officials, maladministration, was the whole motive which led to the setting up of the Franks Inquiry, but it was excluded from their deliberations because they already had enough to do. Dealing with accusations by the public against Government departments and their officers, the third chapter of the Bill of Rights, has not been touched. To some extent, the tribunals and inquiries were dealt with in the last Parliament and I was hoping that in this Parliament we could have dealt with maladministration.
If I may, I will deal first with the chapter on tribunals. May I say that the Council on Tribunals, from their Reports, have done a really magnificent job in seeing that the rules of procedure will be governed by the rules of ordinary fair play? And with reasoned decisions having to be given for appeals already made, if need be to a higher tribunal, and on points of law to the courts, there is very little now wanting in our system of tribunals. On this chapter, I have only one matter to raise—and it was raised by the Council themselves; that is, that they are confined to tribunals which have been actually set up. There are a large number of decisions still taken by Departments and Ministers which ought to be the subject of tribunals and which are not, and the Council ought to be authorised to consider whether some of these decisions ought not to be put before the tribunals.
Let me give your Lordships only two instances. One simple and homely instance is where the parents of a child, it may be a handicapped child or an ordinary one, wish to select a certain school for him, but the local education authority say that they do not approve of their selection, because it will be too expensive to send their child there or because in some way they do not consider the school suitable. Such a dispute between parents and education authority is decided by the Minister or by his Department on paper. Ought not that to go to a tribunal for decision? At present, the Council of Tribunals cannot do anything with it.
Let me give another, a commercial, example. It concerns a cotton manufacturer who wanted to instal in his factory new machinery which was to 177 come from Germany at a cost of £150,000. If this machinery was technically superior to anything we could make in this country, it could be imported duty-free, but if we had equally good stuff here then he had to pay duty on it. The machinery manufacturers here said that they had machinery just as good. The issue to be decided was whether or not it was as good. Let us see what the Minister of State, Board of Trade, said in another place when he came to deal with this matter. He said:Very often the Board of Trade have to decide cases where the makers and importers do not see eye to eye and it is the duty of the Board of Trade, which has no axe to grind in this matter, to adjudicate on these difficult questions. It is an unpleasant duty and one which, for my part, I would gladly shed.There is a decision which is very suitable for a tribunal. But the Council on Tribunals has not any place in saying that it should go before a tribunal; it is still with the Minister. So on this first chapter which is on tribunals I would suggest (it is rather indicated in paragraph 31 of the second Report) that the Council on Tribunals should have the power to say that certain decisions of Departments should not be made within the Department, but should be made by an independent tribunal. There I leave the chapter on tribunals.
Next I come to the chapter which I may call the chapter on inquiries. As I said, there were only four or five lines in our 1958 Act about inquiries. But, indeed, the method was dealt with then for inquiries on a Governmental circular, saying how inspectors would behave. How glad we were that they were to give a Report; that the Report was to be made available to the parties; and, in addition, that if there was any new evidence given to the Minister after the inspector's report it should be made available to the parties! So was the Government circular. But, in truth, there have been two cases, at least, as your Lordships will know, which have given grave anxiety about the procedure at inquiries.
Under the 1958 Act rules of procedure are to be settled by the Lord Chancellor after consultation with the Council. But in regard to these inquiries I would point out two weaknesses in the present rules that need to be remedied. First, who is an aggrieved party? Who can 178 complain of one of these decisions? Take the case of Major Buxton, who had his farm and his animals near to land where a chalk-pit was going to be opened. He said that the working of the chalk would affect the wellbeing of his animals and livestock. Was he a party aggrieved? He went to the courts of law, and the Judge said that any ordinary person would think he was a party aggrieved, but the judge held, under the legal decisions, he was not a party aggrieved because he had not what is called a "legal grievance". That case was not taken further. I believe that recently the Privy Council have widened the meaning of "party aggrieved" so as to include a person who has a genuine grievance because an order has been made which is prejudicial to his interests. If we depart from the old narrow definition (as I hope we have done), then a "party aggrieved" means, for instance, a person like Major Buxton, whose interests are prejudicially affected, and interested bodies. That is the question as to who can appear at these inquiries.
But the point on which more emphasis has been placed in regard to this chalk-pit case, as it is called, is that after the inquiry was held by the inspector and he reported in favour of Major Buxton and the applicant, consultations were held by the Minister with another Minister, the Minister of Agriculture, Fisheries and Food. Let me say one thing in favour of what was done in 1958. Nothing of what happened would have been known but for the steps which this House took then. It is only now that we have reasoned decisions that we know what has happened. So we did a very good thing in getting as much information as we have. But now comes the question which has been raised as to how far the Minister can take advice on expert matters, on matters of fact, as distinct from evaluating the weight of evidence.
It was my duty when I was the Judge hearing appeals from pension appeal tribunals to consider this very matter, and Mr. Parker (as he then was) argued many of the cases before me. I should like to give your Lordships an illustration of how we decided it. There was a naval captain who at the age of 66 rejoined the Navy for his service during the war. He was subjected to great anxiety and 179 worry and then suffered from a severe disease of the eyes, glaucoma. When he put in his claim for his pension it was supported by expert evidence of naval doctors and specialists that this disease would be affected by worry. But the Ministry said, "No"; they did not think glaucoma was affected by his war service. But they called no evidence.
The only material that they had for rejecting it was the advice of the medical member of the tribunal. Rightly or wrongly, it was held by the court over which I had the honour to preside that that was not admissible. It was not merely the evaluation of or giving advice on the weight of evidence: the medical member was not merely doing that, but was giving his own expert opinion without the party having an opportunity of commenting upon it. So the captain was awarded his pension. If the principle in that case (it was the case of Starr v. Minister of Pensions, 1946) were to be applied in the case of Major Buxton, there might 'be room for the opinion which the Council themselves expressed. One does not know their view until one sees it in the Annual Report. They expressed the opinion that:Prima facie it appeared to us that Major Buxton's feeling of injustice might well be justified".So it is vital in this second chapter of the Bill of Rights, in rules of procedure for inquiries which are to be submitted to the Council on Tribunals, that all those things should be put right so that there should be fair play. That is all that is needed but it is what one expects: fair play in the conduct of these inquiries.
May I say that I should like to go further? The powers of the Council in regard to inquiries are far less than those in regard to tribunals. They are entitled to hold tribunals constantly under review. They have no power, however, and no right to hold inquiries constantly under review, but only in such matters as may be referred to them or such matters as may be brought up specifically on occasion. I should like to see the Council on Tribunals have power to keep inquiries constantly under review and to deal with the procedure; and, indeed, not merely confine themselves to a Report which we only see annually, but make reports (the Act contemplates it) 180 to my noble and learned friend the Lord Chancellor or another Minister at the time. Surely it is more effective that this House should be able to see the report at the time, than to have to wait until it is commented on in the Annual Report. So there is room for great improvement in the second chapter.
What about the third chapter, maladministration, as in the case of Crichel Down, which set the whole thing into being, and about which we have done nothing? When Government Departments or their officers go wrong occasionally (it does happen, although not very often) and there are complaints against them, if they allot one contract unfairly or if they allot land as in the case of Crichel Down, what remedy is there for the citizen? The only remedy at the moment is by Private Questions in your Lordships' House or in another place, by a Motion on the Adjournment or by an ad hoc inquiry specially set up as in the case of Crichel Down or of the policeman, John Waters, of whom your Lordships may have read the other day. Is that machinery sufficient for the needs of the day? Is it not time we considered further machinery? I would not supplant the old well-tried ones, or necessarily go so far as the Scandinavian Ombudsman, but there is a parallel already, for the Comptroller and Auditor-General on the financial side, as I think my noble friend Lord Morrison of Lambeth said, puts the fear of Parliament into Whitehall. Perhaps even the Council on Tribunals, strengthened, could receive accusations of misconduct made against Government Departments and could deal with them. At the moment the Council has no executive authority and has no deciding authority. It deals only with procedure and ensures that there is a fair procedure in tribunals and inquiries. Its functions are only advisory. It is our champion, but it is like a David with a sling and no stones.
We need this third chapter—what I may call the "Crichel Down chapter" of the Bill of Rights—to be investigated and implemented. Those are the three matters. Whilst we are grateful to the noble and learned Viscount the Lord Chancellor for the great work he has done on the first Bill of Rights, and to the Council on Tribunals for the work 181 it is doing on tribunals and inquiries, there is a great deal yet to be done before the rights of the individual are adequately safeguarded in these days of the omnipotent State.
§ 4.32 p.m.
§ LORD AMPTHILL
My Lords, my main purpose in rising to intervene in this debate is to draw attention to the responsibilities laid upon the Council on Tribunals in respect of statutory inquiries. These are referred to in paragraphs 18 to 22 and again in paragraphs 91 to 94 of the Council's Second Annual Report. To my mind, paragraph 91 is the most important, because after setting out the Council's powers under Section 7A of the Tribunal and Inquiries Act, 1958, they say this in the last sentence of that paragraph:We take this to mean that in suitable cases we have the power to consider the administrative procedures both before and after the inquiry.My own experiences have convinced me that the Council have indeed a very important part to play in those directions. They are, of course, handicapped by the absence of the draft rules to which they refer in paragraph 93, but in the meantime the procedure to be followed in cases of compulsory acquisition of land under the Defence Acts is covered by the statement made in another place on March 6, 1959.
Anyone who, like myself, has been involved in one of these appeals will realise the truth of what the noble Lord, Lord Lucas of Chilworth, said in opening this debate—in a speech with which I find myself in complete agreement—about the difficulties and frustrations which face an appellant. Therefore I think I can best assist your Lordships' House in considering this matter by briefly recounting some of my own experiences which will reinforce all that has been said, not only by the noble Lord, Lord Lucas of Chilworth, but by all other noble Lords who have spoken.
I must at once disclose my personal interest, in that my wife and I are co-trustees for a very small estate of under 300 acres in Dorset, known as Ringstead Dairy Farm, which lies on the coast in Ringstead Bay, just East of Weymouth and to the West of Lulworth. My wife's uncle, the late Captain Ernest Lane, died in January, 1958, and left this portion 182 of his estate to our son, appointing my wife and myself trustees until the boy reached his majority. At the moment he is only eleven. On taking over as trustees early in 1958, we found that not only were the Air Ministry still continuing their war-time occupation of 130 out of the 278 acres, but they were giving serious consideration to acquiring permanently some 60-odd acres in order to erect some sort of installation for the United States Air Force. Whether it was radar or wireless was not clear at that time.
Despite the fact that this beautiful and hitherto unspoiled bay was within that part of the Dorset coast which had only quite recently been designated under the National Parks and Access to the Countryside Act as an area of natural beauty, we found that the Air Ministry had, in fact, already obtained the consent of the Dorset planning authorities, while in August, 1957, we were to learn that the Ministry of Housing and Local Government had written on the 15th of that month—that is August 15, 1957—the installation would not gravely injure amenity as the site was in a relatively isolated hollow and was sheltered by the existing plantation.In parenthesis I may add (and this becomes relevant later on) that at that time the Air Ministry and the United States Air Force were considering a different type of installation from that which appeared later. At that time it was what was called an ionospheric forward scatter station that was proposed. This comprised a large number of comparatively short masts; and the meadow in which these masts were to be erected is, in fact, the site of the ancient church and village of Ringstead.
Thanks to a subsequent change of plan, I am pleased to say, the Ministry of Works, with our glad consent, have now scheduled this particular part of Ringstead as an ancient monument. It is a beautiful spot, and the noble and learned Lord, Lord Goddard, who knows intimately, and loves every inch of that lovely coast, has told me that it was from this spot that the last of the Roman legions sailed away from this country. This is the spot of which the Minister of Housing and Local Government said the amenities would not suffer by the installation of this ionospheric station! In short, my Lords, the pass had really been sold 183 before my wife and I came into the picture as trustees.
It is very difficult to find out exactly what was going on during these critical summer months of 1957, and in any case it is not relevant to the case I am trying to make. But I can say this. On April 8, 1957, Captain Lane received a letter from his land agent in which the latter reported receiving a communication from the Regional Land Commission stating that the Commission now understood from the Air Ministry that they did not propose to acquire permanently the 67 acres on which to erect a number of radio masts. Captain Lane and his agent were thus lulled into a sense of false security until, in August, 1957, there was some Press publicity about the proposed wireless station at Ringstead. On August 30, 1957, Captain Lane's agent telephoned the Air Ministry, and an official of that Ministry told the agent that the first he had known of the station going ahead was when he heard it on the 9 o'clock news on the Saturday night; and he added that, so far as he knew, they were still waiting for plans. They were still waiting for plans when Captain Lane died in January, 1958; and they went on waiting for them for some time to come, as I shall show.
My wife and I, as trustees for a minor, were not able to accept this, to us, unsatisfactory state of affairs, and in April, 1958, I wrote to the then Secretary of State for Air requesting further information. I pointed out inter alia that if indeed it was proposed to erect a wireless or a radar station at Ringstead, the 20 acres of amenity woodland included in the area were of no sort of use for that purpose. This correspondence with the Secretary of State dragged on until March, 1959, in which month my wife and I were invited to meet Air Ministry officials who would show us what was proposed. We met them. I have been a factory director for twenty years and I am used to dealing with drawings, but I have never seen such rough and unsatisfactory sketches produced as were produced at that meeting. There were also some photographs of a similar station in Greenland or some other remote spot.
It was very disturbing to us to find at this meeting that the United States Air Force had not yet provided the Air Ministry with final details of their re- 184 quirements, but it horrified us also to learn that the scheme, as then laid out, entailing cutting down a large number of trees at the seaward end of one of the woods. The only satisfactory feature of that meeting was that by this time the actual acreage required had fallen from 68 to 14. This was in part due to the American Air Force deciding to have a tropospheric station instead of an ionospheric station, and in part, I suspect, due to the pressure which we were bringing Ito bear on the Air Ministry. The actual site had by this time been transferred to another meadow which is not an historical monument.
Early in April, shortly after this meeting, the Air Ministry served notice to treat for 14 acres and there was some "to-ing and fro-ing" between them and our agents. On May 7, 1959, the Air Ministry wrote a letter to our agents in which they said:The Minister will consider any reasonable objections submitted in writing within"—my Lords, within—twenty-one days from the date of this letter.I mention this because a statement in another place laying down the procedure stated that objections should be submittedwithin a specified time, which will be not less than twenty-one days.We have never found out under what powers the Ministry stated we had to answer "within" twenty-one days. We had to obtain a short extension of time in order to brief counsel, and our agents duly submitted our reasoned objections. On June 2, 1959, we submitted our reasoned objections and finally the inquiry sat on November 30, 1959.
Before giving your Lordships a brief account of the actual inquiry and its results, I must explain the difficulties under which the trustees and their advisers laboured in preparing their case, because to a large extent the same difficulties must face any private citizen who seeks to oppose a Government Department and, in particular, the Defence Department—more particularly a Defence Department acting for a foreign power. In the first place, we were dealing with a site for a new secret system of signalling, the details of which were known only to the technical experts of the Air Ministry—and how much they knew I do not know—and obviously 185 something must have been known to United States Air Force technicians, and even they were unable to provide us with final details.
Our professional advisers pointed out to us that in their opinion our objections would virtually have no chance of success unless it was possible to put forward at the inquiry alternative sites which would be as good as, if not better than, Ringstead for this highly specialised purpose. Therefore we had to try to find out from the Air Ministry what were the special requirements and why Ringstead was regarded as so suitable. This was a slow and painful process, like drawing teeth, I think partly because it had to be referred back to our American allies.
Meanwhile, we had found a consulting engineer familiar with this type of equipment—it was not easy, but we did find one—and on August 12 we wrote to the Air Ministry for the information we required to prepare our case. On September 9, and later that month, the Air Ministry sent us certain information but it was not until October 13 that the Ministry sent a written statement of their reasons for proposing to acquire the land. They would not accept our suggestion that their experts should collaborate with our consulting engineer in finding alternative sites, nor would they give us any information regarding the frequencies or wave-lengths on which the station was to operate. The consulting engineer whom we had retained fortunately had a good idea of the wave-lengths and frequencies which would be used, and he and our land agent toured the South Coast making many tests with suitable apparatus, as a result of which they located three or four possible alternative sites, which included Portland Bill.
Then, just before the inquiry, which was on November 30, the Air Ministry relented and provided details of wavelengths. This, of course, was too late to be of any real service to us. Thus, as your Lordships will see, we were gravely handicapped in the, preparation of our case, not only by the absence of vital technical information but also because without Air Ministry co-operation, which had been refused, our consulting engineer was very much restricted in his efforts to find alternative sites, because, 186 of course, he could not get entry into the many areas on the Dorset Coast which, as your Lordships know, are occupied by the Service Ministries.
Little wonder, then, that at the actual inquiry our suggestions for alternative sites were "shot down", in the words of the ultimate report:One, because of interference with Army activities; one, because the terrain was unsuitable; and one because the degree of damage to amenity at Ringstead although grave"—they got round to admitting that the damage to amenity was grave—and to be deplored would not justify the much heavier financial outlay which would be needed.The fourth suggested site of Portland Bill I will refer to later.
I must come to the actual inquiry itself which opened at the Guildhall, Weymouth, on November 30, 1959. The inspector, or "appointed person", which I believe is the correct name, to hold the inquiry was that eminent Queen's Counsel Mr. J. T. Molony, who was in fact appointed by the noble Viscount on the Woolsack. I have absolutely no quarrel at all with the way in which Mr. Molony conducted the inquiry and, if I may say so without presumption, I think it was absolutely admirable.
After nearly two days' hearing in Wey-month the inquiry adjourned until a further hearing could be arranged in London, because the inspector, or appointed person, wished to hear further legal argument about the Ministry's powers compulsorily to acquire land from private citizens for the use of the Armed Forces of a foreign power. This is where we had a justifiable complaint, because I think the Ministry should have come to the inquiry prepared to answer that question, for obviously counsel representing the trustees was going to press for information on that point, and in fact he did so. The Air Ministry counsel confined himself to saying that the Ministry's powers could not be precisely determined. For this reason we had to have a third day's hearing, which was more expense, and, for reasons of illness, including my own, the further hearing could not be held until February 12, 1960.
Thereafter we heard nothing for some time, but when I visited Ringstead in August that year, 1960, having heard nothing, I found contractors for the Air 187 Ministry already at work. I reacted very violently and very quickly. But shortly after that, a week or ten days later, in August, the manager of the hotel where we were staying brought me a copy of the local evening paper which had banner headlines, "American Wireless Station at Ringstead to go ahead. Lord and Lady Ampthill lose appeal". Two days later I received, forwarded from London, dated August 15, a letter from the Secretary of State for Air, and this letter, in accordance with the procedure announced in another place on March 6, 1959, gave a summary of the appointed person's findings. Among those findings was one that the proposed station would impose noteworthy damage on the amenities of Ringstead. So much for the Ministry of Housing and Local Government's view expressed three years earlier!
The inspector made six recommendations of which I shall quote only three, because the others deal with roads, fences and such details in the event of acquisition. The three main recommendations were:A. The proposed compulsory purchase at Ringstead should not be proceeded with for want of legal power.B. That Portland Bill offers the opportunity of accommodating the United States Air Force installation without appreciable detriment.C. If the legal opinion stated at (A) is not upheld the compulsory purchase at Ring-stead should be proceeded with only if and when the possibility stated in (B) (i.e., Portland Bill), has been explored and negatived by an authoritative high level inter-Service decision.My letter went on to say that the Secretary of State had decided that compulsory purchase should be proceeded with, that the Secretary of State had the necessary legal powers, and that Portland Bill was unsuitable because the available sites were too small and/or would obstruct and interfere with Admiralty establishments.
In view of this letter, all I felt I could do was to put down a Question for Written Answer in your Lordships' House seeking information about these legal powers claimed by the Secretary of State for Air, and this I did. It was during the long Recess last year. I gave the noble and learned Viscount who sits on the Woolsack private notice of my Question and he, with great courtesy, gave me a full reply in advance of the 188 Answer which was printed in the record. It was, in fact, printed in the record of proceedings in your Lordships' House for October 25, 1960 [OFFICIAL REPORT, Vol. 225, col. 1085]. In the face of this reply, the trustees felt they must accept the decision. Moreover, they were not financially able to test the matter in the High Court. Nevertheless, my Lords, we have achieved something. The fenced area will be only about four acres, with a further three acres on the seaward side which is restricted; we cannot plant trees or build houses on it. This is better than losing 67 acres, including 20 acres of amenity woodland. But it has taken three years of hard fighting and it has cost a very considerable sum of money which the estate can ill afford.
In view of the terms of the inspector's report, or rather the Air Ministry summary thereof, which is all we have been allowed to see, we asked the Air Ministry for our costs or at least a contribution thereto. We drew their attention in particular to paragraphs 321 to 326 inclusive, and in particular 323, of the Franks Report. In due course we received a letter signed by an Assistant in the Solicitors' Department of the Air Ministry rejecting our application. Therefore, within the last few weeks we have referred this question of costs to the Chairman of the Council on Tribunals, for which reason I must say no more on this subject, though in paragraph 122 of the Second Report of the Council on Tribunals I think they rather expect that my submission to them may be only the first of many.
I apologise for taking up so much of the time of the House in giving an account of our experience in the Ring-stead case. I felt justified in doing so because I believe that this Ringstead inquiry was the first public one to be held under the procedure announced in another place on March 6, 1959. Therefore, in a sense we were the guinea pigs. I can only hope that it will be possible for the Council on Tribunals in time to clear away the frustrations and difficulties which we faced. To my mind it is very important that this detailed code of procedure should be introduced as soon as possible, because then, and only then, will it be possible for private citizens to have some check on their Ministries.
I have, by implication and possibly directly, said many hard things about the 189 Air Ministry and other Ministries involved, but I should like to say that now that work has started at Ringstead we have received the maximum co-operation from the Lands Department of the Air Ministry in an attempt to preserve the beauty and amenities so far as possible. They have succeeded in resiting the station slightly so that no trees will have to be cut down. For the same reason the Air Ministry have insisted that the two 120 foot masts should be brought down in sections. If they had not arranged that, we might have had to cut down something like 100 trees. For all this the local residents and we trustees are grateful. None the less, it is sad to see Ringstead Bay go the way of Tyne-ham and Lulworth and other lovely places on the Dorset coast. I beg to support the Motion so ably moved by the noble Lord, Lord Lucas of Chilworth.
§ 4.58 p.m.
§ LORD BIRKETT
My Lords, in another department of our way of life, and a very important department, too, when the last batsman comes to the wicket, it is an accepted doctrine that he is not expected to make many runs. There is another very comforting reflection that comes to me at this moment: that in that situation he is not supposed to last very long. Therefore, coming as I do at this moment in the debate, I could not pretend to supply anything new to the subject matter. However, I still should like to add just a few words—and they will only be a few words—if only by way of endorsement of many things which have been said by previous speakers, and notably by the noble Lord, Lord Lucas of Chilworth, who introduced this subject. I know that it is quite a conventional thing to congratulate the mover or introducer of the debate on the selection of the topic, but I think I voice the feelings of everybody in the House when I say that the noble Lord, Lord Lucas of Chilworth, is really to be congratulated with sincerity because of the importance of the choice of subject which he has made to-day. And I would add, for my own part, that I think he is to be congratulated also upon the manner in which he surveyed this wide field of administrative law, as he termed it, and put forward his various submissions.
190 It is always said, and I think with very great truth, that one of the great tests of the civilisation of any country is the way the laws of that country are administered; and that, of course, applies not merely to the High Court of Justice and to the magistrates' courts, but wherever judicial decisions are being made; and therefore it applies most notably in this wide field to which the noble Lord, Lord Lucas of Chilworth, has drawn our attention. I think the heart of the matter lies here; that the subject matter for debate is,To call attention to the scope and powers of the Council on Tribunals and its operation.I think the central and essential matter which is contained here is to see, in so far as it is humanly possible, that in all these tribunals (and there are now, I understand, over 2,000 of them; and the number is growing every year), and in the statutory inquiries, to which quite different considerations apply, there should be a procedure which not merely commends itself to the people who are brought into immediate contact with the tribunal or inquiry, as indeed Lord Ampthill in his survey of that particular case has shown us, but also commands the confidence of the general public. I think that can be achieved only if, as Lord Lucas of Chilworth, I think, emphasised right at the outset of his speech, the decisions approximate to that thing that we call justice.
I am bound to say that I always use the word "justice" with some hesitation. The Royal Courts of Justice are in the Strand; but they are also called the Law Courts. In my judgment, there is a great difference between the settled law and the thing we call justice. I have quoted before, I think, in this House, but certainly on many occasions, because I feel that it is a most important thing to keep in mind, a saying of George Eliot:Who shall put his finger on the work of justice and say 'It is here'? Justice is like the Kingdom of God: it is not without us, but it is within us, as a great yearning.Therefore, when I use the word "justice" I recognise all human fallibility; I recognise the different standards which are applied in different countries and in different places. But I think we all understand what we, in our English speech, mean when we say "Let us have justice as the supreme objective and the supreme attainment."
191 I am glad to think that in this Report, the Second Report on the Council on Tribunals, that element breathes through the whole of the text. I heard my noble and learned friend Lord Chorley speak about "Whitehall English". I sometimes think that he has a slight Whitehall complex, because I read through this document with the greatest interest—and, if I may say so with all modesty, I am a great lover of the English speech—and it did not strike me as being something that Sir Ernest Gowers would condemn. I should like to quote two passages on the immediate point that I am making. One is in paragraph 8, where the Report says:It seems probable that before long this work will be exceeded in volume by work brought to the Council by members of the public. If this proves so, it will show that there is indeed a need for an impartial body to handle complaints and to look constantly for ways of meeting the public demand for high standards of administrative justice.In that language I can find nothing of which to complain. Then there is another passage to which I should like to call attention, in paragraph 21:Subject to these considerations, however, our general task in relation to inquiries is much the same as in relation to tribunals—to see that standards are applied which satisfy the ordinary person's sense of justice and that these procedures bear those characteristics of openness, fairness and impartiality which the Franks Committee laid down for tribunals and inquiries.Again, I have no complaint with language of that kind, either from the point of English or from the point of good sense.
I do not know who compiled the document, but I, for my own part, should like to congratulate the compiler or compilers upon the production of this Report, for I think that it presents the problems which have to be met in the sphere of the tribunals and in the sphere of statutory inquiries, with great fairness, with great force. And it also, as I submit, in all its sentences, breathes that air of saying, "What we are concerned to do is to have such powers that we can produce the procedure that will produce the results which will be appreciated by those who are brought into contact with the tribunals or the inquiries, and by the general public at large."
It is a mistake to think that procedure by tribunals or inquiries is something 192 new. We are rather apt to think that it has all come into being because of the silent revolution of the twentieth century which resulted in that thing which we call the Welfare State. No doubt it is true that so much has been taken over by the State in recent years that it has become absolutely essential that some method should be provided whereby disputes between the citizen and the State should be successfully decided. It has always been the proud boast of the English judges, certainly since the Act of Settlement in 1701, that they have stood between the citizen and the State in order to see that there is no interference with the rights and the liberties of the citizen unless they are justified by law. I think exactly the same spirit is manifest in this Report with regard to the tribunal.
But the fact is that for many centuries the central Legislature has been delegating its powers. There was the great Statute of Henry VIII which gave the Commissioners of Sewers their immense powers—practically making them dictators. That delegated power lasted for 400 years, and even down to 1930 the modern commissioners of sewage and drainage boards acted on the authority of that great Statute to make their by-laws. So it is no new thing. In the eighteenth century, when the Commissioners of Excise were appointed, there was a great outcry, and Dr. Johnson himself referred to those worthy gentlemen the Commissioners of Excise, asThose wretches hired by those to whom the hated excise tax is paid.They have survived, too; and although they are not what I would call exactly popular heroes in these days, the Commissioners of Inland Revenue, certainly so far as my knowledge goes, do their work very fairly indeed and with immense efficiency.
But the great revolution—almost greater than the revolution of the twentieth century which we have lived to see—was certainly the revolution of the nineteenth century. After 1832, it is amazing to think of the immense field of private and public matters—public health, child welfare, factories, criminal law: almost every subject one can think of—that was dealt with by the Parliaments of the day. We hear in modern days how difficult it is to find Parliamentary time to pass some small measure 193 which is so much needed—for example, an amendment to the National Parks Act, and matters of that kind. It is amazing to think how the Parliaments of the nineteenth century managed to get through all their work. So it would be wrong of us to think that this situation of to-day is novel or new.
The all-important thing is that it is now recognised almost universally to be essential. There was a time when the delegation of powers to tribunals was regarded with very great suspicion, particularly in legal circles. But the work of the tribunals—and I must add the work of the Council on Tribunals—has been such that I believe everybody is pretty well satisfied that this particular form of activity has come to stay and can be made to be a most beneficial thing.
There are just one or two matters to which I would refer in a sentence or two. This tremendous interest which is referred to in the Report by members of the public is, I think, all to the good. I believe the more people are interested in the administration of the law, in whatever form it takes, the better it is; because the law ultimately rests upon the pressure of public opinion and therefore I feel that that is good. But the danger I fear is that it may so grow in volume that the present system of part-time members may become really rather difficult. I should be exceedingly sorry, for my part, to see any departure from part-time members at the present time. It may, of course, become necessary but, as I believe the noble Lord, Lord Lucas of Chilworth, said in his speech, it would be a very great pity for the thing to become professionalised at this stage. I agree that it would.
The example of magistrates is a very wonderful example. When we speak of the administration of the law we are apt to think of the High Court, the assizes, the Old Bailey, and all that. But the real administration of iaw takes place in the magistrates' courts and it is essential that the spirit of justice in those courts should be in the tribunals, and I hope very much that the part-time membership will not be dispensed with—certainly not at the moment. I believe that if the procedure of the Council is followed (and it is obvious from the Report that it will be) great attention must be paid, first of all, to the quality 194 of the members we are to have on the court of first instance. We do not necessarily need people who are expert in some particular field, but people who are knowledgeable and wise and have the gift of judgment. We always used to say that a High Court Judge needed a little law but he needed more than anything else a great deal of common sense; and I think that that is certainly true of tribunals which come so closely in contact with ordinary men and women as these 2,000 tribunals do. Therefore the greatest possible care should be taken to see that our court of first instance, to which the public first come, shall be of the highest possible quality.
In that respect I cannot emphasise too much the necessity of having the right chairman. I feel that that is an immensely important matter. May I refer to a little past history? I see that the noble Lord, Lord Morrison of Lambeth, has left the Chamber, but he would recall that there were appointed certain chairmen—the noble Lord, Lord Morris of Borth-y-Gest, was one—dealing with very difficult topics before the Advisory Committee on Regulation 18B. All kinds of difficult questions arose and it was because of men like the noble Lord, Lord Morris of Borth-y-Gest, that that very difficult task was able to be accomplished without any public unease as a result. Therefore in these matters affecting so closely the lives, conditions and well-being of ordinary people I think it is very important that the chairman should be a man of outstanding ability. Emphasis has been laid in this Report on the important part taken by the Clerk. Clearly, in one or two instances the part played by the Clerk was regarded by the Council as being too predominant. But speaking of the scope and powers of this notable Council I am sure that the gravest attention will always be paid to the quality of that first court.
Then for my own part I always think there ought to be a court of appeal, certainly upon questions of fact. I have brought with me to-day a short quotation which I should like to read to your Lordships. It really goes back to that revolution of the nineteenth century about which I spoke, Lord Justice Bowen (who later became Lord Bowen, Lord of Appeal in Ordinary) in 1893 made some observations which I think are very 195 apposite to-day on this matter of appeals. There was a case (and the facts do not really matter now) where some parish overseers had tried to prohibit an appeal to the courts on an assessment they had made to the poor rate. When it got to the High Court, Lord Justice Bowen said this:In a free country the very essence of such a system must be that there should be an appeal to some body who can say whether what these officers are doing is just. If no appeal were possible 1 have no great hesitation in saying this would not be a desirable country to live in where every parochial officer might do as he liked in the matter. It is quite true there is enough difficulty in appealing as it is but if there is to be no appeal at all the circumstances would be intolerable.I think, therefore, there is no doubt that the ends of justice as I have tried to define them should be met and there should be, in addition to this carefully selected first court, an adequate and efficient court of appeal. In my opinion there should always be in the last resort an appeal to the courts of law on any point of law arising. No doubt the tribunals could be carried out by the writ of mandamus or certiorari, the ancient writs, but I think it is exceedingly important that the spirit which is manifest in this Report, which I think derives from our judicial experience in years past, should be maintained in the highest possible degree. Clearly, as this Report desires, the tribunals should have an appeal.
I think that is all I want to say about that, but I want to say just a word about the difficult matter of statutory inquiries. That is really very difficult and I appreciate every word that the noble Lord, Lord Ampthill, said. I hope what he said will be taken note of, as I am sure it will be, particularly by the Council themselves. As I see it, the difficulty is this. We are dealing with a state of affairs where the inquiry ordered by the Minister is a part of the Minister's discretion, a part of the making and forming of the Minister's discretion for which he is answerable to Parliament. It seems a hard thing to say, but I believe it is true to say that the Minister cannot hope to be an impartial person in the sense that a Judge is impartial. He cannot make an objective decision as a Judge can. In the long run as a Minister of the Crown he is a member of the Government and must do that which is in 196 conformity with the Government's wishes and the policy of the Government. In the long run it frequently becomes a matter of expediency as to what the Minister shall do. That is the grave difficulty.
I have felt that over the years in inquiries dealing with the National Parks. I remember that when the proposal was made to lift the waters of Ennerdale to provide water for the atomic factory at Sellafield, we, the Friends of the Lake District (of which I was President at that time), presented a most reasoned case and supplied the alternative sites where water could be obtained for those purposes. During the hearing, the inspector was obviously very much impressed, but the decision by the Minister was to turn down all our arguments, largely, I think, on the ground that the Government's policy was to support their procedure with regard to atomic factories at that time. But it is manifestly a situation of very great difficulty, and I agree that the suggestion which has been made—that instead of an inspector going down there should be some perfectly impartial person—is certainly worthy of consideration.
I must confess that this afternoon I was a little astonished at the freedom with which the case of Major Buxton was discussed, and I kept looking at this Order Paper, which refers to…the scope and powers of the Council on Tribunals…I think that in another place (I do not mean the place we usually designate as "another place", but in a court of law) there might have been some question from the Bench as to whether certain matters were really relevant. Because in this very Report, while the history of the matter is set out (and some very strange history, I quite agree), it is also set out that after the inspector had heard all the evidence, and decided that the appeal should be dismissed—that is to say, that the original ban should be upheld—the Minister came in and said, "On the contrary, I allow it". That is a very difficult situation; and I think that something really will have to be done to try to meet what is admittedly a very awkward and very difficult situation.
My Lords, let me end by saying that I find it very difficult to work myself up into, I will not say a passion, but indignation about Whitehall, about "behind 197 closed doors", "bureaucracy", and language of that kind, because all the time there comes into my mind a picture, let me say, of the Minister of Housing, my good friend Mr. Henry Brooke. I happen to know how anxious he is in certain matters with which he is concerned to do that which is right and just according to the evidence before him. Therefore, all that I will permit myself to say this afternoon on the Major Buxton case is that it is a very curious situation. But the position being, according to this Report by the Council, that further discussions are going on between the Council and the noble Viscount who sits upon the Woolsack, I am quite content to leave the matter there. I content myself with pointing out how strange an anomaly it is that there should have been an inspector sent down, all the objectors giving their evidence before him, the inspector coming to a conclusion and the Minister—as he is entitled to do—turning it down and disregarding all the recommendations made. My Lords, I am afraid that I have kept you a little longer than I intended, and I apologise for it; but I am very glad to think that this matter has been raised, and I am quite sure that good will come from it.
§ 5.24 p.m.
§ LORD CITRINE
My Lords, before the noble and learned Viscount the Lord Chancellor replies to this debate I should like to make a short intervention, though I have just discovered that our Deputy Leader wishes to follow me. My intervention is simply on these grounds: that what we are trying to do in grappling with this subject is really to adjust the liberty of the subject, which everyone must be anxious to preserve, to the growing needs of the community as represented by the State, and it is in the achievement of that adjustment that our difficulties are bound to arise. In reading through these two Reports of the Council on Tribunals it seems to me that they have been given a completely impossible job. They are a body of persons engaged in all kinds of pursuits, able to give only of their spare time to deal with this problem. We are told in their First Report that they are required to supervise—"review", I think, is the word—the constitution and the working of over 2,000 different kinds of bodies. I say that if they were working full-time they could not discharge that job ade- 198 quately; and therefore we should not deceive ourselves into assuming that, whatever Reports finally come from this body, they can deal adequately with the subject. At best, they can only grapple with principles.
They are to be concerned with the procedure not only of tribunals but of all statutory inquiries; and I am perfectly certain that there will be a constant increase in the number of statutory inquiries as the work of the various Government Departments and the Government expands. The Reports make a clear distinction between the functions and the constitutions of tribunals and statutory inquiries, but I do not for one moment believe that the average man and woman in the country knows that difference. I believe that when they read of an inquiry being held by someone on behalf of a Minister they assume that in some way that body is analogous to a tribunal. The tribunal adjudicates after hearing evidence: the inquiry is advisory.
An inquiry is held on behalf of the Minister, and he must, in the nature of things, have the final decision. Just how many of the documents the Minister reads and just how many consultations he has before he reaches that decision, is something which I hope the Council on Tribunals will say more about; but I am not one of those who believe it is possible to carry on the functions of government and, at the same time, reveal all that takes place inside the mechanism of the administration of Government. Nothing has been said in the First Report about inquiries. I say "nothing": they are mentioned by name, but there is no description of anything that they are doing. We are told in the Second Report, twelve months after the First Report was issued, that the Council are still awaiting the draft rules of procedure—and this, twelve months after their First Report was issued.
After those general observations I want to refer briefly to the Ministry of Pensions and National Insurance, which is mentioned in the Report. This body deals predominantly with workpeople and with questions upon which many workpeople feel very deeply. It deals with industrial injuries, for example, which were formerly dealt with by courts of law. They are now dealt with by the 199 tribunals set up under the Ministry of Pensions and National Insurance. The Council on Tribunals makes the significant observation—significant to me, at least, as a trade unionist and one who has had a good deal of contact with the minds of working men—that the officer of the Ministry sits adjacent to the members of the tribunal. Small as that may seem, perhaps, to some people who can draw distinctions and have clearness of mind and no prejudice on this subject, the Council took the view, which I personally very much endorse, that that procedure may easily give the impression that in some way the officer is a member of the tribunal which is really engaged in investigating an appeal against his judgment.
In paragraph 48 of the Second Report, which the noble Lord, Lord Lucas of Chilworth, mentioned at the outset, and which I did not recall after first reading the Report, with the same clearness as followed from his statement, something seems to me to be missing. I looked at paragraph 121 of the First Report with regard to this matter, and the text of it, in part, is this. It says:But in a few cases, and notably in the case of National Insurance Local Tribunals, the rules of procedure are so framed that for the purpose of arriving at their decision or discussing any question of procedure these tribunals are required to order 'all persons not being members of the tribunal, other than the person acting as Clerk to the tribunal' to withdraw from the sitting of the tribunal. The effect of this is to exclude entirely any Member of the Council and to deprive the chairman of the tribunal of any discretion to invite a Member of the Council to be present during discussion of these matters.The noble Lord, Lord Lucas of Chilworth, quite properly drew attention to what had happened to that observation, and in paragraph 48 of the Second Report we find that the Minister of Pensions and National Insurance, when asked what steps he had taken, said, as Lord Lucas of Chilworth mentioned:The answer to the first part of the question is 'Yes' and to the second 'None'".Now, what was the second "None" in reply to? The question was: what steps had he taken to ensure that members of the Council, in recognition of their special duties, were enabled to retire with members of the National Insurance local tribunals while they considered their decision? The Minister, in the Written 200 Answer which has been referred to, said:The answer to the first part of the question is 'Yes' and to the second 'None'".I do not know, but I can hardly believe that such an abrupt and extravagantly official answer—for that is what it is—which gives no information to anyone, could be the whole of the case. There must have been some correspondence, some letters, some observation, between the Council on Tribunals and the Minister before that answer was given. I hope that the noble and learned Viscount the Lord Chancellor will be able to tell us whether such a communication took place, or whether in fact consultation took place, and, if so, the nature of that consultation. When one talks about the liberty of the subject, I really think that a Minister in Parliament who can so ride off on a subject of so much importance to many hundreds of thousands, if not millions, of our people, is sitting pretty tightly upon what we have in the past been glad to call the liberty of the subject.
§ 5.35 p.m.
§ LORD SILKIN
My Lords, I am sorry that the noble and learned Lord, Lord Birkett, has been deprived of the privilege of being "last man in". Neither my noble friend who has just spoken nor I have given our names as possible speakers. In my own case, I had not thought I should be able to be here, and I was disappointed that I should not have the opportunity of saying something on this subject in which I have taken a very great interest in the past, and of which I have some little experience. The House has been deprived of more of the noble and learned Lord's speech than would otherwise have been the case. We were all charmed to hear him, and those of your Lordships who had the pleasure of hearing his discourses on the B.B.C. recently on "Seven Great British Advocates" will realise what we have missed.
The debate has ranged over a wide field, and we have had some very valuable contributions. I do not propose to go over those contributions in any way, except to say that I am quite certain that both the noble and learned Viscount on the Woolsack and the Chairman of the Council on Tribunals will have benefited from the debate we have had 201 here. For that, we are indebted to the noble Lord, Lord Lucas of Chilworth, for introducing the subject and for his constant interest in the question of tribunals and inquiries. Indeed, he has almost constituted himself as an unofficial Ombudsman, and we very much appreciate that.
The Report is a very helpful Report. It gives full information about what is being done in the field of inquiries, and it is rather startling to discover that last year no fewer that 122,000 cases were dealt with by tribunals, and that there were 5,700 statutory inquiries. Most of these statutory inquiries, by the way, were dealt with by the Minister of Housing and Local Government, and I would inquire, in passing, though perhaps I should not, how many of these he has been able to deal with personally. Obviously, most of these inquiries are dealt with at a much lower level. Perhaps it is unfair to judge the Minister personally on the decisions which sometimes emerge, for which, of course, he has to take responsibility but about which, in most cases, he cannot possibly know anything. A good deal has been said this afternoon about the chalk-pit case. I do not propose to say any more about it than I have already said in the past, except to repeat that I wonder whether in fact, at the time the Minister gave the decision, he was aware of that case or was not aware of it. It is quite on the cards that he knew nothing about it, and I am bound to say that, at the time when it called for a decision, it did not seem to give rise to very vital questions of policy, or the possibility of public controversy, which arose, of course, very much later.
I propose to limit what I have to say to the subject of the 5,700 statutory inquiries, relating mostly to town planning appeals and to objections to compulsory purchase. I have no personal knowledge, as has my noble friend Lord Citrine, about the tribunals, and I cannot say, therefore, how they are conducted, but I am aware, and have had considerable experience, of the town planning appeals arid these objections to which I have referred. I should like to say, first of all, that I am full of admiration for the quality of the inspectors who conduct the inquiries. They are a fine body of men—I do not think there are any 202 women inspectors—and I have never heard the slightest criticism about the conduct of these inquiries, or even about the procedure at them.
I was a little distressed to hear the other day, when we were discussing the inquiry on Oxford's roads, the condemnation and the criticism of Sir Frederick Armer. He may be right or he may be wrong in his decision—this is not the time to discuss that—but in my view to criticise him personally for his decision was grossly unfair. He took an immense amount of trouble, and there is not the slightest criticism about the procedure or conduct of the inquiry. To criticise a man because you do not like his decision seems to me utterly wrong.
Incidentally, I would say to the noble Lord, Lord Meston, that I think he was misinformed about the position of the inspectors. Perhaps the noble and learned Viscount the Lord Chancellor will reply in more detail, but the Lord Chancellor has a considerable voice in the appointment of inspectors, and I understand that they cannot be dismissed without his authority. I think think that this should be better known. It is understandable that there might be some feeling of doubt if it is not clearly understood that the inspectors are really the voices of the Ministers. In fact, pan inspector's duty is to report to the Minister concerned and to give him all the information which, in the nature of things, he could not possibly ascertain for himself. Therefore, the inspectors are servants of the Minister. But it should be clearly understood that in conducting pan inquiry, everything is being done to ensure that the inspectors carry it out with independence and objectivity. And I am satisfied myself that they are successful.
Such criticism as has been given voice to has not been about the reports of the inspectors, or about the way in which inquiries have been conducted, but about what has happened to the reports of inspectors after they have been presented to the Ministers. We had a full debate on the problems that arise, when we discussed the chalk-pit case, and I do not wish to repeat at any length anything I have said. But the public are entitled to feel a little apprehension at the fact that decisions are inclined to be incalculable. Obviously, when an 203 inspector is reporting to a Minister and he is acting as the Minister's eyes and ears, it must be for the Minister to decide for himself what should be the decision. But normally one would expect that he would disagree with his inspector only on one of two grounds.
One ground is the question of policy. The inspector, looking at things purely as an issue on its own, might take one view. The Minister, looking at the broad question of policy, having a much wider overall picture, might feel justified in taking a different view. But is it not fair that those who appear before the inspector should be informed of that policy at the time? Is it fair to an appellant that he should go on making a case without being clearly notified of the policy of the Minister in relation to the particular matter before the inspector, so that he may be fully acquainted and be prepared to deal with it? Let me give one or two examples. It is the policy of the Minister of Housing and Local Government not to permit development within a green belt. That should be made perfectly clear at the outset. But it should also be made clear that there are possible exceptions, and that the Minister himself has recognised that there may be exceptions to this general rule. There is also the policy of discouraging the building of offices and factories in certain areas. That policy, and the limits of that policy, should be made abundantly clear at the time of the inquiry, so that the person who appeals should be fully aware of them.
The other ground on which the Minister may set aside the views of the inspector is that the recommendation of the inspector is against the weight of evidence. That is not a question of a Minister receiving new evidence to override the evidence which his inspector has had before him, but a question of considering the evidence which has come before the inspector and seeing whether, on that evidence, the recommendation of the inspector is justified. The Minister may call for advice on the significance of the evidence, but it is for the Minister, and for the Minister alone, to decide whether the weight of evidence is sufficient to justify him in overruling the recommendation of his inspector.
204 There is one other matter, on which the noble Lord, Lord Ampthill, obliquely touched, which I think is of some importance, certainly from the point of view of the outlook of the general public—that is, where the Minister is called upon to make a decision in a matter in which he has a departmental interest. In the normal case—say in a case where a local authority is seeking to acquire land compulsorily and an owner objects—the Minister can safely be relied upon to act as arbiter and to make a decision. But what happens in the case where the Minister himself is seeking to acquire land, or (as in the case to which the noble Lord, Lord Ampthill, referred) where the Minister is seeking to do something, there has been an inquiry and the Minister himself is called upon to decide.
When I was Minister of Town and Country Planning, I was myself in that position. I was responsible for designating an area of land which was to constitute the area of a new town. If there was an objection to that designation, there was a public inquiry. The inspector heard the objections and then reported to me. I was then called upon to decide. Well, it would be perfectly natural and understandable that one should have a bias in favour of a designation which one had oneself made. One would be more than human if one felt, at the end of the day, that a case had been completely made out for rejecting what one had already done. I believe that no such case ever was made, although the results of the inquiries were that in a number of cases particular areas were modified. But it is putting too great a strain on the objectiveness of an individual in an important case of this kind, or even in the kind of case which the noble Lord, Lord Ampthill, quoted, to expect him always to be absolutely objective in his dealings.
Furthermore, even if he is (the noble and learned Lord, Lord Birkett, paid tribute to Mr. Henry Brooke, and I would pay the same tribute to him; I have worked with him for many years on the London County Council and I have the highest opinion of his integrity), it is perfectly understandable that the general public, who have a decision of his on a matter in which he has a personal interest, a decision which they do not like, should feel some kind of doubt 205 as to whether that decision was arrived at independently. I wonder whether it would not be possible (the Franks Committee did consider this) in cases of that kind for a decision to be given by somebody who has no departmental interest in the particular subject matter.
I want to refer quite briefly to two other matters. The first is the increasing complexity of these inquiries. Often they are in the nature of High Court actions, with expert witnesses on both sides, and it is increasingly difficult for an individual to appear on his own behalf, especially when he is confronted, as he may well be, with an array of learned counsel on the other side. Inevitably a person who has something at stake will have to employ a solicitor and counsel, and this can be very expensive because some of these inquiries range over several days. It seems to me unfair that the burden of cost should fall upon the person who appears. In some cases the objection may be a frivolous one; but in others, even when the decision goes against the individual, it is nevertheless quite proper that his objections should be heard and he should have a full opportunity of stating his case; and I feel that he should not be penalised for having done what is perfectly proper.
I would suggest to the noble and learned Viscount the Lord Chancellor that there ought to be some machinery for defraying the costs of people who appear at an inquiry, quite properly, and put before the tribunal facts which ought to be put before them in order to arrive at a decision. It does not mean that in every case it would be right to award costs, but it means that this power should be exercised fairly freely in proper cases. The case quoted by the noble Lord, Lord Ampthill, which was to my mind a perfectly legitimate case in which to make representations, would in my view be one where the party or his trustees should not be penalised.
The last point I want to make is one referred to by the noble and learned Lord, Lord Denning—namely, the question of who, other than the actual parties to the appeal, is entitled to make representations. Under the Town and Country Planning Act, 1959, for the first time interested parties were given the 206 opportunity of being informed of an application and they can make written representations to the local authority. What happens to those representations they never know. They cannot even be certain that they are considered, because in due course the local authority give their decision to the person who has made the application but to nobody else. It is left to those who are accepted as interested parties to find out for themselves what has been the result, if any, of their representations.
Then we come to appeal, and here they are entitled to appear. But, as the noble and learned Lord, Lord Denning, pointed out, their status is a little equivocal. They can appear and make their statements, and I believe they can even call evidence, but they are not officially recognised as interested parties. I am not sure whether they are entitled to receive even the actual text of the decision or whether they have to find that out in some other way. But even if they get the decision, if they have a grievance and feel that the conduct of the inquiry is such as to call for the attention of the court, they have no right to appear before the court to make these representations. I understand that the noble and learned Viscount on the Woolsack is looking into this to widen the scope of those who are interested parties.
Obviously this cannot be extended to everybody, but I should think it would be quite possible to draw a clear line as between those who have a general interest and a public interest in the matter, such as some of the amenity organisations, which could not be entitled to go to the court and claim to be interested parties, and those who are personally concerned, such as Major Buxton. I look forward to hearing the result of the Lord Chancellor's review of this, and whether he has now been able to make up his mind on whether the scope of persons who are personally interested can be widened.
I am afraid that my remarks have gone a little wide of the subject matter before us this afternoon, but a debate of this kind gives us an opportunity of conducting what is called a "grand inquest" on what is becoming something of tremendous importance to the people of this country. I am sure that nobody would grudge our taking a rather wider 207 view of this matter than would be justified by the terms of the Motion which the noble Lord, Lord Lucas of Chilworth, has put before us.
§ 5.57 p.m.
§ THE LORD CHANCELLOR
My Lords, I should like first of all to join with other noble Lords in thanking the noble Lord, Lord Lucas of Chilworth, for putting down this Motion and for the great care he put into the preparation and presentation of his speech. I join with him in saying again how much we regret the death of our old friend Lord Reading. I should like to tell the noble Lord, Lord Lucas of Chilworth, that during the interregnum Sir Hugh Rose, whose manifest capabilities are known to many of your Lordships, was good enough to act as Chairman, and the work was carried on with great care and efficiency during that time. And all his old friends in the House will agree that I was very lucky to be able to secure the noble Viscount, Lord Tenby, as a successor.
There is one preliminary point that I want to mention, and that is to assure the noble Lord, Lord Chorley, that I have no intention of practising any dentistry in pulling out the teeth of the Council. It is true that he may have seen from Who's Who that I am a Fellow of the Royal College of Surgeons, but I assure him that this is purely honorary and on condition that I never use the knife. I am just as anxious as any of your Lordships that the Council should have teeth and should do its work forcibly, as well as accurately and carefully.
I think the first major point which the noble Lord, Lord Lucas of Chilworth, had in mind, was whether the increasing burden of work now falling on the Council might tend. to put it mildly, to affect its efficiency. I have considered that point, but I think everyone this afternoon has agreed that it is essential that the members of the Council should be part-time members, men and women with great experience in other fields of life. Although the noble Lord suggested a larger staff, I think it was implicit in his whole approach that it would be undesirable if the work of the Council were to be done through a large body of officials. The value of the Council lies in the fact that 208 the public have the assurance that the activities of professional administrators and members of tribunals can be scrutinised by a body of persons who have no axe to grind and who bring to their work a wide experience gained in other fields.
The noble Lord, Lord Citrine, was, I think, more anxious than anyone else on that point. May I remind him again that of course it is not the function of the Council to sit as an appellate body over the results of either the tribunals or the Minister or the inspectors. They have to see that the composition—and that is my responsibility—is right. They have to see that I carry on my responsibility aright. They can ask me how the composition is dealt with; they can suggest better methods and, perhaps it might be, a wider field of recruitment; and they can, of course, go and see that this can be done. I think the noble Lord, Lord Citrine, will agree from his vast experience that it can be done by a spot check; they can see how the tribunals of various sorts are being carried on. Therefore I hope that we shall not change the character to make this the head of a large body of officials. I have various ideas in mind. One, of course, as the noble Lord mentioned, is to enlarge the Council and still keep it of the same kind. I hope to discuss that with my noble friend Lord Tenby when we have had an opportunity of assimilating what has been said in this debate.
May I put this thought to the noble Lord, Lord Lucas of Chilworth, and, through him, the general public? There is another side to this matter. I am very anxious that no member of the public should feel barred from going to the Council and making his complaints. But, on the other hand, if you take a body of fourteen men and women who are doing this work part-time in order to serve their country, and if you throw at them an inspector's report, debates here or in another place, and notes of evidence at some inquiry, and say, "We do not like the result", obviously it is a very difficult task for fourteen part-time people to go through that maze of documents. I appeal to everyone who wants to make complaints to try reasonably to formulate what these complaints are, and to make them clear to the Council. I do not think that is an unreasonable request, and I hope that the public will follow it.
209 Now may I deal with a point that was raised by the noble Lord, Lord Lucas of Chilworth, in which he was supported by my noble and learned friend Lord Birkett? That is the question of an appeal on facts from tribunals, and particularly rent tribunals. Again I ask your Lordships to believe that I am not fencing with this problem or putting up a debating case. I ask your Lordships to look at the social background of the work of these tribunals. Their prime duty is to fix reasonable rents for furnished lettings, and their decisions are therefore essentially matters of opinion. They are experienced in the work of their areas and in many cases—in fact I should think in all cases—they have inspected the premises. On that, they form their opinion as to what is a reasonable rent. Fixing rents for furnished premises with a maximum rateable value of £40 a year in London, and £30 outside, is not an exact science. That is work suitable for someone applying common-sense to conditions he knows in a regular way.
My first difficulty—and I ask the noble Lord, Lord Lucas of Chilworth, to consider it with an open mind, as I am sure he will—is why should an appellate body be able to form a better opinion of what is essentially a matter of practical opinion and local knowledge? My difficulty does not stop there. You have to consider the people who are mainly involved. What we want to provide for them is that the tribunals should be cheap, speedy and informed. As soon as you introduce an appeal, the process is protracted and, of course, if legal representation is widely introduced, or professional witnesses, it will become more costly. As I said, the rateable value is not exceeding £40 in London and £30 in the provinces. Nearly all the cases are with regard to the letting of a furnished room or rooms, and on the whole the tenants are poor and inarticulate, and include a large number of immigrants. In these circumstances, as I say, the danger of an appeal is that it makes the process protracted. On the other hand, if you were to put any costs sanction on to it you might frighten these people off from going and getting their rights.
I hope the noble Lord will agree—because he is always so fair-minded—that these are real difficulties as to appeals on 210 fact. Of course, as he frankly said in his speech, there is, under Section 9 of the Act, an appeal on law. Any party may appeal to the High Court, or require the tribunal to state a case for the High Court and, in addition, they have the procedure certiori and similar remedies. That deals with the exceptional cases. It also deals with the case where they found on no evidence at all, because that is a question of law. I feel that that is a point which we ought to consider very carefully. It is so easy in this field to make the best the enemy of the good that I should be grateful if the noble Lord would consider it once again. I certainly shall. I have put my difficulties, but that does not mean that I shall shut my eyes to what the noble Lord has said. I shall consider what has been said by everyone, and by my noble and learned friend.
The noble Lord, Lord Lucas of Chilworth, raised the question (and the noble Lord, Lord Citrine, also dealt with it) about the position of my right honourable friend the Minister of Pensions. I think the noble Lord, Lord Citrine, spoke on the first point, namely, that it is mandatory under the existing regulations that the tribunal must—I repeat, must—order everyone out. I just want to add, however, that that was imposed on the express advice of the National Insurance Advisory Committee, which was appointed to advise the Minister in 1948 when the Act came into force.
The other point is that for some time (the noble Lord, Lord Citrine may have had these days in mind) the public were not admitted to these hearings. But that situation was changed some years ago, so that the public can now come to the hearing; and so, of course, can the members of the Council. But difficulty has arisen over permitting members of the Council to retire with the members of the tribunal when the latter are coming to their conclusion. As I say, this is not permissible under the present regulations; and to make a change would involve amending the regulations. Under the National Insurance Act this would have to be submitted to the same National Insurance Advisory Committee who originally advised against it; and it would also, of course, have to come to the Council on Tribunals.
I think there is here a difficulty which we have to balance. When one retires one has a very frank discussion—I think 211 that well applies to any body of which I have been a member—and it is difficult for members of a tribunal to have as frank a discussion with somebody on the council rather watching and estimating whether or not they are talking common sense; and the Minister tells me that there is some difficulty on that point. Of course I will consider it, but I hope that noble Lords will see that it is not just an arrogant assumption of ministerial power; it is consideration of something on which the Minister has been advised on very high authority in the insurance fields and on which he feels members of his tribunal might be in some difficulty.
§ LORD CITRINE
May I interject on that point? First, the Council has the job of reviewing the work of the tribunal.
§ LORD CITRINE
It has that job—very well. But so far as we can see, it has no facility whatever for doing that job except such facility as is possessed by any member of the public: in other words, of being present at the actual hearing. But during the other part, which is even more vital, when the conclusions are being reached, its members are excluded; and they are excluded, apparently, under a decision made ten years ago, before this tribunal was appointed, before this Council was appointed. The noble Lord, Lord Lucas of Chilworth, and I asked: was it not an arbitrary way to deal with the question merely to say, in the first part of the question, Yes, and in the second part of the question, No? Had an explanation been given such as the noble and learned Viscount the Lord Chancellor has now given I certainly would not have raised the question as indicating discourtesy on anybody's part.
§ THE LORD CHANCELLOR
I think I ought to continue for one moment, and then I think I shall have satisfied, or at any rate explained the matter to, the noble Lord, Lord Citrine. Now members of the Council can of course listen to everything that goes on. The tribunal has to give reasons for its decisions, so the Council members can compare what they heard and the reasons. The only 212 thing that has not been done—and I think this is where the difficulty arises—is to permit the members of the Council to retire with the tribunal and listen to its discussions.
Let me take an example—and I do so only to illustrate the difficulty. As your Lordships know, one of the matters in which I am most interested is the functioning of magistrates: it comes into my life every day. I am always trying, especially with the appointment of new magistrates, to see that they appreciate the responsibilities of the position, that they are the best to do it, and that they get experience of the law. But I think any magistrate would feel I was going a bit far if I sent my Secretary of Commissions to retire with a bench of magistrates considering an actual case to see whether the young entry to the bench talked sense during their private discussions. I will consider the matter and consider what the noble Lord said, but it is not as easy as it at first appeared, and I hope that noble Lords will acquit my right honourable friend of being peremptory, as was said.
I am not going into the question raised on agricultural tribunals, by the noble Lord, Lord Meston. I told him that I would look into the question of discovery and I need not detain your Lordships on that matter.
I now come to the point raised by my noble friend, Lord Ampthill; and may I say, entirely without prejudice to the position, how fully I understand, appreciate and sympathise with his approach to the matter and his desire to preserve the national beauties of the countryside which means so much to him. The procedure which he mentioned, the procedure announced by the Secretary of State for War on March 6, 1959, was one that was invented to deal with the difficulties of the Service Departments. And that, I think, takes it out of the general category in which the noble Lord, Lord Silkin, put it, of the Minister deciding in his own cause; because he will understand that it is very difficult, when a matter of high security, or a new installation of high security by a Service Department, is concerned. For in such a case there is really nobody else except that Department which can give the final word. Even the Ministry of Defence is in a different position.
213 Therefore, in order that matters of high security can, if necessary, be dealt with in secrecy, we invented the procedure by which the Minister can authorise the compulsory acquisition under the Defence Acts of any interest in land; but he has to inform those concerned of his intention and to tell them that he will consider any reasonable objection. If any objector persists, the Minister must offer to the objector an opportunity to appear at an inquiry held by a person appointed by me. I think your Lordships will agree that is a reasonable approach to the difficult question of secrecy. I am sorry that there were these various points. Of course the noble Lord, Lord Ampthill, gave a completely candid account of the matter, and there were really two points after the inquiry which, if my noble friend will allow me to say so, he took very well and did not try to make any false point out of at all. One was that the appointed person found that Ringstead should be spared on amenity grounds, if it were possible to establish the installation at Portland Bill; and of course he also took the view that it was impossible to bring the proposed acquisition within the terms of the Defence Act, 1842.
On the locality point, my right honourable friend was convinced that no suitable site could be found at Portland Bill and therefore that the construction at Ringstead should proceed. On the other point, the Law Officers and I myself disagreed with the view taken by the distinguished Queen's Counsel who held the inquiry that there was no legal power and that it was impossible to bring the proposed acquisition within the terms of the Defence Act. My noble friend was kind enough to say that I wrote to him in the middle of the then current long vacation and I tried to make as clear as I could why I thought there was legal power; and I referred him to the various Statutes. That is the position. I should like to deal with the further question of costs rather separately. As I say, I am sorry that the noble Lord had the difficulties he spoke of, but I have not been able to think of a better procedure for dealing with potentially security matters. I thought of all these things a great deal at the time and discussed them with all the relevant Departments. But if my noble friend, after his rather sad cause of reflection, can think of any improvement, I hope 214 he will come and see me and have a talk about it. I shall be very pleased to consider it.
May I go from this to the question of costs? That is a very difficult matter and I am not going at this late hour to read out the paragraphs, but those of your Lordships who are interested will find costs dealt with in regard to one part of the matter in the Franks Report at paragraphs 323, 324 and 326. Summarising the Franks suggestion, I would say that it was that in compulsory acquisition cases in clearance schemes reasonable costs should generally be awarded to successful objectors directly interested in the land, but should be awarded to unsuccessful objectors only if the initiating authority had acted unreasonably, and costs should be awarded against an unsuccessful objector only if he acted frivolously or vexatiously. Your Lordships will see, even from the point of view of my noble friend, Lord Ampthill, that the Franks Committee test was not whether my noble friend was reasonable in putting forward his objection, but whether the inquiring authority was unreasonable in any course, and that just shows the sort of difficulty that arises in this field of compulsory acquisition.
There are also great difficulties in planning appeals, and my feeling is still, as I said to your Lordships before, that as any alteration in the present practice in regard to award of costs before both tribunals and inquiries presents real difficulties, before any change can be made the matter would have to be very carefully reviewed by the Council on Tribunals. I have had it in mind for some time—I warn my noble friend Lord Tenby—to refer this matter to the Council as soon as they are free to take it up, when they have finished with the matters which we all know they have in hand at the moment. I think that would be the best way, because it really requires working out in some detail.
May I say one or two words as to the general position. I think everyone who has spoken has put accurately the position with regard to departmental inquiries. The Franks Committee dealt with it in paragraphs 262 to 277, and everyone who has spoken agrees that the Franks Committee were right in saying that they had both a judicial and an administrative aspect. It has been said in the discussion 215 that the danger is that what has been done since the Franks Report to emphasise the judicial nature of these inquiries has tended to obscure their function as essentially a part of one process, the object of which is to enable the Minister to be in the best position to reach a conclusion in a particular case. Of course, that conclusion, as your Lordships have pointed out again and again, may be affected by policy considerations.
I agree with what has found favour with your Lordships: that whenever possible there ought to be a statement of policy, so that people understand what are the limits within which they can put their case. But there arises the real difficulty in regard to this subject: when you are dealing with a compound like that, a compound of the judicial and the administrative, how are you going to get the constituents rightly mixed? The noble Lord, Lord Chorley, spoke this afternoon, but when I showed some objection a few months ago to discussing the merits of an inquiry before the inspector had arrived at his conclusion and suggested that that was analogous to the position of a case that is sub judice, the noble Lord, Lord Chorley, told me that I was over-stressing the judicial side of these inquiries, and he was strongly supported by The Times newspaper.
Yet, when I gave my view—some of your Lordships did not agree with it—that you can draw a distinction between the evaluation of evidence and the tendering of new evidence, then everyone went the other way and said I was not considering this difficult problem from a sufficiently legal point of view. I make no complaint. We are dealing with a new subject matter. I am most anxious we should get it right. I hope no noble Lord will ever for a moment think I mind criticism; I welcome it as helping towards getting a better state of things and a better procedure. But the fact that I should have had those two forms of criticisms within one month, shows how difficult is the subject matter. That is all I ask your Lordships to agree: that it is difficult, and on that basis we will try to improve it together.
May I just say one word about inspectors? I am not going over the old history. It was made clear by Mr. Butler, as early as October 31, 1957, 216 that he proposed that in future the Minister would appoint inspectors only after consultation with the Lord Chancellor, and would be free to dismiss them, should such a necessity arise, only with the Lord Chancellor's consent. I want to assure your Lordships that that has not become a matter of mere "rubber stamping" the appointment of inspectors. What happens is that I am represented on the selection board for the appointment of inspectors. That is not an empty formality. The members of my staff who sit on the board are concerned to see that the candidates chosen are likely to have a judicial outlook. The Ministry representatives are concerned mainly with their technical ability. So far as our ability is concerned to judge by being in this field, I am satisfied that the inspectors are not under the thumb of the administrators.
The other point is the draft rules and procedure. There will have to be considered the two important points that have arisen—on the one hand, the question of what is new factual evidence, and on the other hand, the class of people who are entitled to come into the matter by reason of their position. What happened was this. The first thing I had to do was to collect the views of the sections of the Government which might be affected. We got out some draft rules and we had an informal consultation. It was before my noble friend Lord Tenby came, but Sir Hugh Rose was good enough to see the representative of my Department and to tell him that he thought it would help the Council on Tribunals better if I consulted the professional bodies and then brought back the rules amended in the light of that consultation.
That takes a considerable time. I am not blaming anyone for a moment—not even myself. I think that we had to consult them. We have not had all the replies. We shall do some redrafting and then bring them back before the Council on Tribunals. I would only say to the noble Lord, Lord Lucas of Chilworth, that sometimes delay works for our benefit. In this case, it gives us a chance to consider this difficult question of new factual evidence, on which I do not think anyone realised there could be such bitterly held differences of opinion until we had the chance of considering this case, into which I am not 217 going to-day, and the other point that I have just mentioned. Your Lordships have been, as you always are, most kind to me.
§ LORD LUCAS OF CHILWORTH
My Lords, before the noble and learned Viscount leaves this question of the new rules, I quite appreciate what he has said—I think I myself said, "Let us turn the delay into good"—but what I should like him to do is to give the House the assurance for which I have asked: that, when all the consultation is over and Parliament is asked to pass and ratify these new rules of evidence, they will be presented to Parliament in such a form that Parliament can freely criticise and make suggestions, and Parliament will not be presented with them as a statutory instrument which can be prayed against only in toto.
§ THE LORD CHANCELLOR
My Lords, I should like to consider what is the statutory position, because I have not applied my mind to that. But the noble Lord will see that what I am saying is going to be the process is this: they will come from the professional and other bodies to me; they will then go to the Council on Tribunals, and the Council on Tribunals will state their views. So there is no question of this suddenly emerging from Whitehall like Pallas Athena out of the head of Zeus. Publicity must be given to them, and of course the Council on Tribunals, if they think we are making a big mistake, can take up the matter. So I should like to assure the noble Lord that nothing is going to be hidden in regard to the matter. I would rather he did not tie me on the statutory procedure until I have looked into it.
There was one other point on which I think your Lordships are entitled to a pronouncement, if your Lordships' patience will stand it. The noble Lord, Lord, Lucas of Chilworth, said that the Council on Tribunals should really act, or might be brought into the position of acting, as an Ombudsman. I have considered carefully all the arguments in favour of Ombudsman, which are really that there is insufficient machinery for investigating individual complaints which cannot be brought before a court of law; that there is no method by which an aggrieved individual can attack a piece of bad administration where there is no tribunal or inquiry—that is the 218 sort of Crichel Down position; and that Members of Parliament feel they have certain limitations, especially in regard to the action of local authorities, nationalised industries and provincial police forces. I have summarised it shortly.
The difficulty is that if we are going to get into the Ombudsman procedure we must look at the powers that that needs. That would mean that the Council would need to be able to call for departmental records and to call civil servants before them for cross-examination. Tins method is used in relatively small countries with a population of four to six million. If you think of my right honourable friend having to initiate that procedure in the case of a country with 50 million, you realise that it would require a very large staff indeed; I do not see how it could be avoided. Secondly, it would mean a fundamental change in the position of civil servants in relation to their Ministers, and of course in the Ministers' responsibility to Parliament. If your staff are liable to that, then you must have a responsibility to the Ombudsman which, of course, is quite different from the present position of responsibility to Parliament.
It would also effect a change in the status of Members of Parliament. I notice two or three of your Lordships who have even longer experience of the Back Benches in the House of Commons than the fourteen years' experience which I myself have. One of the glories of the position of a Private Member is that he can, on behalf of his constituents, find a way of showing where the shoe pinches and make a complaint about it, and broadly—and as I say, I have seen it from both ends of the gun—I think it is effective. But what would be terrible from the point of view of our country would be if your Lordships were to substitute a new procedure which would take away that duty and responsibility from the private Member of Parliament.
I give your Lordships only one other matter, which will be amusing to those of your Lordships who have been Ministers of the Crown. The Parliamentary Question, although known in Scandinavia, is not much used; and according to my information, in each country something like 100 to 150 Parliamentary Questions are asked in a year. I can see noble Lords thinking 219 of one day in another place when they have had to answer at least 40 Questions. I have had to do so, and I am sure other noble Lords have been in the same position. Therefore, that is something we have been able to develop and which I think must be taken into account, in addition to the differences in the law and our other procedures. Nevertheless, I hope that your Lordships will not think that, because I have put the difficulties, I have closed my mind. I am glad to think that a study of this Scandinavian procedure has been taken by the Organisation of Justice. We hope to get their report in the autumn and I will consider it.
There is one other point of the extension; that is really the chapter 3 mentioned by my noble and learned friend Lord Denning, and also by the noble Lord, Lord Lucas of Chilworth. If I may put it in much less poetic terms, it is an extension to inquiries in respect of which there is not a duty under a Statute for a Minister. That again is a point which deserves great consideration, but I would put to noble Lords this fundamental fact. We must not so slow the government of this country that it becomes ineffective, just as I have said to your Lordships over and over again that if you insist on the most perfect and legalistic procedure for these inquiries, and increase the time from six to eight months to sixteen to eighteen months, on the whole you will have committed an injustice. Similarly here, if your Lordships are going to make difficulties for a Minister who wants to be fully informed before he takes an important decision, or reports his view of an important decision, by saying that he cannot have an informal inquiry in order to consider the point, then I think you are in danger of causing great difficulty in his doing his work.
Where do we draw the line? Clearly, if he asks AB to go and look at something on behalf of his Department, that would not be an inquiry, and I do not think anyone who has spoken to-day would want to prevent that. If the Minister says, "Collect people from three of my sub-departments to go and consider this together, or ask someone from another Department to come in and help" those would be informal investigations which I think should be left to the Minister.
220 Your Lordships will agree that I had many points put to me, and that if I was to deal with them I had to occupy a considerable amount of your Lordships' time; but I apologise for doing so. I simply ask you, in conclusion, first of all to bear in mind the figures we have heard to-day—that there are 2,000 tribunals dealing with 122,000 cases and 6,000 inquiries. I do not want to be complacent, and I do not want any Government Department to be complacent. But I believe that it would be unfair to those who give their time as members of the tribunals, and broadly to the inspectorate of whom the noble Lord, Lord Silkin, spoke so highly, if we were to allow the relatively few cases that go wrong to blind us to the good, quiet, solid work that is done all over the country every day.
The only other points I want to make are these. I am quite sure that the experience the Council have gained in the past two and a half years is invaluable, and that their reports, in turn, will be invaluable to us who have been concerned with the business of government. The Council must attract and be staffed by men and women of the same high quality and the great experience that its members hitherto have had. It is with real sincerity that I ask my noble friend Lord Tenby to convey to his colleagues, and to accept himself, my deep gratitude and the gratitude of Her Majesty's Government and of every part of the House.
§ 6.46 p.m.
§ LORD LUCAS OF CHILWORTH
My Lords, may I express my gratitude to the noble and learned Viscount on the Woolsack for his extremely courteous reply to a highly critical speech of mine. I expected a courteous reply, and I had it; and I am grateful to him. I am grateful also to noble and learned Lords and noble Lords who have made valuable contributions to this debate. I am also glad that the Chairman of the Council of Tribunals has seen fit to sit right through this debate, and I feel that the collective wisdom of the future will take us another step along this road on which, as the noble and learned Viscount says quite correctly, we are all learners; but let us be willing to learn. With those words, I beg your Lordships' leave to withdraw my Motion.
§ Motion for Papers, by leave, withdrawn.