§ 3.30 p.m.
§ Order of the Day for the Second Reading read.
§ THE LORD CHANCELLOR
My Lords, I beg to move that this Bill be now read a second time. Your Lordships will remember that it is a good many years now since a different Franks Committee reported on the growing number of administrative tribunals and inquiries held by Ministers, and considered whether citizens had all the protection they ought to have before this growing number of tribunals and inquiries. Your Lordships, in the Tribunals and Inquiries Act 1958, constituted the Council on Tribunals to act, in effect, as a watchdog for the public in relation to tribunals and 795 inquiries. They have, of course, functions to perform relating to the membership of tribunals: Ministers are under obligation to consult the Council when they make rules, and the Council themselves are the proper repository of any complaint by any member of the public who thinks he has been wrongly treated at such tribunals.
In addition, they go round the country —as their Scottish Committee do in Scotland—hearing the cases which are heard by different kinds of tribunals and, with the consent of the chairman, retire with the tribunal so that they can see and hear how they arrive at their conclusion. I am sure that your Lordships will agree that we all ought to be very grateful to the many men and women under the chairmanship of the noble Viscount, Lord Tenby, who devote a very considerable amount of time to this public work.
This is a Bill to make two or three relatively small alterations in this field. The first arises in this way. The Council have, in fact, rather more trouble about inquiries than they have about tribunals, and by the terms of the legislation they are restricted in relation to inquiries to what the Act calls "statutory inquiries" which were so defined as to apply only to inquiries which Ministers are bound to hold. They do not apply to what I might for convenience call discretionary statutory inquiries; that is to say, inquiries which a Minister has a right to hold but which he is not bound to hold. In one or two of their Annual Reports the Tribunal have complained—your Lordships may think, rightly—that this is quite illogical. They say, "If a Minister can and does hold an inquiry, and it is the same sort of inquiry as many of the statutory inquiries which he is bound to hold, we ought to be able to survey it in the same way as we can the inquiries which a Minister is bound to hold."
I rather fancy that the reason for this tight definition in the 1958 Act was that when one goes into this point one finds that many of the discretionary statutory inquiries are of a character similar to those which a Minister is bound to hold, and one would say that as a matter of common sense they ought to come under the surveillance of the Council just as 796 much as the others do. There are some inquiries which a Minister may hold which are held purely for his own information, which do not affect the rights of the citizen and as to which it would not be sensible to give the Council the same powers as they have in relation to statutory inquiries which a Minister is bound to hold. Therefore, one might think the legislation which would be necessary to enact that would be a form of words which would define which of the discretionary statutory inquiries were to come under the Act and which were not. But it has, in fact, been found quite impossible to define the difference in that way. It is perhaps not easy to define an elephant although we all know one when we see one.
That is why Clause 1 provides:In section 1 and section 7A of the Tribunals and Inquiries Act 1958, the references to a statutory inquiry shall include references to any such inquiry or hearing, or any inquiry or hearing of any such class, as may be designated by order under this section.And it is proposed that as to England and Wales the designation should be made by the Lord Chancellor, and as to Scotland by the Secretary of State. I do not think it matters which Ministry one takes: in nearly every Ministry it will be found that there are many discretionary statutory inquiries which might very properly be made subject to the Council on Tribunals, and some which should not be. For example, there are some of the first class in the case of the Ministry of Labour, but the Franks Committee themselves excluded altogether inquiries in relation to relations between employers and employees. The Ministry of Labour has, of course, a conciliating function here, and it has always been considered that the rules and regulations of a class quite appropriate to other forms of inquiry would not be appropriate to that kind of inquiry.
If one looks at the Home Office, one finds there are many discretionary statutory inquiries which might well be made subject to the Act. But then you have, for example, the power of the Secretary of State for Home Affairs to hold an inquiry if there is a fire or explosion in a garage. He does this not in order to blame anybody; it is entirely for his own personal information, because he is responsible for making the safety regulations for those who store petroleum products and he just wants to see how the accident 797 happened and whether he ought to make any alteration in his regulations. Similarly with the Ministry of Transport. While there are many inquiries of the first class there is also, for example, the inquiry which is really a dispute between two highway authorities. The Minister's function is largely an arbitral function. Whether he takes the chairmen to lunch to discuss the dispute with them, or whatever course he takes, I do not suppose matters. He wants to try to get agreement between them and obviously the deliberations should be as informal as possible. As the number of inquiries may increase or decrease, this is another reason for keeping the position flexible and therefore for giving, I suggest, a power to the Lord Chancellor and the Secretary of State from time to time to designate which kind of inquiry is which. It is roughly estimated—and it surprised me—that there appeared to be about 200 different kinds of discretionary inquiries in all the Ministries, and it looks as though about 150 are appropriate to include under the Act, and the other 50 are not.
Clause 2 deals with an entirely different point, which arises in this way. Under the existing legislation such rules and so forth as are made are laid down by the Lord Chancellor as to England and Wales and by the President of the Court of Session as to Scotland. It has been thought, and I hope your Lordships will agree, that this is the sort of field where there should be ministerial responsibility, so that any Member of either House can say to the Lord Chancellor, "Why on earth did you make a silly rule like that?". No such question can be addressed to the President of the Court of Session, and, accordingly, with the consent of the President of the Court of Session, it has been thought better that the Secretary of State should perform that function in relation to Scotland. The second subsection of Clause 2 has the effect of treating all the rules which now exist as if they had been made by the Secretary of State, so that any questions on past rules, as well as on future ones, can be addressed to him.
The only other matter which I think I need mention is the not very self-explanatory or illuminating subsection (3) of Clause 3 which says:This Act and Section 7A of the Tribunals and Inquiries Act 1958 as amended by this 798 Act, shall extend to Northern Ireland; but nothing in Section 1 of this Act, or in the said Section 7A as so extended, shall apply to any inquiry or hearing held or to be held in Northern Ireland which relates only to matters with respect to which the Parliament of Northern Ireland has power to make laws.The second half of the subsection is, of course, common form, because we do not legislate here for Northern Ireland except in relation to reserved matters.
What the first part relates to is this. Originally in the 1958 Act there was no power to make rules as to inquiries, only as to tribunals. In the following year, while considering the Town and Country Planning Act 1959, which provided for certain inquiries, Parliament took the view that there ought to be a power to make rules as to those inquiries. Parliament then said: "While we are doing that, ought not there to be a power to make rules as to all inquiries?". So it put a new section, Section 7A, into the Act of 1958. That is why, since 1959, the Tribunals and Inquiries Act 1958 contains this new section, Section 7A, which empowers rules to be made in relation to inquiries. But the Town and Country Planning Act 1959, which did that did not itself extend to Northern Ireland (perhaps it was one of those things which were just overlooked), and advantage has therefore been taken of this opportunity to provide for Northern Ireland the benefit of power to make rules as to inquiries, as it has already in relation to tribunals.
My Lords, I suggest that this is a short but helpful piece of law reform, and I trust that your Lordships will give the Bill a Second Reading accordingly. I beg to move.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
§ 3.43 p.m.
VISCOUNT COLVILLE OF CULROSS
My Lords, I also hope that the House will this afternoon give this Bill a Second Reading. As the noble and learned Lord has said, it is not perhaps very often that we in this House have an opportunity to pay tribute to the work of the Council on Tribunals, with my noble friend Lord Tenby and his colleagues; and the Scottish Committee, too. But if your Lordships have read the Annual Report of the Council for any particular year (the one I happen to have before me 799 is for 1964), the enormous amount of work which they do will become apparent at once. The work is done largely behind the scenes, and to the considerable benefit, I think, of the administration of this country, as well as of the rights of the individual who may in some cases consider that he has a grievance under the quasi-administrative tribunals which, but for the Council, he would not be able to remedy.
I am glad that the noble and learned Lord has told your Lordships that about 150 new types of discretionary inquiry are likely to be brought within the purview of the Council by means of the regulations that he makes under this Bill. But I hope that when he is considering inquiries which, as he described them, are largely for the information of the Minister he will not draw his net too narrowly, because there are inquiries of this sort which may be, on the face of them, largely for the information of the Minister but which may also affect the rights of individuals, and over which I think the Council on Tribunals may properly have surveillance. A further point on this is that there seem all the time to be springing up new forms of inquiry which, though they may not have any specific statutory background, may nevertheless be of great importance. There is one going on at the moment into the future of the Broad Sanctuary site in Parliament Square. The inquiry's terms of reference, as I understand them, are purely for the information of the Minister of Housing and Local Government, but matters of great public importance and certain private rights may well be affected. The noble Lord, Lord Mitchison, doubtless remembers this particular matter very well from the debates we have had in the last six months on that subject.
As the noble and learned Lord has said, there are these strange distinctions in many Acts of Parliament between the statutory inquiry as defined in the 1958 Act and the discretionary sort which hitherto has not been capable of being dealt with by the Council on Tribunals. And, of course, the distinction between these two types is in many cases ludicrous. For instance, the power to hold an inquiry into the making of a tree preservation or building preservation order is a discretionary power, whereas the power 800 to hold an inquiry into the granting of consent to pull down a building or cut down a tree is a statutory one; so at the moment the Council on Tribunals can deal with the latter but not with the former. There are throughout recent legislation many distinctions of this sort with which I will not weary your Lordships. Clause 1, therefore, has, I think, a particular significance and I welcome it, especially after the slight contretemps which happened at the end of last year, when the right honourable gentleman the Minister of Housing and Local Government seemed to have got "agin" the Council on Tribunals to some degree. I think it is timely that the Government have brought in this Bill at this stage, to renew the pledge of confidence they place in this important Tribunal.
There is another point in the Bill which was perhaps not very fully dealt with by the noble and learned Lord. That is the separate jurisdiction under Section 7A of the 1958 Act, the Section which was put in a little later on. Under this section the noble and learned Lord and the Secretary of State for Scotland have power to make rules for certain inquiries for which they think such rules are suitable. In effect many tribunals are governed by rules made under specific regulations produced under the Acts which set up the tribunals in the first place, but there are a number of inquiries which are held by tribunals for which there are no set rules at the moment. Indeed, as I understand it, only two set of rules have been made specifically under Section 7A by the noble and learned Lord and his predecessors: that is to say, the one dealing with compulsory purchase by local authorities and the other dealing with the procedure at ordinary planning inquiries.
I feel that there may be scope for a widening of rules of this sort. I do not know to what degree it is suitable to make suggestions this afternoon, but there have emerged over the course of time, for example, certain quite clear courses of conduct for the purpose of inquiries under the New Towns Act into the designation or extension of areas of New Towns. There was a great deal of difficulty about the procedure in the first place, but I think it has now settled down, and it might be suitable for rule-making. There is also likely to be a considerable increase in the number of inquiries which are to be held within 801 a fairly short time under the Water Resources Act, not only regarding licences for abstraction but for various other matters as well. It may be that this is a matter into which the noble and learned Lord and his partner will wish to look. At any rate, I am sure that there is wide use for this particular rule, and I hope that the regulations will come forth under this particular Section as extended in the Bill.
The noble and learned Lord dealt with the question of accessibility to the Council by and on behalf of members of the public. As I understand it, the Council either can start looking at a matter on its own motion, or can have referred to it a certain matter by the noble and learned Lord or the Secretary of State for Scotland. I am not sure whether it is not timely this afternoon to ask the noble and learned Lord to reinforce the impression I have: that is, that it is not necessary for members of the public to write to the noble and learned Lord; they may approach the Council on Tribunals direct, even though it may be that the Council, in exercising its jurisdiction to look at these matters of its own motion, may not think it suitable to do so. The Act is perhaps a little unclear about this, and the impression might be gained that it could be approached only by means of the noble and learned Lord—although I am sure that he is no very terrible barrier.
My Lords, I am glad that the noble and learned Lord has taken this opportunity of explaining why the Scottish rules are now to be dealt with by the Secretary of State instead of the Lord President of the Court of Session. I confess that this puzzled me a little at first, because the ordinary rule-making procedure seems usually to be in charge of the Lord President of the Court of Session; and I recall that this applies to the Solicitors (Scotland) Act. I hope that your Lordships will accept the reasons given for this change, which seem to me to be entirely admirable.
I come now to the only matter of criticism that I have about the Bill, and I think it is one of substance. In the 1964 Annual Report of the Council there is a paragraph (paragraph 21) on the matter to which the noble and learned Lord referred—namely, the question of 802 members of the Tribunal and its Scottish Committee going to see how the tribunals of which they are in charge are working. There are at least four categories of tribunals which are set out in this paragraph (the National Health Service tribunals, although I believe that is not now much in evidence; the National Insurance tribunals, and this is a most important body; the Betting Levy Appeal Tribunal, and I believe another one—it may well be the case of a surcharge being made by the district auditor), where members are not permitted, either by a specific rule in the rules governing the inquiries or by some interpretation of the law governing the inquiries, to attend either the meeting at all, or at least to go behind the scenes with the tribunal itself so that the members of the Council on Tribunals may see how the decision is arrived at.
They set out the problem, and then at the end of this paragraph they say:This is a thoroughly unsatisfactory state of affairs, and we consider that the position of members who visit tribunals on behalf of the Council and the Scottish Committee should be put beyond doubt by legislation which should apply to all the tribunals under the supervision of the Council or Scottish Committee.I do not know whether there may be the exceptional case where it may still be considered suitable by the Government that one of these tribunals should sit in private. Nevertheless, the point made by the Council in their Report seems to me to be a valid one. I do not know when we are going to get another Bill on this matter, and I suggest to the noble and learned Lord that we might, on the Committee stage, look at this matter more thoroughly, and possibly insert a provision in the Bill—if indeed it be necessary; and I believe it is—to put right this matter of disquiet which has been drawn to the attention of Parliament in this way. Subject to that one minor criticism, which I hope we may deal with, I welcome the Bill, and I hope that your Lordships will give it your approval this afternoon.
§ 3.54 p.m.
§ LORD SILKIN
My Lords, I should like to join the noble Viscount, Lord Colville of Culross, in offering my thanks to the Government and to the noble and learned Lord the Lord Chancellor for 803 introducing this Bill. I regard the Council on Tribunals and Inquiries as a valuable safeguard in the conduct of these public inquiries. Even if this Council did nothing else but exist, they would still be a valuable safeguard: but we know from the reports which they publish that they are doing far more than that; and from the number of cases to which they have drawn attention we know that they have served a most valuable purpose. I should like to join the noble Viscount in extending our thanks to the Council, and particularly to the noble Viscount, Lord Tenby, who presides over it, and who, I know, puts in a tremendous amount of work personally on these matters.
I do not think I want to add anything to what the noble Viscount, Lord Colville of Culross, has said about the Bill. It may mean a great deal, or it may mean very little. It just depends upon how many of the inquiries to which the noble and learned Lord on the Woolsack has referred will be designated for the purposes of the Bill; and that we do not know. I should, however, like to ask the noble and learned Lord his views on one type of case which is fairly common. I think it comes within what he described to us as the anomaly, and it is in connection with town planning. The local planning authorities are the authorities who are able to decide on planning applications: and this they do. Where there is considerable public opposition to a particular planning application and the local planning authority are proposing to grant the application, then the objectors have no rights whatever. However valid or serious their objections may be, that is an end of the matter unless the Minister can be persuaded to call in the application. In such a case, if he does call it in, the Minister is under no obligation to hold an inquiry. If he does hold an inquiry, it brings such an inquiry within the scope of the powers and functions of the Council on Tribunals.
I imagine that it would be going beyond the intention of this Bill to compel the Minister to hold an inquiry in such a case. I should be grateful if the noble and learned Lord on the Woolsack could say whether such a case, if the Minister decides to hold an inquiry, would come within the scope of this Bill. The 804 inquiry would be in exactly the same form as if it were an appeal against the decision of the local planning authority. It is really in form taking it out of their hands and leaving the decision to the Minister. But, as I have said, the Minister is under no obligation in such a case to hold a public inquiry. My question is: if he does, would such an inquiry come within the scope of this Bill?
§ 3.58 p.m.
§ VISCOUNT DILHORNE
My Lords, I am not in the least surprised that the noble Lord found it impossible to distinguish between the type of discretionary inquiry which should come within the purview of the Council on Tribunals and the type which should not. I think the purposes of this Bill are desirable. I should like to join in the tribute that has been paid to my noble friend Lord Tenby and his colleagues for the excellent work they have done, and are doing.
I feel a little anxiety in one respect. They do this work, and, of course, it is their duty to report to the noble and learned Lord on the Woolsack. I am quite certain that he pays great weight to what they have to say, as, indeed, his predecessors did. But I am a little troubled about the situation that can arise if some of the noble and learned Lord's colleagues do not view the activities of the Council on Tribunals with quite the same favour as he does. It is not much use, I think, extending the powers of supervision of the Council on Tribunals unless we can receive some assurance that regard will be had to the recommendations they make to the Lord Chancellor—recommendations which affect the activities, or it may be inactivities, of some of the noble and learned Lord's colleagues. I hope that the noble and learned Lord may be able to say a word or two about this when he comes to reply, because some of us feel a little anxiety about whether or not the recommendations of the Council on Tribunals receive sufficient attention from other members of the Government.
My noble friend Lord Colville of Culross referred to the fact that members of the Council on Tribunals were not able to attend the sittings of certain kinds of tribunal; and he gave one instance—that of the National Insurance tribunal. 805 I think it is desirable that we should discuss this issue carefully in Committee. I believe I am right in saying that the noble and learned Lord the Lord Chancellor cannot himself authorìse members of the Council to attend sittings of such tribunals, and in particular to be present when members of the tribunals are considering how they should decide a particular case. That, I gather, is what the Council on Tribunals wish to do. I do not think it is a very easy question. I remember the criticism there used to be about the clerk of the magistrates retiring with the magistrates when they were considering their decision. But the proposal here is that any member of the Council on Tribunals should be entitled to be present when members of that particular tribunal are considering how they shall decide a particular case.
It is obviously right that the Council on Tribunals should have full power to execute the task that Parliament has imposed upon them. At the same time, I think it will be useful, not to-day, but on the Committee stage, to discuss whether there should be power for their members to be present, when no other person is entitled to be present, when the members of the tribunal are coming to a decision on the evidence that they have heard. If it is right that they should be present, then it may well be—I do not know—that some Amendment will be necessary to some Acts of Parliament which are already on the Statute Book. I think that this is a good Bill, and I certainly should not wish to delay its passage. But I hope that before it leaves this House we can have an opportunity of fully discussing the matters to which my noble friend Lord Colville of Culross and I have referred.
§ 4.3 p.m.
§ VISCOUNT STUART OF FINDHORN
My Lords, I will not detain your Lordships for more than one minute. I am certainly not trying to oppose the Bill, but I thought that the noble and learned Lord the Lord Chancellor might be able to set my mind at rest—indeed, I am sure he can. My reason for intervening is merely that the Title of this Bill interested me, for the good reason that, as the Lord Chancellor will know, there is a Royal Commission sitting at the moment on Trials by Tribunal under the 1921 Act—I refer to such cases as the Budget leak and the Vassall cases. I 806 have read this Bill, and it makes no reference to the 1921 Act. I should like to be assured that it in no way affects the operation of the 1921 Act.
§ 4.4 p.m.
§ THE LORD CHANCELLOR
My Lords, I am extremely grateful to your Lordships for the kindly reception which you have given to this Bill. I am particularly appreciative of the views which have been expressed as to the quantity and value of the work done by the Council on Tribunals. I do not think many people realise how extensive its work is, or the degree to which it serves the public weal.
The noble Lord, Lord Silkin, asked me whether I would include the particular form of inquiry in relation to a planning application. I am sure the noble Lord will understand if I say that I am reluctant to decide at a moment's notice which particular kind of inquiry should come under this Act. But I shall give very careful consideration to what he has said. The Bill does not in any way affect the 1921 Act.
The noble and learned Viscount, Lord Dilhorne, referred to the attitude of Ministers towards the Council on Tribunals. I do not think that this is at all a Party matter. If one is to be realistic, one cannot, I think, suppose that Ministers generally are wildly enthusiastic about the Council on Tribunals. In the event of the Council's coming in any sense into conflict with a Minister, it will, of course, be for Parliament to see that right is done.
The noble Viscount, Lord Colville of Culross, hoped that I should not draw the net too narrowly. If it is proper for me to say so, I am a fan of the Council on Tribunals, and played a small part in relation to the Act which constituted it. I hope that I shall not draw the net too narrowly, and I will bear carefully in mind what he said on that point. It is quite right, as the noble Viscount said—and I feel that it should be more widely known—that it is quite unnecessary for anybody who has a complaint to make about a tribunal or an inquiry to write to me. Such people can, and I think do, write to the Council on Tribunals, which I am sure will explore fully their case, and see whether anything has been done that ought not to have been done.
807 The final point, to which both the noble Viscount, Lord Colville of Culross, and the noble and learned Viscount, Lord Dilhorne, referred, is this somewhat more difficult question of retiring with the tribunal. There is no doubt at all that anybody who wants to see whether a tribunal is working properly is very much assisted if he can retire with the tribunal, without, of course, taking any part in it, and merely to see what goes on. I know that the Council on Tribunals feels this very strongly, and feels that there should be a legal right to retire with any tribunal. In point of fact, with what used to be, I think, three exceptions, no practical difficulty arises, because the Council asks the chairman of the tribunal concerned whether he has any objection, and in nearly every case the chairman says that he has no objection.
I have not had an opportunity of considering this matter in detail, and I am speaking from memory, but I think I am right in saying that the three difficulties which have arisen are, first, with National Health Service tribunals. But that, I think, after being taken up by the Lord Chancellor, was dealt with last year in the National Health Service (Service Committees and Tribunal) Amendment Regulations, so there is no difficulty now I think in respect of those tribunals. The question of National Insurance tribunals is, I think, in process of being cleared with the Minister of Pensions and National Insurance, and I do not think any difficulty need be anticipated there.
The third source of difficulty is the betting levy appeal tribunals. The difficulty here, as was pointed out by the Council on Tribunals in its Report, is that in enacting the Betting Levy Act Parliament thought it fit to provide that it should be an offence to disclose to any person other than the parties information concerning the appellant without his consent in writing. Therefore, not unnaturally, I think, chairmen of those tribunals take the view that they have been prohibited by Parliament from disclosing the information in question without the consent in writing of the appellant. If, which of course is not the case, income tax matters were dealt with by tribunals which are subject to the Act, there would, I imagine, be the strongest 808 possible objection from most people to having to disclose their incomes to anybody except the Inland Revenue.
It is, of course, possible, as the noble Viscount, Lord Colville of Culross, intimated, to consider a point of this kind on the Committee stage of the Bill. But in substance I think that in practically every case a member of the Council on Tribunals is allowed by the chairman to retire with the tribunal. Almost the only case which now remains is that of the betting levy appeal tribunal, where there is a difficulty because Parliament has provided that the information must not be given to anybody outside except the appellant, and then only with his consent. But no doubt we can, if necessary, consider this point further at the Committee stage. I am very grateful to all noble Lords who have taken part in this debate.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.