§ 2.45 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF LISTOWEL in the Chair.]
§ Clauses 1 to 3 agreed to.
§ Clause 4:
§ Departments and authorities subject to investigation
§ 4.—(1)Subject to the provisions of this section and to the notes contained in Schedule 2 to this Act, this Act applies to the government departments and other authorities listed in that Schedule.
§ (2) Her Majesty may by Order in Council amend the said Schedule 2 by the alteration of any entry or note, the removal of any entry or note or the insertion of any additional entry or note: but nothing in this subsection authorises the inclusion in that Schedule of any body or authority not being a department or other body or authority whose functions are exercised on behalf of the Crown.608
§ THE MINISTER WITHOUT PORTFOLIO (LORD SHACKLETON)
If I may intervene, it may be convenient to the noble Lord, Lord Somers, and to the Committee, if on the first Amendment, which is primarily concerned with the compulsory acquisition of land and such matters (though, in effect, it raises also the wider question of local authorities), we do not debate the local authorities in too much detail but confine ourselves to the main purpose of the Amendment. We could then have a wider debate on local authorities on the second Amendment, in the name of the noble Lord, Lord Somers, which I understand it is the intention of the noble Lord, Lord Wade, to move. If that course is convenient, I think it will help us to have a more orderly debate.
§ LORD SOMERS
I am grateful to the noble Lord, Lord Shackleton. During lunchtime we debated who should explain how this was going to work. I was pretty certain that the noble Lord would explain much more clearly than I; and how right I was! I beg to move the Amendment standing in my name; namely, after subsection (1) to insert, as a new subsection:() This Act also applies to any authority taking any action under the Town and Country Planning Acts 1962 to 1965 or the Town and Country Planning (Scotland) Acts, to any authority taking any action for the compulsory acquisition of land, and to any authority developing or disposing of land compulsorily acquired.As your Lordships will see, this Amendment deals mainly with matters of local planning. I cannot believe that actions on behalf of the Crown are the chief source of injustice. I do not wish in any way to decry the actions of local authorities as a whole, but there is no doubt that among them one comes across a pretty wide variety. Some are large bodies of experienced people who understand their job and do it very capably. Other authorities, in small country towns, for instance, may be composed of men who have had no executive experience at all, and the result may be that a great many people suffer very great injustices. I have seen too many cases of great injustice done to people in no position to defend themselves.
A typical case would be that of an elderly person who has a cottage which a local authority wishes to demolish in order to build a road. That person has 609 not the slightest idea of how to ask for a defence on the matter, and does not know where to go for advice. Such a person may be offered the minimum price for the cottage by way of compensation and will have no knowledge of whom to consult with a view to getting the price increased. Usually, I think, the first thought that occurs to such a person is to go to the local Member of Parliament. But, of course, the Member of Parliament may be in favour of a road being built; so who is to know whether or not the Member of Parliament is for his constituent? As a result of this situation, there are many cases where people who do not know how to defend themselves are very badly dealt with. This Amendment is designed to put that situation right, and to see that such injustice, as well as those other injustices which are matters arising from Crown action, can be dealt with by the Parliamentary Commissioner. I beg to move.
Page 3, line 5, at end insert the said subsection.—(Lord Somers.)
§ LORD SHACKLETON
I am grateful to the noble Lord for his co-operation on how to handle this question. I think I should be able to relieve some of his anxieties. Although I do not accept everything he said, I accept that this is a matter of great importance to the individual citizen and that it is an aspect of the power of the State and the local authorities that from time to time does seem oppressive. On the other hand, we have to bear in mind that there is frequently criticism of delays in taking the necessary action, and that already there is a fairly lengthy and cumbersome procedure, so that clearly we do not want that action to be further delayed.
The fundamental objection to this Amendment arises on the wider question that it would bring in not only local authorities but also statutory undertakers. So far as compulsory acquisition of land is concerned, specific provision has been made in paragraph 9 of Schedule 3 to retain within the Commissioner's scope any action by a Government Department relating to the compulsory acquisition of land or the threat of such acquisition. This would meet the case of a transfer of land, with which 610 your Lordships are familiar and which is exemplified by the Crichel Down case.
The noble Lord's concern is not in relation solely to Government Departments but also to others who have power to acquire land compulsorily and power to dispose of land. Virtually all compulsory acquisitions to which objection is taken require ministerial approval. Therefore every opposed case of compulsory acquisition must be considered on its merits by the Central Government, and any maladministration will enter into that consideration. Although this is happening at a later stage than the noble Lord has in mind, none the less it is bound to have proper consideration, because the Minister himself has to decide what will come within the Commissioner's scope. This applies not only to local authorities but also to statutory undertakers and any other public authority who have power to acquire land. If objection is taken, every case can go to a public inquiry, where the Minister considers the recommendations of the inspector.
When it is decided to develop land, this is considered at the time when the Minister has to approve of the compulsory acquisition, and if later the local authority want to change the development, even if many years after, ministerial approval is again required. So, if the right procedure is followed, it would be open to the Parliamentary Commissioner to investigate such cases. I should say a word of warning on this point. If every case to which objection was taken automatically went to the Parliamentary Commissioner, he would be overloaded, and there is already a powerful procedure for considering these cases. I hope that what I have said will go a long way to satisfying the noble Lord.
§ LORD WADE
I entirely agree with the suggestion of the noble Lord, Lord Shackleton, as to the procedure for dealing with the first two Amendments, with which the noble Lord, Lord Somers, also agrees. I am glad that he has raised this point. It deals with a limited but important aspect of the wider problem of complaints involving local authorities and other bodies which, as the Bill is at present worded, are outside its scope.
At this stage I wish to raise only two points. I notice that there is an Amendment in the name of the noble and learned 611 Lord the Lord Chancellor to bring in the Land Commission. But there may be a situation which could theoretically create an anomaly. If two or three local authorities agreed to ask the Land Commission to deal with the acquisition of land on their behalf, then if there were a grievance due to some maladministration it could be investigated by the Parliamentary Commissioner. But if the local authorities decide to act together without bringing in the Land Commission, as they could quite properly do, any maladministration would be outside the scope of inquiry by the Commissioner.
It is true that there is an appeal to the Minister if someone is aggrieved, but I am not sure whether that would be caught by another clause in the Bill—namely, whether an appeal to a Minister is an appeal on a matter of discretion which cannot be investigated by the Commissioner. But we shall come to that later. It seems to me that there may be some anomaly in drawing the line. The Land Commission case can be investigated, but a case of the public authorities carrying on the same kind of activity cannot be investigated.
§ LORD SHACKLETON
I should not like the Committee to be alarmed by the noble Lord, Lord Wade. The Minister has to give his approval to action by the local authorities. This brings him into the picture and at that point, if he is going to approve it, clearly he is going to be satisfied that action can properly be taken and would not lead to injustice or maladministration—otherwise he would be a party to the maladministration. I submit to the noble Lord, Lord Wade, that we shall be exploring this further when we come to the delicate question of the meaning of maladministration. But I am advised that the important points raised by the noble Lord, Lord Somers, are fully met.
§ LORD SOMERS
I am most grateful to the noble Lord. I understand completely what he said, and in view of that I will not press my Amendment. But before I withdraw it I wonder whether the noble Lord could give me some assurance that this matter will be made more widely known to the public. Within this Chamber what he has said is perfectly well understood and recognised, but the average citizen of the type I am 612 describing is extraordinarily ignorant of Parliamentary procedure. Will they know that these matters can be rectified by the Commissioner?
§ LORD SHACKLETON
I think it is likely that the general public, and indeed, I would say, some Members of your Lordships' House, have not yet understood the precise application of this Bill. It is only after having worked many hours on it that I have come to think that I do so—and I hope that I do. The protection on all this is that a constituent goes to his Member of Parliament. That is one of the great arguments in favour of this channel. It will be for the Member of Parliament to advise him. If somebody feels aggrieved he will go to his Member of Parliament: and, indeed, people frequently go to their Members of Parliament on matters on which, by no stretch of imagination, they can take action. Practically the first case I had as a Member of Parliament was to try to get somebody's trousers back from the cleaners. I have even had people come and ask me to facilitate their matrimonial affairs, and on one occasion an illicit relationship, on which I preserved a discreet independence. But on this matter it will be for the Member of Parliament to advise the constituent. I do not think we can expect that an institution as important, and in its way as revolutionary, as this is automatically to be understood; but it will gradually become part of the knowledge of the community, and I hope that this understanding will ensure that the public will not waste the time of the Ombudsman in cases where it would be in vain to seek his help.
§ LORD SOMERS
Ido not know whether it is worth while inserting into the Bill something to say that he shall not be responsible for matters concerning people's wardrobes; I hardly think so. This being the case, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 3.3 p.m.
§ LORD WADE
moved, in subsection (2), to leave out from "additional entry or note" to the end of the subsection. The noble Lord said: I beg to move the Amendment standing in the name of noble Lord, Lord Somers, a number of my noble friends, and myself. The noble Lord, Lord Somers, generously 613 suggested that I should move the Amendment. It so happens that he and I tabled the same words independently, perhaps not necessarily for the same reasons, and in the Marshalled List of Amendments this Amendment appeared under our joint names.
Perhaps I may say one or two things by way of preface. My noble friend Lord Reay, who was to have shared with me the burden of moving a number of Amendments, is unfortunately unwell, and therefore a great deal will fall on me, so far as a number of these Amendments are concerned. Your Lordships may consider that the Marshalled List is plastered with Liberal Amendments, but I can assure you that they are intended to be constructive. There has been a great deal of adverse criticism about the Bill in recent weeks and certainly a great deal of misunderstanding. So far as my noble friends and I are concerned, we are anxious that, when the Bill finally reaches the Statute Book, Parliament should leave as much as possible to the good sense of the Parliamentary Commissioner, and that he should be restricted as little as possible. Most of our Amendments are designed to achieve that object.
This Amendment covers rather a wide field, that of local authority complaints. The precise purpose of the Amendment is to delete the second half of subsection (2) of Clause 4, which limits the subject of investigations to complaints againsta department or other body or authority whose functions are exercised on behalf of the Crown.The effect of this would be to enable complaints against local authorities to be investigated. It would involve an Amendment to the Title of the Bill, and there is an Amendment down later which is designed to do that. I certainly think—and I hope your Lordships will agree—that this is a subject worthy of discussion. It raises a number of complicated problems. I am not asking for the immediate inclusion of complaints against local authorities, but I suggest that the Bill should not be drawn in such a way as to exclude complaints against local authorities now and in the future.
I think it is widely accepted that a large number of complaints relate to matters which concern local authorities or local authority officials, either directly or in- 614 directly—complaints which arise out of some action or inaction on the part of these local bodies. If it is the intention of the Government to tackle this problem, at a later stage I hope that we shall be told so. This was not the impression I gained on Second Reading. I hope that, as a result of this debate, we shall get some indication either of a change of mind or, at any rate, a clarification of the Government's intention.
As the Bill is now worded, it seems clear that any complaint against a local authority is permanently excluded. As I have said, the object of this Amendment, and the later one amending the Title to the Bill, is to enable investigations by the Parliamentary Commissioner to be extended beyond the limits of subsection (2) of Clause 4. It may be argued that anything so important as this should not be dealt with by an Order under the Bill, and that what is required is amending legislation. I think there is a case for saying that if we are going to bring in complaints against local authorities there should be amending legislation. But, even so, I think there would be a better chance if the Bill were not drawn in such a way as to exclude such complaints permanently from the scope of investigation by the Parliamentary Commissioner.
I recognise that there are a number of practical difficulties to be faced, and I hope that it will be in order for this debate to be reasonably wide in order that we may consider this question of complaints against local authorities. Broadly, I think there are three possible ways of enabling complaints of a local nature to be looked into. The first is by a local Ombudsman appointed by the local authority; the second is by some kind of Regional Ombudsman; and the third is by a deputy of the Parliamentary Commissioner giving special attention to complaints affecting local authorities. I do not think the adoption of one method necessarily rules out all the others; I think they could be complementary.
But let us consider them. The first suggestion—and I think it was mentioned by one or two noble Lords on Second Reading—is that each local authority should appoint its own local Ombudsman; that is to say, that the local authority should provide some kind of advisory service, as in Bristol. I am sure that a person appointed in that way could 615 perform useful work, particularly if assisted by a conscientious council. An employee of a council, by reason of the fact that he is an employee, cannot be expected to take on all the complaints of maladministration. There must be some limit to what he can do.
I hesitate to mention examples, bringing in individual names (I do not want to take advantage of the privilege of speaking in this House), but perhaps I may give one example which was reported in the Press. In the case of a certain local authority, under their standing orders contracts for the sale of land exceeding £1,000 had to be put out to public tender unless the standing orders were waived by the council. The finance committee approved the sale of certain land for the sum of nearly £50,000 without putting it out to public tender. It was alleged by someone who complained about it that the chairman of the finance committee was under some personal obligation to the purchaser, and, furthermore, the price of the land was very much below the market value. Nevertheless, the council waived the standing orders.
This was rather an unusual case because the individual who objected, although not personally involved, went so far as to take this matter to the court to try to get an injunction. But he was unsuccessful. The court was sympathetic, but pointed out that the council had exercised its discretion in waiving standing orders, and therefore there was nothing the court could do. That may raise all kinds of problems of discretion, and so on. I am mentioning that only as an illustration to show that there are cases where an employee of a council really cannot be expected to carry out the investigation. In a case such as that we really could not expect an employee of a council to take up the matter. So I think the local Ombudsman is a good idea.
Furthermore, I think the appointment must be made voluntarily by a council. I do not think it would be wise for Parliament to legislate and insist upon every local council having its local Ombudsman. To be successful it must be voluntary. Unfortunately, where there is most need for a local Ombudsman the council is probably the most unlikely to appoint one. So this is really only a partial 616 solution. I have come to the conclusion that either we must have a Regional Ombudsman (I hope I shall be forgiven for frequently using this name; I know there are some who say one should not call him "Ombudsman", but I hope I may be allowed to do so), quite separate from the Parliamentary Ombudsman, with his own separate machinery (there is much to be said for that; I think we must wait for the Report of the Royal Commission, but it may be that things will work out this way) or we must have some assistant or deputy to the Parliamentary Ombudsman.
It has been argued that there would be no sanctions in this kind of case. It is rather different from a Government Department. I do not think that is a valid argument. I think that if the Ombudsman had power to publish the facts, if redress has not been achieved, and also if he had power to ask the Minister of Housing and Local Government to institute a public inquiry, that would in most cases provide adequate sanctions. Quite often the matter would not get as far as that because it would be put right.
I think there are additional reasons for not restricting the potential scope of the Parliamentary Commissioner's investigations; and that, of course, is the point of this Amendment. We should not restrict it too much. There are many cases of action or inaction, or administration or maladministration, which seem to me to come into a territory between the responsibility of Government Departments and the responsibility of local authorities. For example, I find that when complaints are made to local officials they very often say, "Oh! but we are acting under Circular No. so-and-so sent out by the Ministry." I am not quite sure where the responsibility lies where a local authority is acting in accordance with a circular. Very often the content of a circular is a request rather than a directive, and it seems to me there is a borderline between Government Departments and local authorities, and I should not like to see the Parliamentary Commissioner restricted in such a way that he cannot go over that borderline.
Then, again, if eventually we do have a Regional Ombudsman, I think there would be great merit in the possibility of consultation between the Regional 617 Ombudsman and the Parliamentary Commissioner appointed under this Bill. There may be cases where the Regional Ombudsman could say to the Parliamentary Commissioner, "Really, I think, with all your knowledge and experience, this would be a matter which you could investigate. Will you please do it?" It would be unfortunate if he were unable to do so because of the limits of this Bill. What I feel is that we should not restrict the scope of this Bill unnecessarily; in other words, that we should keep the options open, and that is the main object of this Amendment. I beg to move.
Page 3, line 9, leave out from ("note") to end of line 12.—(Lord Wade.)
§ 3.16 p.m.
§ LORD SILKIN
When I saw this Amendment on the Paper I was very sympathetic. I felt that it was an unnecessary restriction of the function of the Ombudsman to limit him to maladministration on the part of the Crown or anybody acting under the Crown. However, having heard the noble Lord's speech in support of the Amendment, I have come down quite definitely against it. He himself has tried to explain how it would operate. He thought first of a local Ombudsman and he did not think that would work.
§ LORD SILKIN
The noble Lord probably thought he would be an employee of the local authority and that that would not be very satisfactory; and I agree with him. He then said, "What about a Regional Ombudsman?", but it would be voluntary and local authorities would not be obliged to take very much notice. The noble Lord has not worked out how it would operate. While I agree with him that most cases of maladministration are cases which are local government maladministration rather than maladministration on the part of the Civil Service or bodies under the Crown, I think we ought to confine ourselves at this stage to the Ombudsman acting in respect of matters set out in the Bill.
618 What I should like to ask the noble Lord who is going to reply is this. Would he be willing to have an inquiry into the method by which cases of maladministration on the part of local authorities could be dealt with? I do not think we are ready to incorporate anything on the matter in the Bill at present. The noble Lord, Lord Wade, has not really thought out how it would work; and it would be folly to put a power into a Bill when we are not certain what would be the machinery for working it, or whether or not it would be successful.
I think that if we could leave the Bill as it is at the moment but carry out an inquiry—and we need not rush it; normally inquiries take two or three years, and then it takes seven years before the findings are implemented, so there is plenty of time—that would be the satisfactory course. But let us think about it quite seriously, because I am sure there is something here that has to be dealt with. Sooner or later we shall have to deal with maladministration on the part of local authorities. If the noble Lord would agree to that course, then I myself would be satisfied.
I think we should also try to gain from the experience of the Ombudsman in dealing with cases of maladministration by the Crown. We have no real idea of how many cases we are going to get, how they are going to be dealt with, or what will be the exact machinery for dealing with them, and we need some time to gain experience in handling this matter. There is the great danger of taking on too much without knowing exactly how we are going to work it. In these circumstances, I hope that the noble Lord, having made his case, will not press it; and I also hope that the Government will be prepared to have an inquiry to see how it could operate if it were decided to do so.
§ LORD HARLECH
I am inclined to agree with the noble Lord, Lord Silkin, when he says that he is not sure that we are yet ready to incorporate such a wide expansion of functions in the Bill. I suggested in my Second Reading speech that the general public more often found themselves in difficulties with the local authorities than with the Central Government, and this was an indication that I felt that at some stage in the future a 619 method by which the general public could obtain redress about maladministration by local authorities needed to be seriously considered. However, it seems to me that to try to allow for this extension in this Bill would make it extremely complicated; indeed, I am not sure that it could be fitted into this Bill. Constitutionally it is difficult, as we have heard from the noble Lord, Lord Wade, and as the noble Lord, Lord Silkin, implied. No clear idea of how such a local Ombudsman would work has been presented to this Committee. For these reasons I do not feel that it would be wise to extend the Bill in this way at the present time, and therefore I hope the noble Lord, Lord Wade, will withdraw the Amendment.
§ BARONESS BURTON OF COVENTRY
I, too, was concerned during our Second Reading debate about this matter of local authorities, because it seemed to me (I think in common with everyone else who has spoken), that many of the problems which came to the attention of either House probably arose locally. I should like to take this opportunity of thanking the noble Lord, Lord Shackleton, for answering one or two of my points about local authorities which he was not able to do at the time. I have listened to what has been said by my noble friend Lord Silkin, and by the noble Lord, Lord Harlech, and it seems to me that the suggestion they have put forward is the right one. If I understood my noble friend Lord Shackleton correctly, he said that quite definitely in this Bill provision had not been made for covering local authorities, and he did not feel that it would have been right to do so, because no Minister was responsible to Parliament for what took place in local authorities. I intervene merely to support what my noble friend Lord Silk in said: that in view of the anxieties of many of us in this respect, perhaps the Government will look at the question of an investigation into this field to see whether it would be possible or advisable at some future date to amend the Bill to meet our anxieties.
§ LORD SOMERS
I feel that at this stage of the Bill I should like to accept the advice of the noble Lord, Lord Silkin, and my noble friend Lord Harlech. However we should all be 620 grateful if the noble Lord, Lord Shackleton, could give us some undertaking that the attention of Her Majesty's Government will be drawn to the fact that this House feels strongly that something should be done in the future about extending the powers of the Ombudsman to local government.
§ 3.24 p.m.
§ LORD SHACKLETON
With your Lordships' permission I will give a fairly full answer to the noble Lord, Lord Wade. This is a slightly irregular debate in certain respects, and I will not direct my attention to the nature of the Amendment, and whether or not it achieves what the noble Lord wishes, because I fully accept—and, indeed, believe it to be right—that we should have an opportunity to discuss a matter which is of great importance and which clearly exercises the minds of a number of your Lordships. At the same time we should be in slight difficulty if we were to pass this Amendment, because it is at least arguable as to whether it comes within the scope of the Bill. However, no noble Lord has moved to rule these Amendments out of order, and I am glad that this is so, because I think some worthwhile points have been made.
I should like to follow the noble Lord, Lord Wade, in his interesting speculation with regard to the best way of providing an Ombudsman—and I feel that in this context the word "Ombudsman" is better than "Parliamentary Commissioner", because what we are talking about is not a Parliamentary Commissioner, but a very different person. The arguments against amending the Bill have been pretty fully met, and I do not think I could accept Lord Wade's argument that, because we may have amending legislation in the future, we ought to amend this Bill to make it a little more harmonious with any subsequent legislation. If any action is taken in this field involving the Central Government, I am quite certain that new legislation will be necessary, and in so far as changes are needed to this Bill to make it harmonious with any future legislation, that can be done in the new legislation. Therefore I see no virtue in amending this Bill to provide for future legislation, even by way of expression of intent.
I am speaking now in a rather personal way, as other noble Lords have done. My 621 own feeling is that it is doubtful whether a single Commissioner, least of all the proposed Parliamentary Commissioner who would report to Parliament, could cope with all the complaints which would flow, in a country of 50 million people, about local authorities and, incidentally, about nationalised industries, which would be brought in by what I believe to be the intention of the Amendment. However, I do not propose to talk about nationalised industries. It seems to me that if there is to be a complaints procedure on Ombudsman lines for local government it will probably have to be on some sort of a decentralised basis. Otherwise, there would be the danger of creating another rather remote bureaucratic machine. But, of course, many of the trappings associated with a Parliamentary Commissioner in this Bill could not be applied to a group of Ombudsmen set up on a regional or local basis.
I accept that there may be answers to some of the points I am making, as there were to Lord Wade's points, but since I think he would wish me to speculate on these I will point out the objections that I feel. In the first place, the salaries could not be charged to the Consolidated Fund and I believe that there could not be Addresses to both Houses for their removal. Also it wouldn't seem sensible that they should report to Parliament rather than, conceivably, to local or, indeed (and this should appeal to the Liberals), to regional assemblies—whatever form local government may take in the future. Nor at the moment can I see that they can be given powers by themselves, as individuals, analogous to those of the High Court, as can an officer of Parliament, enabling them to summon persons and to call for papers in any and every direction. Nor could there be a procedure for channelling complaints through Members of Parliament; nor through a Select Committee. It is clear that this Bill is confined to matters affecting Central Government, and the Bill is directed to that end.
A Royal Commission is sitting at the moment, considering local government organisation, and it is conceivable that this Royal Commission may bring forward recommendations which can have a bearing on the possibility of running an Ombudsman and a complaints organisation of this sort in the local government 622 field. It has been pointed out that it is open to local authorities, without fresh legislation, to appoint a senior official to act as Ombudsman, and I do not entirely accept the argument that he would be powerless because he was an official of the local authority. It would be perfectly possible to give him the sort of contract which could be broken in only a rather expensive way and which would, to a large measure, guarantee his independence. But, frankly, it would not be practicable over the whole run of local authorities in this country.
It is conceivable that a very large authority could and, indeed, might well experiment, and there is a lot to be said for that. It could be made known that complaints could be addressed personally to the particular official. They could insist that his report went to the council as a whole, and they could undertake in certain circumstances to make that available to the local Press, although here again questions of privilege would arise and could cause difficulties. With efficient backing from elected councillors such an officer could go a long way towards fulfilling this particular purpose. But there are so many small authorities in this country that I think it is impossible to expect this system to be introduced by individual action, and I agree with the noble Lord, Lord Silkin, in his very helpful remarks—that we need to see how the present scheme works out.
One of the main purposes of resisting this Amendment, quite apart from the fact that I think it would be inappropriate in this Bill, is that we want the Ombudsman, the Parliamentary Commissioner, to work efficiently, and we do not want to overlay him with more than he can cope with. Furthermore, there are certain areas of local authority activity that come within the purview of central Government and therefore will be open to investigation by the Parliamentary Commissioner. Indeed, we have just discussed some on Lord Somers's Amendment. I would say that for the moment we are entirely right not to press this matter further.
The noble Lord, Lord Silkin, asked whether the Government would undertake to hold an inquiry. I am afraid I cannot give him a positive answer today, but I agree with my noble friend, 623 Lady Burton of Coventry, that the Government will sympathetically consider this matter. We want to get the present Parliamentary Commissioner scheme going and see how it works. Meanwhile, further thought can be given to this point, and I think that if this further thought takes place within the context of the recommendations of the Royal Commission it is likely that some form of procedure of the kind that we have discussed to-day may well be introduced. I agree with the noble Lord, Lord Silkin, that it may take some while.
There is one thing I would say to noble Lords. We ought not to underrate the virtues of local democracy. We know local councillors who work in the most selfless and devoted way on behalf of their constituents, and who act in much closer association than many Members of Parliament are able to do. Furthermore, they have direct access to officials, which Members of Parliament do not have. They are able to go to the clerk to the council, they are able to go to the various managers, the borough surveyor and others, and ask directly for explanations. This unofficial liaison even occasionally goes on with Members of Parliament, though I must say it would be very undesirable if Members of Parliament were to involve themselves too much in local government. It is always a sort of unofficial arrangement.
§ LORD SOMERS
May I interrupt the noble Lord? I quite agree that they are always able to go to the town clerk and ask for information, but I regret to say they do not always get it.
§ LORD SHACKLETON
There are councillors and councillors, as there are Members of Parliament and Members of Parliament, and even Lords and Lords, and the determined man is in a position to press. This is something which I hope the majority of councillors in fact do. I want to make this defence of local government. But this is not to suggest that there are not areas where very properly some form of Parliamentary Commissioner activity would be necessary. It would be a different type of institution altogether. It might well be that it would require a different type of controlling body, some form of special commission, of the kind I believe was in either the Young Conservative or the Conservative Party 624 pamphlet on this subject, a mixture of judicial and local authority.
I think it has been a worthwhile discussion. I gather it is not the intention of the noble Lord to press the Amendment to a Division. I can say certainly I will draw the attention of my right honourable friends, and in particular the Lord President of the Council, to all that has been said to-day, with particular reference to the point made by the noble Lord, Lord Silkin.
§ LORD WADE
I am much obliged to the noble Lord, Lord Shackleton, for his observations. The object of moving this Amendment was to enable the subject to be debated; it seemed to me that it was one that should be discussed. I think most Members of the other place would confirm that a large number of the complaints which they receive are of a local nature. But I recognise the practical difficulties. In fact, I was not suggesting the immediate inclusion of local authorities in the authorities that could be investigated by the Parliamentary Commissioner, but I was suggesting that there should be provision for this sphere of investigation to be added at a later stage. I agree entirely with the noble Lord, Lord Shackleton, that there is much that a conscientious councillor himself can do. But there are these cases of maladministration that somehow or other must be tackled.
The noble Lord, Lord Silkin, implied that I had not thought out the subject fully. If I may say so, perhaps that was partly due to the fact that I did not wish to make my speech unduly long. So far as the Regional Ombudsman is concerned, I spoke at some length on that matter on a Private Member's Bill which I put forward last autumn, and I did not want to go over all that ground again. I recognise the practical difficulties, but it is most important to direct attention to this problem and not to consider that once the Bill is passed the problem of local complaints no longer remains, because the complaints will continue. I would support the suggestion that there should be some kind of inquiry into this subject to consider how best to deal with it. There is an Appendix to the Report of the Whyatt Committee. They spent some time on this problem of local complaints, but they had not the time or finances to carry out any major 625 investigation. I should have thought an inquiry by a committee like the Whyatt Committee or in some other way might be well worth while. I hope that this short debate this afternoon will have helped to focus attention on this problem. Having said that, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 4 agreed to.
§ Clause 5:
§ Matters subject to investigation
§ 5.—(1)Subject to the provisions of this section, the Commissioner may investigate any action taken by or on behalf of a government department or other authority to which this Act applies, being action taken in the exercise of administrative functions of that department or authority, in any casewhere—
- (a) a written complaint is duly made to a member of the House of Commons by a member of the public who claims to have sustained injustice in consequence of maladministration in connection with the action so taken; and
- (b) the complaint is referred to the Commissioner, with the consent of the person who made it, by a member of that House with a request to conduct an investigation thereon.
§ (4) Nothing in this section shall be construed as authorising or requiring the Commissioner to review by way of appeal any decision taken by a government department or other authority in the exercise of a discretion vested in that department or authority.
§ 3.39 p.m.
§ LORD WADE
moved, in subsection (1)(a), to leave out "the House of Commons" and insert "either House of Parliament". The noble Lord said: I beg to move the Amendment standing in the names of my noble friends and myself. Here we turn to rather a different subject. The purpose of this Amendment is to enable Members of this House to pass on complaints to the Parliamentary Commissioner. Before discussing this matter, I think it is important to point out that the House of Lords is, or may be, involved in the whole subject of the Ombudsman in various ways. There are several degrees of involvement. We are not faced just with a simple decision between setting up a Parliamentary Commissioner or a House of Commons Commissioner. For example, this House is concerned with the wording of this Bill and the appointment of a Parliamentary 626 Commissioner; that is why we are debating it this afternoon. Secondly, we, together with the House of Commons, are going to be made responsible for the dismissal of the Parliamentary Commissioner. I know there was a great deal of controversy over that point in another place (I think it comes under Clause 1); but in fact they decided that the House of Lords together with the House of Commons should be responsible for the dismissal of the Parliamentary Commissioner. If another Amendment which I have tabled, and which will come on later in relation to Clause 10, is carried, the Annual Report by the Parliamentary Commissioner will be laid before this House as well as before the House of Commons. That is another example of involvement.
In this Amendment we are considering whether a Member of this House should be entitled to refer a complaint to the Parliamentary Commissioner. At present, as the Bill is worded, only a Member of the House of Commons can refer a complaint to the Parliamentary Commissioner. Frankly, I should be much happier if this suggestion had come from another place. I think this should not be regarded as a right which we are demanding, but rather as a service. I certainly should not like to see any jealousy between the two Houses as to who should or should not refer matters to the Parliamentary Commissioner. It is surely of mutual concern that we should help people who have grievances.
It is obvious, I think, that the majority of complaints from individuals go to Members of the House of Commons. I do not think one would dispute that. But there are occasions where it might be helpful if a Member of this House had the right to send a matter to the Parliamentary Commissioner for investigation. I do not think this need necessarily lead to embarrassment. For example, the Member of Parliament in whose constituency the complainant lives may himself be a Minister and he may prefer not to pursue it himself because the complaint is against another department. He may perhaps be quite content that some Member of this House should send the complaint to the Parliamentary Commissioner because it involves some other I colleague, or the department of some 627 other colleague. Then again, the senior Minister responsible for a department might actually be a Member of this House, and an M.P. may be quite willing that the case should be sent to the Parliamentary Commissioner by a Member of this House rather than by a Member of the House of Commons, and that the Parliamentary Commissioner should report back to the Member of this House.
There are, perhaps, some dangers. We must avoid a situation where a persistent complainant writes to a number of Members of both Houses and tries to get M.P.s and Members of this House to bombard the Parliamentary Commissioner. I can see that there are dangers there. But I think we could work out rules of etiquette, a sort of understanding between the Houses, which would ensure that this embarrassment did not arise. There is a dilemma, but I think it can be overcome. After all, the main thing is that we should keep the channels of communication with the Parliamentary Commissioner as open as possible. The object of this Amendment, therefore, is to suggest that Members of this House should have a right to send a case to the Parliamentary Commissioner for investigation, and that it should not be allowed only to Members of the House of Commons. I beg to move.
Page 3, line 25, leave out ("the House of Commons") and insert ("either House of Parliament").—(Lord Wade.)
§ 3.45 p.m.
§ LORD WILLIS
I rise to support warmly this Amendment, and to thank the noble Lord, Lord Wade, for the clear and concise way in which he moved it. Unfortunately, I could not be here for the Second Reading of the Bill, but I went most carefully through the Report of the debate and I noticed that the noble Lord, Lord Shackleton, said that in putting forward the arguments he had convinced himself. I must say that on reading them they did not convince me, and I did not feel that his arguments had any real weight. In fact, I must say that the reasons for excluding this House from the Bill are just about the most feeble that I have ever heard. We all, I think, accept that, as the elected body in this country, the Commons has the final 628 authority. But as the noble Lord, Lord Wade, has pointed out, this is not an issue which challenges that principle at all. No question of power or privilege comes into this. As the noble Lord said, it is a question of a service
What are the arguments that have been put forward? The first is that the Commons is the proper channel for grievances; that a local M.P. is the man to whom the constituents would go with their problems and their grievances. Of course that is so. They have a right to do so, just as they have the right to approach a Member of this House and to ask us to deal with their grievances. Most of us who are approached in this way take the sensible step of advising that the complainant get in touch with his Member of Parliament, or of passing the correspondence or the issue direct to that Member of Parliament. I see no reason why that should change in the future. But there is the occasional issue or point where this is not possible, because of the nature of the issue, and a Peer who has the right to do so goes direct to the Minister.
The noble Lord, Lord Shackleton, pointed out on Second Reading that only 1 per cent. or less of the cases that go direct to Ministers come from outside the House of Commons or from this House. But some do, and I happen to regard that 1 per cent. as important; and I think it is a valuable argument for allowing this House to have access to the Parliamentary Commissioner. There has been no outcry from the Commons about the traditional right of Members of this House to approach Ministers direct with problems, and there is no evidence whatsoever that your Lordships have abused this relationship; and I do not see why there should be any suggestion that we should abuse our relationship with a Parliamentary Commissioner.
The second point or argument that was put forward was that the Parliamentary Commissioner might be swamped if Peers were included. I find this faintly illogical, and more than faintly insulting. We have already had the figure of less than 1 per cent. of the Members of this House who approach Ministers direct with questions and problems. Why assume that, by the appointment of a Parliamentary Commissioner, this is going dramatically to increase? I think it is an absolutely false 629 presumption and shows the weakness of the argument. Why assume that suddenly this House is going to be overcome by a gigantic fit of irresponsibility? Why should we, to use the terms used in the Second Reading debate, be less capable of screening and discretion?
The noble Lord, Lord Strabolgi, in the Second Reading debate, asked the noble Lord, Lord Shackleton, whether, if the Bill were passed in its present form, it would be our task to write to a Minister or to the M.P. The noble Lord, Lord Shackleton, replied:I would hope that the noble Lord would have the judgment and experience to judge that for himself".—[OFFICIAL REPORT: 8/2/67, col. 1466.]Of course, he completely excludes the suggestion that we might also have the judgment and experience to decide whether or not to approach a Parliamentary Commissioner, if he were appointed and we had that particular right. By his argument he implied that only M.P.s had the judgment and experience which would allow them properly to approach a Parliamentary Commissioner.
The third argument was that the Commons will, after all, be paying for the Commissioner. This is really dredging the bottom of the barrel. It is the weakest argument of all, because the Commons pay for everything. They even pay for our central heating and our air-conditioning (this is a matter we might take up with them at some time or another). This is the sum total I can find of the arguments put up as to why this House should not have the right to approach the Parliamentary Commissioner.
There are, in my view, many arguments on the other side in favour of your Lordships being allowed to approach the Parliamentary Commissioner. In the first place the very term "Parliamentary Commissioner" seems to me to argue that. We are not M.P.s, perhaps, but we are Members of Parliament—not elected, but with right. On the Writ which I received, as no doubt did all your Lordships, when I came into this place, there are the words:to have, hold and possess a seat, place and voice in Parliament".Either that means what it says or it does not. As Members we have issues of public interest put to us, and it is conceivable that on very rare occasions—and 630 I say "very rare"—it may not be possible or right to take an issue up either with a Minister or with an M.P. I think your Lordships would have sufficient judgment and experience to decide those very rare cases. But, in essence, this Bill says that we are not a part of Parliament. And yet we have the contradictory situation which arose from Lord Strabolgi's question the other day, when he asked whether we should write to our M.P., for we do not have an M.P. We do not have a vote in a General Election or a Parliamentary by-election. We are disfranchised when we come to this place because we are Members of Parliament. Therefore, in a sense, we have no local M.P. whom we can approach, but we have to rely on a kind of channel between ourselves and the other House.
The other argument is that access to the Parliamentary Commissioner would in no way weaken or undermine the powers of the Commons. I think that is obvious enough, and so obvious as not to need labouring. It may seem strange that I, who many years ago used to get up on platforms and propose the abolition of this House, should now be defending this particular Amendment; but, frankly, I should like to know where I stand, because I do not know at the moment. At the moment we have a constitutional Second Chamber, and while it exists I want it to play a worthwhile part. I do not want to waste my time coming here if it cannot do that. I am rather worried about the way things are going. Two more Government reshuffles and we shall have one Parliamentary Secretary to answer all the questions and to make all the statements on behalf of the Government. I used to think in terms of the abolition of this House. If the Government intend to abolish the House, that is all right with me, for at least I shall know where I stand. If it intends drastically to restrict our powers, that is fine, for again at least I shall know where I stand. But I do not want to be present and sit here at a wake. I do not want to sit here and watch this House, not be abolished, not be restricted, but slowly being withered away by measures of this sort.
So that it what is in my mind when I support this particular Amendment. I was asked to come here, as we all were, to do a job and to play a part. I believe 631 that this proposal would extend the part I could play, without my in any way treading on the toes of Members of the other place. That is why I strongly support this Amendment. I hope that the Government will have second thoughts about this matter. I hope that my noble friend Lord Shackleton will be able to bring this particular pair of trousers back from the cleaners safely, because, like many other noble Lords here, I do not want to sit in this place as a Parliamentary eunuch.
§ LORD SOMERS
I should like to support this Amendment very strongly, and would endorse every word said on it by the noble Lord, Lord Willis. I am very sad that some Members, even in my own Party, are rather tending to downgrade the position of your Lordships' House to-day. As the noble Lord, Lord Willis, has said, this is one of the Houses of Parliament. One point which interests me very much is the number of letters which are written to me personally whenever any matter of public interest is coming up. I receive letters asking me to support this, that or the other issue, or to oppose this, that or the other Bill. If that happens to me, one of the least distinguished of the Back Benchers of your Lordships' House, how much more must that be the case with the rest of your Lordships. I feel sure that the public have a good deal more confidence in us than we have in ourselves. I sincerely hope that the noble Lord, Lord Shackleton, will accept this Amendment.
§ 3.57 p.m.
§ LORD CITRINE
I must say that when I heard that this House was to be excluded from participation in the system that is being set up under this Bill, I was rather puzzled. Like the noble Lord who spoke from these Benches a short while ago, I do not see the least trace of a constitutional issue being involved in this. If this had been a measure which I felt in any sense increased the powers of this House to thwart the will of the elected Chamber, I should have been against it. But this Bill is based largely upon Continental experience, its purpose being to avoid injustice. Anybody who has had any experience of the operation of large Governmental Departments must recognise that injustices in matters of 632 administration can be very severe indeed. The setting up of a Parliamentary Commissioner to investigate the matters which are contained in the Schedule to the Bill seems to me to be a step forward in securing the preservation of such liberty as the individual in this country supposedly possesses.
I would not go so far as to say that I support this Amendment, because I have not heard the arguments against it, but I find it very difficult to conceive what those arguments are. We in this House have the power to put Questions to Ministers, and although I am not clear in my mind about the matters which are excluded from Questions, the range of Questions which Members in this House can ask is extremely wide. There have been several occasions within my years of membership of the House when noble Lords have referred to individual cases—not merely on one occasion but on several. I would instance matters raised by the noble Lord, Lord Russell of Liverpool. Several times substantially the same kind of Motion has been moved by the noble Lord, and no one has ever thought to take exception to it. On one occasion, this House sat very late investigating such a case.
Therefore, it seems to me that by means of Questions to Ministers, by introducing Motions where it is thought that injustice has been done, the right of this House to engage in such matters has been established for quite a long time. The mechanism which is being set up under this Bill extends the method, and makes it far more independent than it would be if complaints had to be dealt with solely by Government Departments. I cannot see why it is proposed that investigation should be confined entirely to Members of the House of Commons.
Let us suppose that this Bill passes— as it most assuredly will do—without any alteration or amendment or widening of the powers of Members of this House. Shall we be told at some subsequent date that this House has no status in the range of questions being investigated by the Parliamentary Commissioner? I think that improbable; but having seen something of the quirks and divergencies and interpretations of Acts of Parliament, I think that it is a possibility. All I am 633 saying is that I, like other noble Lords, am puzzled as to why this exclusion has been made. I think it would help if Members of this House had the same opportunities and the same rights in this sphere as Members of the House of Commons; and it would also be an advantage to the public at large. I am waiting with some puzzlement to hear the case against what seems to me a very sensible and a very just Amendment.
§ LORD HARLECH
I should like to intervene very briefly on this Amendment, and I speak purely personally. I do not think any Party issue arises on it, so what I have to say represents only my own views. I am bound to say that I do not feel very strongly about this matter; certainly not as strongly as my noble friend Lord Somers, or the noble Lord, Lord Willis. I certainly do not think we should do anything which downgrades your Lordships' House, but I do not think that anything in this Bill does that. It seems to me that, over many years now, the normal constitutional practice has been that if an injustice seems to have been done to some individual it is a matter for appeal, in the first instance, to a Member of Parliament. The Member of Parliament has a very wide armoury of weapons with which to pursue Ministries, and even, in some cases, as the noble Lord, Lord Shackleton, said on the previous Amendment, local authorities. There is the Parliamentary Question, and, of course, in another place there are many more Members to raise Parliamentary Questions than we have in this House. If we look at our Order Paper, we find that there are very few occasions on which individual personal cases are taken up at Question Time. This is not the position in another place.
Then there is the possibility of Adjournment debates in another place. I should have thought that the procedure works, and has worked, pretty well. Members of Parliament are well distributed over the country. There are 630 of them, each taking in a body of people, and there is not much doubt in anybody's mind about whom he should write to if he has a grievance of some kind. Moreover, there is not the same territorial distribution of Members of your Lordships' House, in spite of their titles. In many cases, noble Lords do not live anywhere near the 634 place which their title might suggest. It is quite reasonable that in the first instance the public should write to their Member of Parliament. But if there is a case where somebody writes in the first instance to any Member of your Lordships' House, then, of course, that Peer can take the matter as far as he can; and, no doubt, in many cases he will find a solution. But if he does run into difficulties, if it is the sort of case into which it is felt the Parliamentary Commissioner should make an investigation, I cannot conceive of a situation in which a Member of your Lordships' House will be unable to find a Member of Parliament prepared to put the case to the Parliamentary Commissioner. Therefore, my real reason for not insisting on Peers taking up these cases is that I do not believe there will be one single case deserving of investigation by the Parliamentary Commissioner which will not be investigated, whether or not your Lordships are included in this Bill.
§ LORD POPPLEWELL
I do not feel too strongly about this Amendment, but on balance I oppose it, and I differ from my noble friends Lord Willis and Lord Citrine in my approach to it. It seems to me that, by suggesting that these powers should be extended to this House, we are trying to set ourselves up as a rival to the other place. But are we really considering what we are meaning when we are doing that? We are an entirely different body. We have no territorial claims and do not represent constituents. We are either hereditary Peers or Peers who have been appointed. We have not been before the electorate, and the Parliamentary procedure down through the ages has been that the rights of the people are safeguarded through their elected representatives in the House of Commons.
§ LORD SOMERS
May I interrupt the noble Lord for one moment? I have heard no impression at all that this Amendment implies that this House is to be a rival to the other place. We are not trying to give ourselves any powers of legislation. We are merely making it possible for us to convey a complaint to the Parliamentary Commissioner.
§ LORD POPPLEWELL
If the noble Lord, Lord Somers, has not assessed the Amendment on that basis, I cannot help 635 it. That is exactly how I am assessing it. Down through the ages, the constituents of Members of Parliament have known—
Would the noble Lord forgive me for a moment? He refers to Members of Parliament. He may be aware that there are two Chambers of Parliament, and every Member of this Chamber is a Member of Parliament.
§ LORD POPPLEWELL
Yes, I am aware of that, and if I may I will deal with that a little later. I should like, first, to deal with the position of the elected representatives. Down through the ages, the Members' constituents have evolved a way in which they get a redress of their grievances, and this Bill is purely an extension of that. Members of Parliament might feel that there are certain maladministrations somewhere, and this Bill is ensuring the right to get hold of the information given to the Minister by his Department, so that the Ombudsman can investigate to the full and form a clear opinion. Therefore, if we challenge that and say that, although we are hereditary Peers or appointed Peers with no responsibility to constituents, we should have this power, then we shall be challenging the elected representatives. The noble Lord, Lord Somers, and I must agree to differ on this point.
In reply to the suggestion that we are Lords of Parliament, and that Parliament consists of two Houses, there are some clearly defined constitutional lines along which we work. The statement which was put forward last Thursday by the noble Lord, Lord Carrington, when he defined the powers of this House and spoke of how we ought to challenge the decisions of the other House, was most admirable, to say the least, and I think the principle which he put forward will stand for a long period of time. That is the basis of the difference between the two Houses.
Let us have another look at this issue. There are something like 630 elected Members of Parliament. How many Peers have we? We have around 1,080, or something like that. Of course, many of those Peers do not attend; if the information which I have been given is correct, only about 350 Members attend this House and keep up to date. If the 636 scope of the Ombudsman were extended to the Peers, how could we define that a Peer who did not attend at all should not have the right? Alternatively, are we going to say that only those350 who have indicated that they are likely to attend should come within the scope of the Bill? I therefore think there is a big difference between us and M.P.s in this regard, and that this privilege should be confined to M.P.s.
The noble Lord, Lord Wade, said that we are involved by virtue of the fact that this concerns an Act of Parliament and that, by our approval or otherwise, we consent to the appointment of a Commissioner or take part in his dismissal, because we are Lords of Parliament. That is the position, according to the Constitution and the running of both Houses of Parliament. In order to go on the Statute Book a Bill must receive the approval of both Houses, and it is purely in that sense that we are involved. I do not put as wide an interpretation on this fact as the noble Lord, Lord Wade, does. I do not think we have a right to demand this privilege, as I think was being inferred from that fact.
Therefore, though, as I have indicated, I have no really strong feelings in this connection, as the other place has given consideration to the constitutional positions of both Houses, as it naturally must do, and has decided that it is the prerogative of the elected representatives, and not people such as ourselves, to seek the redress of grievances, I sincerely hope the noble Lord will not press this Amendment to a vote. If he does press it to a vote, however, I hope it will be defeated, because I think it would be wrong to occupy the time of the Commons once again in putting it right.
§ LORD CONESFORD
May I support my noble friend Lord Harlech? I really do not believe that any of these great constitutional matters arise at all on this Amendment. I do not believe for one moment that the House of Commons would be hurt if we adopted this Amendment: nor do I agree in the least that this House would be injured if we did not adopt it. I think that, as my noble friend Lord Harlech put it, it is purely a matter of convenience; and, considering it as a matter of general convenience, I have concluded that on the whole the provision in the Bill is right as it stands.
637 My reason for that conclusion is this. I do not think that the Government will find that the provision in the Bill as it stands makes the membership of another place a very effective sieve in preventing a certain number of unnecessary cases from being referred to the Commissioner. At least, however, there is the possibility, since a Member of another place can exercise a critical appraisal of the individual case brought before him. He probably has more direct territorial connection with the complainant and he has certain opportunities for making inquiries that are not so readily available to us here. I differ, with respect, from the noble Lord, Lord Willis, who seemed to think that this was a slight upon this House. He was under the impression that the passing of this Amendment would increase the powers of this House. I do not think it will do anything of the kind.
§ LORD WILLIS
Would the noble Lord allow me to interrupt? I made it quite clear that I did not want the powers of this House to be increased but I did want our ability to give service improved.
§ LORD CONESFORD
I am much obliged, and I readily adopt that correction; but I think the noble Lord is wrong. May I give a simple example of how this House and another place differ, even as regards Parliamentary Questions? Parliamentary Questions have been mentioned as if the main difference between the two Houses is the fact that we have far fewer Parliamentary Questions, but there is another, quite important, difference which I think has some bearing on the matter we are discussing. In another place, as so many of us who have served there are well aware, one addresses one's Question to an individual Minister; and, of course, in the type of case that falls within the provisions of this Bill, it is to an individual Minister that one would most likely wish to address the Question. But in this House we do not address our Questions to individual Ministers: we address them to Her Majesty's Government.
Now I have some eleven years' experience in this House and I know that a certain number of occasions arise—I do not know if this is usual or unusual—when I am consulted by some member of the public on an individual problem. 638 I very often find that the convenient reply is to ask, "Have you written to your Member of Parliament?"—because very often that is the sensible first step to take. I have also known cases in which there has been an injustice, cases which I have wished to raise in Parliament—and, as the noble Lord, Lord Willis, and others have said, this House is a part of Parliament. There is nothing to stop our raising anything in this House if we think some injustice has been done.
All we are deciding, it seems to me, is the convenience of a particular piece of machinery. From my experience, I believe the cases would be extremely rare, if they existed at all, in which we found the use of that piece of machinery necessary or desirable. I think I am as keen as anybody in any quarter of this House on the rights of Peers and on the rights of this House of Parliament, but, as a mere matter of convenience, I cannot think that our powers, our usefulness or our ability to serve are in the least affected by our not being given the powers which this Amendment proposes.
§ BARONESS BURTON OF COVENTRY
What has really worried me throughout the discussion on this matter, both at this stage and at others, has been the reasons we have been given from the Front Bench for its not being the right suggestion. I support the Amendment. Rather like my noble friend Lord Citrine, I am waiting to hear what reasons are given us at the end for its not being adopted.
§ LORD SHACKLETON
May I interrupt the noble Lady? With what reasons that have been given does she not agree?
§ BARONESS BURTON OF COVENTRY
I am just proposing to come to them. That was my preliminary paragraph. I have got two answers by the noble Lord, to which I am coming, but I have not quite reached them yet. It is these answers which have been given which rather worry me. But before I come to the reasons given by my noble friend Lord Shackleton, I want to say that I do not really agree with my noble friend Lord Popplewell. I am sorry not to agree with him, but he, Lord Wade and I, and other Members of this House, have had 639 a certain number of years' experience in another place, and I certainly do not regard this as an attempt to set ourselves up against another place. Nor, I think, does any other noble Lord who supports this Amendment. For one thing, it would be quite useless; for another, I do not think it is intended.
I looked very carefully at what my noble friend the Lord Chancellor had to say about this matter in his opening speech on Second Reading. It seemed to me that what I, at any rate, thought he implied as a reason for not adopting the suggestion that we should be included in the scope of this Bill was a better type of reason, or more acceptable to me, anyway, than what I have heard since. My noble friend the Lord Chancellor said that he thought there was a certain amount to be said about this proposal both ways. That, I think, we all accept. He then went on to say something with which I should think every past Member of another place was in agreement; namely, that being an M.P. is very destructive of domestic life. I think those of us who have been in another place could not agree more. One of the joys of being here, of which there are many, is that it is nice to have a little domestic life occasionally and to know where one is in that respect. Then the noble and learned Lord went on to say that, having looked at various things—and he, in particular, was referring to the number of complaints that M.P.s said came up each year—it was felt on balance advisable that this House should not have this privilege of referring matters to the Commissioner.
I can well understand—even though I may not agree—when somebody gets up and says that there are arguments both ways, but that on balance such-and-such a view prevails. But if somebody gets up, as did my noble friend Lord Shackleton—whom I respect equally—and says he does not feel that this could be accepted because we have to maintain some area of screening and discretion, then I must say that I do not think that that is a valid reason for excluding Members of this House. Then my noble friend went on to refer to what my noble friend Lord Willis quoted, that, of the number of cases which go forward each year, probably not more than a fraction 640 of one per cent. come from this House. But I do not see any reason for excluding that one per cent. And, if it is only one per cent., that answers my noble friend Lord Popplewell; because it leaves the 99 per cent. somewhere else.
Seriously, I think the noble Lord, Lord Wade, had a good point about Ministers. We are dealing only in small numbers, and these cases will arise. I thought that my noble friend Lord Citrine was on a valid point when he referred to injustices. After all, injustice, whether it is to one per cent. or to 99 per cent., is something that we should like to see put right. I do not agree with my noble friend Lord Popplewell—and I do not think that, on reflection, he can maintain it—about these 1,000-odd Peers who do not come to this House and who, he suggests, are suddenly going to rush into action, deluging the Parliamentary Commissioner with complaints.
§ LORD POPPLEWELL
I did not suggest that in any circumstances. My point was that so many of the Peers who do not come into this House would have the right to do so.
§ BARONESS BURTON OF COVENTRY
I misunderstood my noble friend. We can look at Hansard and see who was right. I should be glad if the Front Bench could look at this again. After 10 years in another place I am not looking for any more jobs. It is very pleasant not to have constituents, however nice they may be, breathing down your neck during the week-end. I have not decided what I shall do if there is a Division, but I am not going to vote against the Amendment. I hope that my noble friend Lord Shackleton will not be angry with me and will offer alternative and better reasons than before for not accepting this Amendment.
§ 4.25 p.m.
§ LORD LEATHERLAND
My noble friend Lord Willis painted a picture of a fate worse than death: that we may be sitting here as eunuchs if this Bill is passed unamended. I hope that that day will be long deferred; but in any case I do not think it is likely to happen. I think he was obscuring the issue. I want to assure my noble friends on the Front Bench that when Lord Willis spoke as he did he was not necessarily voicing the 641 views of all who sit on these Benches. I have been here just over two years. I have learned to love your Lordships' House; I have learned to appreciate the much good work it can do, the great influence it can bring to bear upon public opinion. Nevertheless, I do not want to see the powers of this House extended at the expense of the elected House.
I find that under our existing Constitution and procedures we have been able to pounce upon every public issue that has deserved public consideration— and also, if I may say so, on a few issues that probably have not deserved public consideration. We have many important public functions, but I do not think that at this moment this House ought to try to increase them. We ought not to try to provoke the other House at this particular moment, when relations between the two Houses are in a rather delicate condition.
§ LORD WILLIS
May I interrupt my noble friend? He referred to the powers of this House being "extended at the expense of" the other place. Can he indicate to me what in this Amendment would extend the powers of this House at the expense of the other place?
§ LORD LEATHERLAND:
The Amendment proposes to withdraw from the other place, the elected Assembly—and we may have a feeling of contempt for elected assemblies if we wish—the power of monopoly in these matters which this Bill intends to give them. If the Amendment proposes to give two Houses the power to do this particular thing, it seems to me that it is derogating from the power which the Bill proposes to give to the other place in isolation.
Many of us who have been involved in Party politics, in constituency politics, for thirty or forty years know that Members of the other House feel it their right to take up grievances on behalf of their geographical constituents. I think that it would lead to antipathy between the two Houses if we the non-elected House tried to usurp those rights. It is a fact that those noble Lords who have been Members of another place will recognise—as I recognise, having been a member of a county council for over twenty years—that every M.P. regards himself as something in the nature of an Ombudsman's agent. I think that we ought not 642 to trespass on their particular preserves; and we ought not to do anything likely to cause antipathy, ill-feeling or rivalry between the two Houses.
If this House were completely impotent (if I may follow the metaphor of my noble friend) to take up any grievance brought to our notice, we might have cause for complaint. We might possibly have cause to support the Amendment which the noble Lords, Lord Wade and Lord Willis, have advocated. But we are not embargoed from taking up those complaints. We can write to Ministers, as many of us frequently do; when local complaints are brought before us we can raise Questions in this House, as many of us do; and if we are not satisfied by the Answers we receive we can put down a Motion or an Unstarred Question, or raise debates on these matters. It seems to me unnecessary that, at this delicate stage of relations between the two Houses, we should have this additional power, particularly as we already have every power we could desire to ventilate any matter of public importance.
§ BARONESS HORSBRUGH
I want to say only a few words. First, I should like to say that I do not consider this Amendment to be in any way designed to provoke the other place; nor will it take away powers from the other place; nor will it create any difficulty from the Constitutional point of view. It seems to me that it is simply a case of who is to do the job of conveying to the Parliamentary Commissioner the grievances of some of the citizens of this country. What we are deciding is whether a citizen is to know that he can take his grievance to a Member of the other House, or whether he is to be told that any noble Lord in this House can also send the grievance to the Parliamentary Commissioner. It is only a question of the channel through which the Commissioner is to receive these complaints.
It seems to me that in the other place a Member is accustomed to dealing daily with the grievances of his constituents. He goes into the matter, and perhaps he puts down a Question in the House. He may see the Minister in person, or he may write to the Minister. But before he does either of these things he will have found out the real facts of the case. Those of us who have been in another 643 place know that that is a very necessary procedure. As we all know, there are cases where the grievance is not so much of a grievance when we come to look carefully into the particulars of it, and we might be able to get the whole matter settled without bringing it to Parliament. I feel that we in this House have not the opportunity to look into grievances, nor do we have the knowledge which we ought to possess before becoming a channel by which grievances might be sent on. Every Member of Parliament has his own machinery. He knows his constituency and what is happening there, and can check the facts. It would involve a great deal of work for us to do that. I agree with the noble Baroness, Lady Burton of Coventry, who said that she had done that for ten years and did not want to do it any more. What we are discussing is simply how the information is to be conveyed to the Commissioner. It has nothing to do with Parliamentary Government, or offending this House or the other House, or with looking upon the matter as any great service.
If any of us hear of something which ought to be put right we can discuss it with a Minister without much difficulty, and if the worst came to the worst we can find out the real facts in a particular constituency. The first person from whom one would inquire would be the local Member of Parliament, and in many cases the Member of Parliament would be able to give us the information. He might act as the postman and send on the complaint to the Commissioner. It is not that we are proposing to put any matter right ourselves, or to judge whether a complaint is true or false. We are asking someone else to judge, and I think that the asking would be better and more expeditiously done by a Member of the other House.
§ EARL FORTESCUE
There are two points which I should like to make. It has not been suggested this afternoon that a Member of the other House might be extremely pleased if some complaint came to one of your Lordships and he did not have to investigate it himself. The other point is that if anyone listening to this debate, or reading the report of it, by any chance skipped the speech of the noble Lord, Lord Cones ford, they might gain the impression that Members of this House had never done anything about 644 righting a wrong. I am quite certain that every generation of Members of your Lordships' House has done that, and I would remind your Lordships that 700 years ago the grievances of the nation were put to King John exclusively by Members of your Lordships' House.
§ 4.32 p.m.
§ LORD SHACKLETON
The noble Earl, Lord Fortescue, has brought me to where I intended to begin my few remarks by pointing out that, although we do not have territorial constituencies, we do have territorial responsibilities in our Titles. As the noble Earl said, these date from the time when the seeds of democracy were beginning to appear, as has been pointed out, from the actions of your Lordships' predecessors. I agree with the noble Baroness, Lady Horsbrugh, and indeed with the noble Lord, Lord Cones ford. It is not an important matter of principle; it is a matter of practice. It is not a question of giving a privilege to this House; if anything, it might be adding a burden.
My noble friends Lord Willis and Lady Burton of Coventry (and I have nothing, and would, I am sure never have anything about which to complain regarding what she said) suggested that the arguments used did not convince them. I do not know why they were not convinced, but I shall try to reiterate the arguments. Perhaps I was not as clear as was the noble Baroness, Lady Horsbrugh. I referred to 1 per cent. of cases, indeed less than 1 per cent., coming to Ministers, and this was intended to suggest that it was not a very important part of the whole field. The action of your Lordships, valuable though it may be in individual cases, is not so important as part of the whole matter of righting wrongs. This is not to suggest that individual noble Lords do not play an important and valuable part. But the difficult part of this operation is that which comes before the matter goes to the Ombudsman. Once you have sent it to the Ombudsman you virtually wash your hands of it.
The point I made, and which the noble Baroness, Lady Horsbrugh, reiterated, about the experience of your Lordships was not intended to reflect on any of your Lordships who are present, or upon others. It is theta Member of Parliament spends 40 per cent. of his activities 645 in this field. This is not historical or constitutional. The main role of your Lordships was made clear by the noble Lord, Lord Harlech, and it is referred to by Professor Bromhead who makes the point that, in relation to Parliamentary Questions, the system of Parliamentary Questions in the House of Commons, although not always related to individual cases is closely geared to constituency responsibilities.
My feeling is that we should be making a very big mountain out of a molehill were we to attempt to bring this additional burden or responsibility to your Lordships' House. I feel sure that some of your Lordships would be embarrassed at having this additional responsibility. The effect of accepting this responsibility would be that any member of the public could write to any Member of your Lordships' House and request him to take up some matter with the Parliamentary Commissioner. What would be the position of a conscientious and anxious Peer, especially one who does not attend your Lordships' House very frequently? Should he write to his colleagues and say, "Have you also had a letter?" Should he send the communication straight to the Ombudsman? Should he, at his own expense, travel to the constituency in question in order to investigate a complaint when already there exists a perfectly good Member of Parliament who visits the constituency regularly?
I say seriously to the noble Lord, Lord Willis, that I applaud his efforts to pursue individual issues of right and freedom. I have known the noble Lord do this and I would say that it is his privilege, as well as his enthusiasm. But this is not generally appropriate to the activities of the overwhelming majority of the Members of your Lordships' House. I do not wish to go on at great length. I am convinced that this is a responsibility that is not appropriate for your Lordships' House. We are not concerned with status in this matter, although I have noticed certain strains of status coming out of some of the speeches. I recommend to your Lordships that it would befit dignity as well as common sense not to pursue this Amendment.
§ LORD OGMORE
My noble friends and I are grateful to all those who have supported us on this Amendment. In view 646 of the very able speeches which have been made, particularly by the noble Lord, Lord Willis, and the noble Lord, Lord Citrine, we do not propose to delay your Lordships any longer. We hope that you will be prepared to come to a decision. I should like to make one point, which is that we are not asking for any further privileges. We look upon this as a duty. It gives the citizen an opportunity and it is, after all, the citizen who will approach a Member of this House if he desires. It is not we who would approach the citizen—it gives the citizen, as it were, another string to his bow. Several of us could testify that the citizen needs, or would make use of, this opportunity.
I have been approached on many occasions by members of the public, not perhaps on minor matters but on more important matters of principle by which they were affected, and I have tried to help them. Sometimes it was a case in which it was not appropriate, or the complainant felt it was not appropriate, to approach his Member of Parliament, although in the first instance I always suggested that he should do so. In this proposal we are not detracting from the privileges of another place but are simply giving another facility to the citizen. That is what should be borne in mind. I hope that your Lordships will join those of us who feel this way in the Division Lobby, because we intend to press this matter to a Division.
§ LORD WADE
We are all agreed that this is not a great constitutional issue. I think that there are individual cases which a Member of another place would be willing that a Member of this House should take up with the Commissioner. All we are asking now is that this Committee should decide whether the House of Commons should reconsider this matter. We are not overruling them. After so many interesting speeches, it is impossible for me to tell what is the majority view and, as my noble friend has said, I think that the best course is to test the opinion of the House and find out the majority view.
§ LORD MOYNE
If I am not out of order, having come in late, I should like to intervene for a moment. As we are in Committee, I think that is permissible. So often one gets a letter and does one's 647 best, not being an expert, to take up the matter with a Department. It seems to me that to be able to refer a complaint to an expert, rather than do it clumsily oneself, is the most practical course to follow. I wonder whether the noble Lord, Lord Shackleton, is saying that the Ombudsman can in no case take up matters brought up by a Member of your Lordships' House.
§ LORD SHACKLETON
I am, indeed. The noble Lord has given a most powerful argument against giving this privilege to your Lordships.
§ LORD WILLIS
As I indicated, I feel rather deeply about this point, but I find myself in a difficult position. I was hoping for some chink of hope from my noble friend that he might take this matter back and have it reconsidered. I
§ do not feel that his arguments were as powerful or as convincing as he hoped, though I listened with great care, and a willingness to understand them. In the circumstances, if the noble Lord, Lord Wade, presses the Amendment, I feel that the only thing I can do on this issue is to abstain.
§ LORD SHACKLETON
May I say to my noble friend that if I could honestly give him any ground of hope for reconsideration I would do so, but on merit I believe that we should reject this Amendment.
§ 4.44 p.m.
§ On Question, Whether the said Amendment (No. 3) shall be agreed to?
§ Their Lordships divided: Contents, 43; Not-Contents, 71.647
|Airedale, L.||Howard of Glossop, L.||Mowbray and Stourton, L.|
|Amulree, L. [Teller.]||Iddesleigh, E.||Moyne, L.|
|Asquith of Yarnbury, Bs.||Jessel, L.||Newton, L.|
|Barrington, V.||Kinnoull, E.||Ogmore, L.|
|Boston, L.||MacAndrew, L.||Rea, L.|
|Chorley, L.||Mar and Kellie, E.||Redmayne, L.|
|Citrine, L.||Margadale, L.||St. Helens, L.|
|Clwyd, L.||Massereene and Ferrard, V.||Sempill, Ly.|
|Cromartie, E.||Merrivale, L.||Somers, L.|
|Denham, L.||Mersey, V.||Strange of Knokin, Bs.|
|Dudley, L.||Meston, L.||Wade, L. [Teller.]|
|Emmet of Amberley, Bs.||Molson, L.||Willis, L.|
|Fortescue, E.||Monson, L.||Wolverton, L.|
|Headfort, M.||Mountgarret, V.||Ypres, E.|
|Abinger, L.||Gifford, L.||Nugent of Guildford, L.|
|Ailwyn, L.||Gough, V.||Oakshott, L.|
|Albemarle, E.||Granville-West, L.||Phillips, Bs.|
|Allerton, L.||Grenfell, L.||Piercy, L.|
|Ampthill, L.||Gridley, L.||Plummer, Bs.|
|Archibald, L.||Grimston of Westbury, L.||Popplewell, L.|
|Auckland, L.||Hall, V.||Rhodes, L.|
|Birdwood, L.||Harlech, L.||Rusholme, L.|
|Blackford, L.||Henderson, L.||Serota, Bs.|
|Bowles, L. [Teller.]||Hilton of Upton, L. [Teller.]||Shackleton, L.|
|Brockway, L.||Horsbrugh, Bs.||Shepherd, L.|
|Brooke of Ystradfellte, Bs.||Hunt, L.||Silkin, L.|
|Champion, L.||Hurcomb, L.||Sinclair of Cleeve, L.|
|Cones ford, L.||Hylton-Foster, Bs.||Sorensen, L.|
|Cooper of Stockton Heath, L.||Ilford, L.||Stocks, Bs.|
|Crathorne, L.||Kirkwood, L.||Strang, L.|
|Crook, L.||Lambert, V.||Strathcarron, L.|
|Daventry, V.||Latham, L.||Summerskill, Bs.|
|Dilhorne, V.||Leatherland, L.||Tangley, L.|
|Drumalbyn, L.||Lloyd of Hampstead, L.||Taylor of Mansfield, L.|
|Ebbisham, L.||Longford, E. (L. Privy Seal.)||Thurlow, L.|
|Falkland, V.||Mar, E.||Vivian, L.|
|Faringdon, L.||Morrison, L.||Wells-Pestell, L.|
|Gardiner, L. (L. Chancellor.)||Moyle, L.|
Resolved in the negative, and Amendment disagreed to accordingly.
§ 4.49 p.m.
§ LORD WADE
moved, in subsection (1)(a), after "injustice" to insert "which may have arisen". The noble Lord said: I beg to move this Amendment in the name of my noble friends and myself. I am hoping that this Amendment will be accepted. It is of considerable practical importance. It is closely related to the old question of the investigation of actions based on the exercise of discretion; nevertheless it is a separate point. I should like the Parliamentary Commissioner to have the greatest possible freedom to decide what to investigate. I think that Parliament should rely on his judgment as to whether a complaint comes within the scope of his duties and responsibilities.
Much depends on the interpretation of Clause 5(1)(a), which reads as follows:subject to the provisions of this Section, the Commissioner may investigate…in any case where(a) a written complaint is duly made to a Member of the House of Commons by a member of the public who claims to have sustained injustice in consequence of maladministration in connection with the action so taken.I think that in nine cases out of ten the person who has a grievance really does not know whether there is maladministration within the meaning of this Bill, or not. For example, last week a gentleman came to see me over a particular complaint. He was not certain whether when the Parliamentary Commissioner was appointed he would be able to send in his complaint. It seemed to be a genuine grievance, and he had already seen a solicitor, who had had a look at the Bill and advised him that he thought there would be no chance of the Parliamentary Commissioner's investigating the matter, because it was a discretionary decision, and the complainant would not be able to sustain that this was an injustice in consequence of maladministration. And, of course, if I have interpreted the Bill correctly as it stands at the moment, that is the kind of problem which may face a person with a grievance.
This point was put clearly by the noble Viscount, Lord Colville of Culross, in the Second Reading debate, when he said [OFFICIAL REPORT, 8/2/67; col. 1451]:The whole essence of so many of these complaints is that the person has a grievance, 650 but until it is investigated it will be quite impossible to say whether that grievance results from maladministration or from something else. If that is so, how can he in good faith claim that there has been maladministration before the matter as been investigated? Must there be an absolutely clear case, on documentary or other evidence, which will have to be available before the investigation before the Parliamentary Commissioner can be involved at all? If so, I think this is going to be very narrow. If not, I feel that a certain amount of interpretation of this expression in the Bill is required.Surely it should be for the Parliamentary Commissioner, and not the complainant, to decide whether there is a matter for investigation.
It is for that reason that I propose the insertion of these words. The subsection reads:…claims to have sustained injustice in consequence of maladministration…I propose to insert the words "which may have arisen" before the words "in consequence of maladministration". The intention of inserting these words is to make it clear that it does not really matter if the person with a grievance is not quite sure whether or not it is maladministration within the meaning of the Bill. It may be that there is some other better form of words that could be inserted to cover this point, but I think some clarification is needed, and I hope that either this Amendment will be accepted or some alternative wording inserted. I beg to move.
Page 3, line 27, after ("injustice") insert ("which may have arisen").—(Lord Wade.)
§ 4.59 p.m.
§ THE LORD CHANCELLOR (LORD GARDINER)
I do not think the skies will fall whether this Amendment is accepted or rejected. I am still open to persuasion about it, but I am not persuaded yet. If I may say so, I do not think that the argument of the noble Lord, Lord Wade, gives sufficient weight to the key word, which is "claims". The person complaining does not have to produce any evidence; he has not to prove anything to the Parliamentary Commissioner. But I think that he ought to have to screw himself up to say that he is claiming that he suffered injustice in consequence of maladministration. If you add words such as are suggested in 651 this Amendment, there seems to be no limit to the ambit you then get. I do not think, if I may say so, that the Committee, or certainly the public at large, realise how wide this Bill is.
If one takes one or two examples from the leading Departments of matters in which the question would not be whether the decision on a matter of discretion was right or wrong, but whether there had been maladministration leading to the decision, one may include, for the Ministry of Agriculture, refusal or curtailment of particular agricultural grants or subsidies, for example, on eligibility grounds; withholding of ministerial consent to or approval for various projects and activities. Examples might be refusal of applications for licences to complete new slaughterhouses; the withdrawal of seed certification or similar facilities; various regulatory actions against the wishes or alleged interest of the complainant; for example, in connection with the enforcement of rabbit control. Customs and Excise: application of revenue law by an Excise officer against a trader in a way which he alleges must handicap him against his competitors. The Ministry of Defence: grievances about the acquisition of land by compulsory purchase or under threat of compulsory purchase, and about the disposal of such land as surplus. Department of Education and Science: treatment within the Department of an appeal to the Secretary of State against the action of an education officer in excluding a child from school.
The Export Credits Guarantee Department: alleged improper revelation by the Department of commercial information obtained from the export contracts from one firm to another firm. Foreign Office: withholding of a passport in circumstances in which paragraph 5 of Schedule 3 to the Bill is not applicable; for example, because the applicant has been repatriated at public expense and has not yet repaid the money; issue of a passport with an error or omission leading to the holder being refused admission to another country; issue of a passport in a case where it should not have been issued, for example, where the Passport Office had been notified of a court order that a minor should not he taken out of the jurisdiction without the leave of the court; the manner of distributing a lump sum 652 payable in compensation received from a foreign Government in settlement of a number of claims by British nationals where the distribution is done by the Foreign Office itself; a decision by the Foreign Office on the nationality status of an individual resulting in the withholding of assistance, or other alleged injustice; the giving of inaccurate information about a foreign country leading to financial loss.
Ministry of Health: action taken in the administration of one of the hospitals like Broad moor for which the Ministry is directly responsible. Ministry of Housing and Local Government: allegations that an appeal against a refusal for planning permission for a house had been dismissed owing to undue influence exerted by a powerful neighbour, or the compulsory purchase order for urban development had been confirmed through undue pressure by a big builder who wanted to carry out the work. Inland Revenue: delay in the settlement of a tax repayment claim. The Ministry of Labour: an allegedly unfair requirement of a small business to register its premises under the Offices, Shops and Railway Premises Act 1963; discontinuance of payments under the trading allowance scheme to an apprentice on his receiving an increase of wages; ill-considered rejection of an application by a worker moving to another area for financial assistance under the resettlement transfer scheme.
One can think of similar examples for the Land Registry, the National Debt Office, the Ministry of Social Security, the Post Office, the Ministry of Power, the Ministry of Public Building and Works, the Registry of Friendly Societies, the Scottish Office, the Board of Trade, the Ministry of Transport, the Treasury, the Treasury Solicitor, and the Welsh Office. As for the Home Office, of course there is a vast field about the administration of prisons, against punishments, especially those involving forfeiture of remission; against refusals to allow prisoners facilities to initiate legal proceedings, about allocation, transfer, medical treatment or food, or about alleged misconduct by the staff, and victimisation of complainants; releases from approved schools. A man convicted of murder who alleges after twenty years that nothing but maladministration can account for the fact 653 that he has not yet been released; if he is released, a complaint from his next-door neighbour that nothing but maladministration could account for having released such a dangerous man by whom the complainant expects at any moment to be attacked. I do not think, really, that anybody has sufficiently estimated the "fun" which both the Commissioner and the public are going to have once this Bill reaches the Statute Book.
There must be some limit. I should have thought that a man ought at least to have to screw himself up and say that he claims that he has suffered injustice in consequence of maladministration. If this Amendment were made in this form, it would cover absolutely any action of any Government Department that has ever been taken, because anything may be maladministration or may not. I am quite prepared to consider this again with a view to some extended form of words, but I think that, for the reasons I have ventured to give, this Amendment would really go too far.
§ LORD WADE
I am obliged to the noble and learned Lord the Lord Chancellor for going as far as he has, but it is not quite as far as I had hoped. I do not think that this is an Amendment which should be pressed to a Division, and I was not intending that that should happen. But I must say that I think there is force in the remarks of the noble Viscount, which I have already quoted. I think there will be some uncertainty as to exactly what has to be put in writing. The complainant has to make a written complaint and send it to his M.P., who has to decide whether to pass it on to the Parliamentary Commissioner. It may be that the Member of Parliament has had one or two unfortunate experiences in which he has not had much success. He may simply write back, "I don't think it is maladministration, and unless you can say in writing that you definitely think it is, nothing more can be done about it." This is hypothetical.
All I want to do is make clear that all that is required is that the person aggrieved should set out his grievance in his own way in writing and sign it, that the Member of Parliament should decide that it is a matter that should go to the Parliamentary Commissioner, and it is up to the Parliamentary Commissioner to decide what to do. That is what I 654 have in mind, and I should have thought that that is what the Government would desire. However, as the noble and learned Lord the Lord Chancellor has given an undertaking to look into the matter, I hope that on reflection he may perhaps be able to come forward at a later stage with some wording that will meet the point. In view of that, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.7 p.m.
§ LORD REDMAYNE
moved, in subsection (1)(b), to leave out "and" and insert "or". The noble Lord said: I beg to move Amendment No. 5, which is a paving Amendment to my Amendment No. 6, which I shall discuss now, if that is satisfactory to your Lordships. Amendment No. 7, which follows, is not connected, though it may appear to be so, and I prefer to move that briefly later. I would also say that the arguments I have to put in respect of Amendment No. 6 are not repetitive of the previous debate on the question of whether or not your Lordships should have access to the Parliamentary Commissioner.
I was listening to that debate very carefully, because, frankly, if the aspect covered by my Amendment had been brought into that debate I should then have spoken on that question. But all that debate was concerned with was the relationship of the elector with his elected Member of Parliament, and I must say that I thought that those who argued that your Lordships should have access to the Parliamentary Commissioner won the day in debate, although they failed in the Lobby; and it was very noticeable that all the opponents of the Amendment expressed themselves as being remarkably half-hearted in their arguments. However, there is, of course, apart from the elector, a variety of persons and bodies who are not electors covered by this Bill; and I believe, and I want to argue, that there is a very strong case for giving them the option of addressing their complaints to the Parliamentary Commissioner through your Lordships' House.
Clause 6 of the Bill says that complaints may be made by any body of persons, whether incorporated or not, and I will deal with that first. I am sure it is fair to say that there are few such bodies, whether incorporated or not, 655 which are not represented in some form or another by the membership of your Lordships' House. I think it would be invidious to quote examples. But if one studies the Order Paper on almost every sitting day, or the list of speakers in every debate, one sees at once how close are the links between your Lordships individually and almost every public body or association or council, board or federation, or, of course, company, whether industrial or commercial. I believe from my experience, such as it is, that those links are much more close, and cover a much wider field of work and enterprise, here in your Lordships' House than they do in another place. Therefore it seems to me wholly common sense that there should be provided for those bodies, whether incorporated or not, in case of need, access to the Parliamentary Commissioner through your Lordships, by reason of your connection with such bodies, having taken any other Parliamentary action open to you.
My second case concerns those individuals who are not electors and who are equally covered in the Bill. In the Committee stage in another place, the Financial Secretary to the Treasury was at some pains to explain the provisions of the Bill as he saw them in respect of residents or non-residents of the United Kingdom, which is the relevant point. I will not quote what he said, of course, but he cited three cases. He said, first of all, the Bill could apply to a person resident in the United Kingdom at the time of making the complaint. That is obvious, and the probabilities are that such a person will be on the electoral roll, though there could be circumstances in which he was not. Secondly, the Bill would apply to a person not resident in the United Kingdom if the complaint referred to something that happened when he was temporarily in this country. I will run the risk of one short quotation here: the Financial Secretary to the Treasury said that it could apply "even to a day tripper". Obviously, a day tripper would not be on the electoral roll. Thirdly, he said that the Bill could apply to a person, whether or not he has ever set foot in this country, provided that the complaint arose in respect of some right or obligation accruing or arising in the United Kingdom.
656 The person in the first case is almost certainly on the electoral roll, and I give the point (indeed, it has already been decided by your Lordships) that electors should apply to their elected Member of Parliament. That is fair enough. But the second and third cases almost certainly relate to persons who are not on the electoral roll, and I believe that there are strong reasons for giving those persons the option of bringing their complaint to a Member of your Lordships' House. Such people, of course, have no right of direct access to the Parliamentary Commissioner, for that is completely ruled out; and they might well be in some doubt as to the Member of Parliament to whom they should address themselves, seeing that they have no territorial tie in this country. They could address themselves to the Member of Parliament in whose constituency the cause of the complaint arose, but it might not necessarily be welcome to that Member of Parliament. Indeed, he might be involved in the complaint in another respect and might therefore be unwilling to take it up.
The case might go to some other well-known Member of Parliament, but the disadvantages of Members of Parliament setting themselves up as what has been called "agents for the Parliamentary Commissioner" have already been clearly stated, both here and elsewhere, and it would clearly not be desirable that a complainant working from abroad, should say, "Oh well, we know Mr. X; he is always very active; let us try it on him". This is a thoroughly bad way to approach the use of the Parliamentary Commissioner.
Or it may happen that the complainant will write either to the Prime Minister or to another Minister direct, in his official capacity, and not as a Member of Parliament. I believe that in fact the case will then tend to be dealt with, although with every good will, in a somewhat perfunctory way. Finally—and in my view this is worst of all—the complaint might go to a Party headquarters for onward transmission to a selected Member.
There is no question at all that these categories of people who have been described in the Committee stage in another place by the Financial Secretary to the Treasury will find themselves in some difficulty in trying to decide what is the 657 proper channel for raising their complaint. On the other hand, in your Lordships' House there are noble Lords who are known to have served in every country of the world; or equally, as I have said in respect of the other half of my case, who are known to have special interests and therefore to be peculiarly in a position to deal, as impartial witnesses, with a complaint relating to those interests or to those countries.
I believe it is thoroughly sensible that in such cases the non-elector should have the option of forwarding his complaint to your Lordships, and I do not believe that this would be an arduous duty. We have been told about the figure of 1 per cent. of all complaints in respect of the electorate, but these complaints would be far fewer. At the same time, I think it is sensible that this option should be open. I do not propose to press this Amendment at this stage, but I believe it to be sensible and reasonable, and I ask the Government to consider it before we reach the next stage of the Bill. I beg to move.
Page 3, line 29, leave out ("and") and insert ("or").—(Lord Redmayne.)
§ 5.16 p.m.
§ LORD SILKIN
The noble Lord has made a gallant attempt to distinguish his Amendment from the one which has just been defeated, but I can see no difference in principle. His Amendment again seeks to enable Members of this House to make representations to the Parliamentary Commissioner, but the distinction he makes is that, somehow, the Amendment that we have just defeated relates to people on the electoral roll; and he says that there are people who are not on the electoral roll, or that there may be companies, who obviously are not on it, and they ought to be treated differently. But there is nothing in the Bill which relates to people on the electoral roll. The Bill relates to "any person", and "any person" may be a company or a body, and any of those people can normally go to their Member of Parliament or to some other Member of Parliament if they so wish.
§ LORD REDMAYNE
If the noble Lord will allow me, may I ask him who is their Member of Parliament if they are not on the electoral roll?
§ LORD SILKIN
Yes, surely. In any case, is that a material point? I dislike referring to my own experience, but I did have many years' experience of advising people in my constituency. I never once asked them if they were on the electoral roll; I never knew whether they were or not. I was prepared to deal with their problems simply because they came to me and they lived in my constituency, and I imagine that that will be the position under this Bill. A Member of Parliament does not normally look up the name and address of a person who comes to him to see whether he is a voter; nor, if he is not a voter, does he decline to act for him. I think this is a matter which, rightly or wrongly, we have already settled. As the noble Lord said, it may well be that the balance of argument was in favour of the minority, but we have already settled this question, and I cannot see that the noble Lord has raised a different issue.
§ LORD REDMAYNE
Before the noble Lord resumes his seat, may I ask, since he was so gallantly defending his Front Bench, whether he will deal with the point about people who are not normally resident in this country? Nothing he has said could apply to them.
§ LORD SILKIN
I personally have never had the experience of people not resident in this country coming to see me, but if anyone had written and there was a grievance one would hope to deal with it.
I think Lord Silkin's speech has greatly strengthened the case for my noble friend's Amendment, because all the time he was speaking he was speaking of the parochial complaints, largely coming from people living in his constituency or on his electoral roll, and he was possibly ignoring that vast body of Britons living overseas, many of whom draw pensions from one source or another in this country, on Her Majesty's Government's vote, and who are extremely liable, at all events in their own opinion, to find themselves being ill-treated. I am the last person in the world 659 to welcome a large postbag asking me to get in touch with Sir Edmund Compton, because I should wish to have a secretarial allowance and all sorts of things if I had to do that. But in this particular instance, where these overseas Britons are concerned—and there are a great many of them in Ireland, Canada, Rhodesia and everywhere else—I think we should be willing to put ourselves out a little, to try to serve their interests.
§ LORD AUCKLAND
I have listened with great interest throughout these proceedings and I have a good deal of sympathy with the principle of my noble friend's Amendment, but I cannot see it working out in practice. How many of your Lordships are really qualified to handle the kind of very difficult complaints which may reach us from the people whom he seeks to help? I am not entirely in agreement with those who suggest that the Member for the constituency concerned can always take these cases up. He may be very busy. He may be ill. The matter may be very urgent. Much as I am against the setting up of more Select Committees, this may be an instance where a Joint Select Committee of both Houses of Parliament could be set up, if necessary, once the Bill has been in operation for a time. If these difficulties arise, this could be set up to meet the problems which this Amendment seeks to cover.
§ LORD MOYNE
I was going to give an additional example. I have often had to deal with cases of Royal Irish Constabulary widows' pensions. I have been able to take them up with the Home Office and there has never been a shadow of anything to go to an Ombudsman. But one can imagine that there could be a case of that kind where injustice might arise. It might be much better handled by the Ombudsman than by myself. I can also think of a very distinguished retired Indian judge who is a Member of this House and who might wish to bring up cases from India. I simply wished to adduce those two examples.
§ 5.24 p.m.
§ LORD SHACKLETON
I hoped we should have an Irish example from the 660 noble Lord, and that was why I encouraged him to speak. Although we have common citizenship, on this particular point the case of a member of the Royal Irish Constabulary who was resident in Ireland would not, I think, be one on which the noble Lord if he had a right of access to the Ombudsman, or indeed any other Member of Parliament, could go to the Ombudsman. If he was resident in this country it would be a different matter.
§ LORD REDMAYNE
Surely I am right in saying—and I have referred to what has been said in another place on this matter—that if in fact a grievance arises in this country it does not matter whether the complainant is resident or not. This has been clearly stated in another place.
§ LORD SHACKLETON
I take the noble Lord's point. It depends entirely on the circumstances. There are cases of a local kind which could arise, some of which could apply in Northern Ireland and apply only to the Northern Ireland Provincial Government—cases concerning former members of the Royal Irish Constabulary there—but which would not be of a kind involving national Government. I do not want to be drawn into what I admit is rather dangerous territory, beyond saying that there is a certain charm about Lord Redmayne's Amendment. Here is an example of the under-privileged going to the under-privileged, the great vote less going also to the great vote less, and this is an attraction—a great league of disfranchised people co-operating together while the more privileged ones go to the Members of another place.
As the noble Lord, Lord Silkin, said, this Amendment fails on the same grounds as the previous Amendment which your Lordships defeated very decisively, and, as I hope, not for any reason other than that you believed it was right to defeat it. I say this quite seriously to the noble Lord, Lord Redmayne. What is there that so peculiarly fits Members of your Lordships' House to deal with cases of the disfranchised, those without votes, that is not equally shared by Members of the House of Commons? I agree very much with the noble Lord, Lord Silkin. I acknowledge Lord Redmayne's great experience, as Conservative Chief Whip 661 and Member of another place for a long time, but I do not believe there is any Member of either House who has any idea whether somebody is initially on the register. If the Member finds that the person lives in another constituency there may be circumstances in which he may urge him to go to that Member of Parliament. But if the person has no vote at all but is resident—he is perhaps a foreigner living in this country—the Member will take that case regardless.
It seems to me that the important point is availability. There is nothing to stop a person from coming to one of your Lordships. I have often taken up cases myself of foreigners who have come to me, even since I have been a Member of the Government, and one refers it to the appropriate Government Department, the Home Office or whatever it may be, and they deal with it. At that point, if one gets nowhere with it I think the obvious thing is for your Lordships to refer the matter to a Member of another place, and I am sure there will be countless Members of another place who would deal with such a case.
The other part of the argument relates to a corporate body, and here again I can only say, speaking, as one must, from one's own experience, that I have from time to time—I am sure many other Members of another place have done so also—taken up cases of corporate bodies. The point is, do we want to extend this burden, or whatever phrase one likes to call it, to Members of your Lordships' House? A decisive decision has been taken against that on general grounds, and I really see no distinctive argument for establishing a special arrangement which would be exceptional and would present great difficulties. To start with, how is the Peer to know whether somebody is on the Parliamentary register or not?—because that would be a requirement if we passed the Amendment: that he would have to settle to his satisfaction that the individual was not on the Parliamentary register; or, alternatively, the Parliamentary Commissioner would have to do so. Sympathetic though I am to the ingenious arguing of the noble Lord, I find it difficult to believe that someone who is not on the register, or a corporate body which had a grievance, had suffered an injustice from possible maladministra- 662 tion, would not be able to attract the attention of a Member of another place who would take it up. Therefore, I hope the noble Lord, as I think he indicated was his wish, will not press this Amendment to a Division.
§ LORD REDMAYNE
Of course I will not press it to a Division. The noble Lord has given a good Governmental answer for a Government who are determined not to change their mind on this subject, however cogent the arguments. I say that despite what the noble Lord, Lord Silkin, may say. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.31 p.m.
LORD REDMAYNE rose to move to leave out paragraph (b) and to insert—
() the complaint is referred to a select committee of the House of Commons, with the consent of the person who made it, by a Member of either House of Parliament with a request that it shall be investigated by the Commissioner; and the select committee having satisfied themselves that other means for the redress of such complaint have failed and that there is a prima facie case for the investigation of it, have accordingly referred it to the Commissioner.
THE DEPUTY CHAIRMAN OF COMMITTEES
May I say that if Amendment No. 7 is accepted I shall not be able to call Amendment No. 8.
§ LORD REDMAYNE
In my most optimistic moment I really did not imagine that it would be accepted, but I am happy to have this shaft of hope from the Chair.
I say again that I am sorry that these two Amendments fall together, and I shall try to move this one as briefly as I can. Admittedly, in rather amateur words, it comes back again to what I believe to be the proper solution to fears which have been expressed, both here and elsewhere, as to the practicability of the Bill as drafted, and as explained by Ministers. May I say at once that the fact that these Amendments also refer to a Member of either House of Parliament is of no consequence at all. It crept in between myself and the printers, and it is not relevant. But, equally, I know well that the short speech that I want to make suffers from the disability that it seeks to tell the other place how to conduct its business, if in fact this 663 business is to be entirely confined to the other place. Nevertheless, the Bill comes to us, and therefore I should imagine that an opinion expressed may be of some possible value.
We are told that there is to be a Select Committee, which of course will deal with reports from the Parliamentary Commissioner. We are also told that it will work out conventions, by which it hopes Members will be bound, in respect of who shall accept applications and the reasons for which they are referred to the Commissioner. I shall not in detail again repeat what I said on Second Reading as to the reasons why I believe that the conventions relating to this matter are far less likely to be successful than those which already rule in less difficult fields of relationship between Members of Parliament and constituencies; nor will I argue again in detail the embarrassments which I see arising for individual Members in relation to their own constituents, whether or not these conventions are successful.
I will simply say that I think that Members of Parliament would be wiser to divest themselves, so far as possible, of the invidious responsibility for deciding whether or not cases are qualified to be heard by the Commissioner, those cases being marginal cases, because I believe that in regard to every marginal case Members will run the risk either way of being wrong in the eyes of their constituents. If they turn the case down, of course they will be wrong; and if they submit the case to the Parliamentary Commissioner and he turns it down, then they will still be wrong. Any further Parliamentary action will be useless because the Commissioner has had the case and has rejected it on the ground of its inadmissibility. While no further Parliamentary action will be possible, the constituent's grievance against authority will still rankle, indeed it may well be inflamed, because this great Ombudsman, who has been so much written-up, has failed to resolve the trouble.
If, on the other hand, as is envisaged as best I can in this Amendment, the other place adopts the procedure of using the Select Committee as a sieve for applications, there would, I think, be a double gain. Of course, all good cases would go straight through the Committee to the 664 Parliamentary Commissioner. The clerk to the Committee would advise, and the case would go forward. But in marginal cases the Member of Parliament would say to his constituent—those of us who have been Members know how these interviews go—"I do not think that this case is a runner under the Act; but, being no lawyer, I do not wish to prejudice your case for further Parliamentary action if it proves not to be so. Let me put it before the Select Committee, and if they say, on the advice of their clerk, that it is not admissible, then I will see how else I can help." At least it will not have been turned down flat. That is the way that one would normally deal with one's constituents. I believe that, on the whole, it will lead to a much stronger position for the elected Member.
I come now to the second gain. I will not labour this point because it necessitates saying something which is slightly critical of elected Members of Parliament, or some of them. But one must accept that some Members of Parliament are not so assiduous as others, and I believe that, in the nature of things, if the Select Committee was the sieve, Members of Parliament would be more reluctant to submit trifling cases, or even marginal cases which they ought to resolve for themselves, to a Select Committee of their fellow-Members than direct to the Parliamentary Commissioner, because, after all, the Parliamentary Commissioner is, in a sense, simply another Government Department.
I would say this to your Lordships, and I hope it will strike a chord in the hearts of some of those who have been Members of Parliament. I personally am ashamed to admit how often I have written letters to Ministers on obviously bad cases, just to placate an awkward constituent and to shift the blame for an unacceptable reply. I see one noble Lord nodding his head—
§ LORD CHAMPION
In order to satisfy the noble Lord, having nodded my head, I am bound to say, "Haven't we all!"
§ LORD REDMAYNE
That comforts me even more.
Strange as it may seem, I personally have great good will in this matter. If this Parliamentary Commissioner has to be set up in a particular way, and those 665 of us who criticise cannot get our own way in everything about it, I am most anxious that, in the end, the thing should be successful, and that the techniques should work well. I believe that the Select Committee procedure, for the reasons that I have given, would in fact be a check on some of the abuses which I see arising. Further, I believe that the Parliamentary Commissioner, if unprotected by these devices, will find his work almost unmanageable. I do not really expect to get any substantial reply from the noble Lord, but I think that there is something in what I have said. I hope that the proposition will not be dismissed out of hand, and that perhaps before the Report Stage those in another place, who will be more immediately concerned with the technical working of the Bill, may look at what I have said and that possibly out of that there might arise some action by the Government.
As I say, this Amendment is not put forward in any unconstructive way. I believe that it is vital that the truth about how this is likely to work is understood before the whole scheme gets in a terrible tangle. I beg to move.
Page 3, line 30, leave out paragraph (b) and insert the new paragraph.—(Lord Redmayne.)
§ 5.38 p.m.
§ THE LORD CHANCELLOR
I appreciate, understand and respect the attitude to this Bill of the noble Lord, Lord Redmayne. The last Conservative Government made it quite plain that they took that view. They said that the Parliamentary Questions and an occasional Adjournment debate gave the Members of another place quite sufficient control of the Executive; that there was no need for a Parliamentary Commissioner at all; that it would upset the Civil Service and destroy ministerial responsibility; and they were altogether against it. The noble Lord, Lord Redmayne, on the Second Reading of this Bill, made his attitude plain; he said that it was a bad Bill and would not do any good. As he also made plain, the object of the suggestion that all the claims should be put through the Select Committee was to reduce as much as possible what the Parliamentary Commissioner can do. The Amendment was moved from that point of view, just as we have had Amendments from the Liberal Benches to extend the powers and 666 sphere of activity of the Parliamentary Commissioner as much as possible.
The Government do not share either view. The difficulties of a Select Committee would be enormous. I do not know whether the noble Lord agrees with the estimate which was given in another place, and seemed to be accepted there, that the number of constituency matters dealt with by Members of that place in the course of a year was somewhere between 250,000 and 300,000. Under this Amendment apparently, if anybody wants these matters to go to the Parliamentary Commissioner, they will all descend on the Select Committee. If, as I understand, the words "either House of Parliament" in the Amendment are to be taken as a mistake, then the whole Amendment is simply directed at telling the other House what it is to do, how it is to run its own place, whether its own Members are to do something, or whether a Select Committee is to do something. I do not know how a Select Committee could conceivably cope with the vast numbers there would be. Moreover, of course—and this may well have been in the noble Lord's mind—it is usual for a majority of a Select Committee to be supporters of the Government. If the Government do not think that, so far as it can be avoided, it is a good idea that the conduct of Ministers should be inquired into by the Parliamentary Commissioner, no doubt the majority on the Committee could take care of that.
I would remind the noble Lord that the quorum in a Select Committee is only five. This seeks to give an enormous power to what may be a very few people to decide exactly what the Parliamentary Commissioner is to be allowed to look at and what he is not. I should have thought that, on the sheer numbers involved, this would be an impossible task for any Select Committee to accomplish. When one bears in mind the powers which a majority of that Committee would have to stop the conduct of Ministers being inquired into, and when one further bears in mind that this is an Amendment simply telling the other place what it is to do in that other place, I am afraid that on all those grounds I cannot accept the Amendment, or hold out any hope that the Government would at any time be prepared to leave the whole matter to a Select Committee so that all 667 complaints should be channelled through it. In these circumstances, I hope that the noble Lord will think it right to withdraw the Amendment.
§ LORD REDMAYNE
I must say that I find the noble and learned Lord's reply somewhat ungenerous. A sinner who repents after Second Reading should surely be dealt with a little more gently; although I have not repented all that much. I do not understand the point that it is not right that this House should, in the words of the noble and learned Lord, seek to tell the other place what it should do, when we have in front of us a Bill which is designed by the Government simply for that. Why does the Bill come here at all?
The final point I will make before withdrawing the Amendment is this. I think the noble and learned Lord possibly lacks experience of how the Select Committee system works in the other place. Although there is admittedly a nominal Government majority, Select Committees of this quality perform a most splendid service for the other place with remarkably little bias of any sort. But I realise that I am pleading a hopeless cause, and therefore I will not waste your Lordships' time. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.44 p.m.
§ LORD SILKIN
moved to add to subsection (1):(c) in any other case where the Commissioner is of opinion that injustice may have been sustained by any person in consequence of such maladministration:Provided that the Commissioner will not carry out any such investigation except at the written request of the person who claims to have sustained injustice and where no Member of the House of Commons has made a written complaint."
§ The noble Lord said: This Amendment would give the Commissioner an inherent right to initiate an inquiry if he thought an injustice had been done. This seems to me to be almost an elementary right to confer upon a person who is entrusted with this task, so that he may himself, if he thinks that an injustice is done, initiate an inquiry. But there are two conditions which are set out in the Amendment. The first is that he may not do so unless there is a written request 668 by the person who is making the complaint; and the second that no Member of Parliament can be found who is prepared to sponsor it. It may be said that any complaint worth making would surely find its way to a Member of Parliament. That has been the burden of the argument right through in dealing with the case that a Member of the House of Lords has no right to forward a complaint. That may well be so. But there may be very special circumstances in which a matter comes to the notice of the Commissioner himself, without the intervention of a Member of Parliament.
§ The Commissioner may have read something in the Press, or a person may even have made a personal approach to him, and he may think that the case is so bad prima facie as to justify an inquiry. In such a case he would not ignore the matter but would refer the case to the Member of Parliament. But if it were found that the Member of Parliament was not prepared to undertake it—and there may be a residuary number of cases of that kind—it would surely be right that the Commissioner should himself have the right to initiate an inquiry. I do not think this is a very world-shattering Amendment, but I feel that there should be this residual opportunity on the part of the Commissioner. I beg to move.
Page 3, line 33, at end insert the said paragraph.—(Lord silkin.)
§ LORD ALPORT
I should like to support the noble Lord, Lord Silkin, in this Amendment. I hope I am not under any misunderstanding, but perhaps I can develop my argument in this way. As I understand it, according to the Bill which is before us the only way in which a member of the public can approach, and obtain redress through, the Parliamentary Commissioner is through a Member of Parliament: either the Member for his own constituency or the Member for another constituency. It has been a golden rule, to my knowledge, in the House of Commons that a Member does not poach upon the preserves of another Member. It does not matter whether the neighbours are Labour and Conservative, if a Labour supporter in the Conservative's constituency wishes to approach his Member of Parliament and prefers to do so through the Labour neighbour, the Labour neighbour on the whole will 669 refuse to accept the approach of that Conservative Member's constituent because he believes that that would be wrong. This has been the custom of the other place for a very long time. It is essential to the relationship of Members of Parliament within the House that there should be no poaching as between constituencies.
There are, however, occasions when, for various reasons, a constituent in a particular constituency will not approach authority through the Member of Parliament who represents that constituency. It may well be that they have strong political differences. For instance, it may be that a Labour supporter in a Conservative constituency believes—wrongly, I feel—that he will not in all cases get sympathy and attention from the Member of Parliament. The same applies the other way round. It may be quite wrong that constituents feel this way, but they do; and there may be other, much more deep-seated occasions than the ones I have mentioned. I should have thought, therefore, that there ought to be a provision in this Bill which would enable someone who felt aggrieved, and who did not wish to approach the Parliamentary Commissioner through the Member of Parliament, to do so in accordance with the provisions which I understand are set out in Amendment No. 9. On those grounds, I very much hope that if the Government feel as strongly as they say they do about the importance of the efficacy of the work of the Parliamentary Commissioner—
§ LORD SILKIN
May I make one slight correction? This would not apply if a particular constituent felt that he did not want to approach his Member of Parliament because he did not feel that he could get justice from him. It would apply only if the Member of Parliament actually refused to act.
§ LORD ALPORT
Or, I presume, if he found that he was unable to get the injustice put right through any other means open to him. Perhaps I have taken the noble Lord's Amendment further than he intended, so I may not be entirely in order in following this point. But it is a point which I think should be considered by the Government, and perhaps they would take it up when we come to consider this Bill on the Third Reading.
§ 5.52 p.m.
§ THE LORD CHANCELLOR
The Amendment as drafted does not, of course, refer to Members of the House of Commons who have refused to take up a complaint. What it says is:where no Member of the House of Commons has made a written complaint.So it is simply a case in which no Member of the House of Commons has complained, but where the individual may himself have written direct to the Parliamentary Commissioner and the Commissioner has decided to take up the case. To accept this proposal would, of course, mean a fundamental departure from the basis of the Bill. Obviously, once members of the public are entitled to write direct to the Parliamentary Commissioner, there will be no point in their writing to their Member of Parliament. The tendency will be to do it direct.
When we considered all the schemes of this kind which had been tried, and fully considered the matter, we realised that we had to make a decision between two things. It was no good being muddleheaded about this, and trying to find some mixture between the two; there were two entirely different things, for each of which there was something to be said. The first was a public institution, and the second was a Parliamentary institution. A public institution, such as the Scandinavian countries have and to which any member of the public could go, would have nothing directly to do with Parliament and would not necessarily be limited to the Central Government, because this public institution might perform services in the field of local government, or of the nationalised industries, or of all sorts of local boards. This would have no particular connection with Members of Parliament. No doubt the Commissioner would be appointed by an Act of Parliament, and he could make an annual report; but apart from that he would have no connection with Parliament; he would be a public institution. This is what he is in the Scandinavian countries. There, except for one question a week, they do not have Parliamentary Questions. They do not have what we understand as ministerial responsibility. Theirs is an entirely different constitutional system.
The other alternative was to adapt that machine to our kind of Constitution, and 671 have a Parliamentary institution to which members of the public would go, through Members of Parliament, and which, being a Parliamentary institution, would be limited to the Central Government. We cannot really mix these two kinds of institutions. If we decided to have a public institution, it would of course be monstrous to say that the citizen could approach it only through a Member of Parliament. Obviously, he must have the right to approach it direct. If, on the other hand, we are going to have a Parliamentary institution, a Parliamentary Commissioner, then, of course, once members of the public are allowed to approach him direct as if he were a public institution, that is what they will do. As his powers are so very much greater than the powers of Members of Parliament, the present practice which has gone on for centuries, of treating Members of the House of Commons as the repository of the grievances of the people, will cease.
The decision taken by the Government followed, of course, the recommendation in the Whyatt Report. Perhaps I may remind your Lordships of what that Report said:As already indicated, one of the most firmly established traditional channels for complaint against the action of the Executive is through Parliament, and individual Members do a very great deal of work in relation to complaints received from their constituents. We have made clear that we feel that the methods of pursuing complaints open to Members of Parliament are not entirely satisfactory. Most are dealt with, at least initially, by correspondence with the Department concerned. This is necessarily a one-sided procedure and Members have no machinery for more intimate and detailed investigation ready to hand. It seems to us very important that any additional procedure should not disturb the basic position of Parliament as a channel for complaint against the Executive, and should not even appear to interfere with the relations between individual Members and their constituents We conceive of the proposed new machinery, and it is implicit in the title of 'Parliamentary Commissioner', that it will supplement and strengthen existing provisions rather than undermine them.Then the Report goes on to say that the Committee would expect Members first of all to write to the Minister in the usual way, and then, if they did not get satisfaction, and thought it was a case for the Commissioner, they would go to the Commissioner. That is why I think there would be great difficulty in the Government's accepting any Amendment which 672 enabled members of the public to treat the Parliamentary Commissioner as if he were a public institution.
The practice of writing to Members of Parliament is a valuable side of life to the other place, because it enables Members there to know, literally from day to day, what are the grievances and where the shoe is pinching. But, of course, with the much greater powers of the Parliamentary Commissioner, if people once went direct to him there would be no particular point in their going to their Member of Parliament. It is on those grounds, and because this is a Parliamentary Commissioner and not a public institution, that I cannot advise the Committee to accept the Amendment.
With reference to the point of the noble Lord, Lord Alport, no difficulty at all is felt about this in another place. The convention, as I understand it, goes no further than this: that a Member does not ordinarily take up a complaint from another constituency without telling the Member of Parliament for that constituency. Of course, he may be the Minister against whom the complaint is being made. There are cases in which nobody would object to the citizen's going to somebody else. That is why we have said, not "his Member of Parliament", but "a Member of Parliament". So, with respect, I should not have thought that that difficulty would arise. With that explanation of our process of thought, and of how we have arrived at a Parliamentary Commissioner who essentially is somebody to be approached through Members of Parliament, I very much hope that my noble friend will think it right to withdraw his Amendment.
§ LORD DRUMALBYN
May I just say a word about this Amendment? I wonder whether the noble and learned Lord the Lord Chancellor had made up his mind about how to answer the noble Lord's Amendment before the noble Lord explained what he intended it to do. I wonder if he would not have taken a different attitude to the Amendment, if it had in terms said:where a Member of the House of Commons has declined to make a written complaint.From listening to the noble and learned Lord, I had the impression that he had made up his mind on the basis of the wording of the Amendment, rather than on what the noble Lord, Lord Silkin said.
673 The reason I rise is this. If a constituent's complaint is passed to his Member of Parliament and the Member of Parliament declines to handle it, then what happens? As the Bill now stands, the constituent will take the complaint to another Member of Parliament and try to get him to handle it, and at any given moment there will be a great number of complaints going around the country, with constituents trying to get Members of Parliament other than their own to take up their complaints. Side by side with that, any Member of Parliament will know quite clearly that, if he turns down a complaint, that is just what is going to happen; that is to say, the constituent will go to some other Member of Parliament. He will also know that the fact that he has turned the complaint down and that somebody else has taken it up will react against him. What, therefore, will he do? He will take up every single complaint, and will pass every single complaint to the Ombudsman. Is that not almost bound to happen?
I think there would be a great deal to be said for the noble Lord's Amendment, if it were redrafted in the way in which he suggested—in other words, that a constituent should be able to pass a complaint direct to the Ombudsman only if he had already had that complaint turned down by a Member of Parliament. Obviously, the Ombudsman would get more complaints that way. On the other hand, I am not at all sure that if certain Members of Parliament turned down complaints other Members of Parliament would not take up most of them. So it seems to me that the numbers of complaints going to the Ombudsman wouldn't be greatly increased by the Amendment. Moreover, where the complaint was obviously a frivolous one the Ombudsman would be able to deal with it right away, without very much inquiry at all. So it seems to me that there is quite a lot in this Amendment, and I wonder whether the noble and learned Lord would look at it again from that point of view.
§ THE LORD CHANCELLOR
I will always look again at anything, but, of course, as my noble friend and the noble Lord realise, there is nothing in the Amendment to limit it to cases in which somebody has refused to forward it. I now gather the proposal is that if any 674 one Member of Parliament—that is, any one of the 630—has refused to forward a complaint to the Ombudsman, then the complainant should be able to write direct. There is a fairly large lunatic fringe, as we all know, and we are all relying on Members of Parliament to act as some sort of a sieve to save the Parliamentary Commissioner from those whose complaints are obviously completely wild and do not come under the Bill at all. But, of course, if all they have to do is to get one Member of Parliament to refuse, they will all be writing directly to the Commissioner. There are enormous numbers involved, and I really do not think that this burden ought to be put on to him.
I am not clear why every member of the public should be entitled to treat the Parliamentary Commissioner as if he were a public institution; that is to say, why every member of the public should be entitled to write to him direct, provided only that he can find one Member of the House of Commons to say, No. This would really be opening the floodgates. However, I am certainly prepared to consider the point further, and perhaps my noble friend would also consider what has been said. There will be time before the Third Reading for both of us to consider it.
§ LORD SILKIN
My noble and learned friend has certainly convinced me that the wording of my Amendment is defective. I accept that. I almost suspected it in advance, because I have never known anyone capable of drafting a difficult Amendment which could not be contested merely on the wording. But on the merits of the Amendment I do not think I am convinced. I am concerned with the person who has a legitimate complaint which the Commissioner really believes justifies an inquiry, but who cannot find any Member of Parliament to sponsor it. There may not be many such cases, but I submit that if the Member of Parliament who is first approached refuses to take the complaint, another Member of Parliament would almost automatically be bound to say, "Your own Member of Parliament has not taken it up; I will not do so either". And there is no reason why he should. In that case, the person who has suffered an injustice has no remedy. I should have thought that one should look at 675 this matter from the point of view of the desire to remedy an injustice caused by maladministration; and if a person has no remedy under the machinery of the Bill, by going to a Member of Parliament, it seems to me only axiomatic that the Commissioner should himself be in a position to take up the matter.
I am going to withdraw the Amendment now, on the ground that it is defective. I shall certainly think again; but I hope that my noble and learned friend also will think again and will accept from me that there is no intention of doing anything which goes against the principle of the Bill. I do not think it goes against the principle of the Bill that, in the last resort, there should be a means of redressing a grievance through the Commissioner himself. It is in the New Zealand Act. There, the Commissioner has an inherent right to take up a grievance. I shall therefore withdraw my Amendment, but I hope that I may come back to it later.
§ Amendment, by leave, withdrawn.
§ 6.7 p.m.
§ LORD WADE
moved to add to subsection (4):save that the Commissioner, subject always to subsection (2) of this section, may review the exercise of any discretion vested in any department or authority listed in Schedule 2 to this Act if satisfied that no reasonable person in possession of all the relevant facts and having regard to any then existing and properly formulated policy of the department or authority would have exercised such discretion in the manner in which it was exercised.
The noble Lord said: I beg to move Amendment No. 10, which stands in the names of my noble friend Lord Reay and myself. I have already mentioned that, unfortunately, my noble friend Lord Reay is unwell, and he is therefore unable to move this Amendment. The wording of the Amendment is intended to follow that of Clause 5, subsection (4), of the Bill. Perhaps it would be helpful if I were to read subsection (4), as it has given rise to a good deal of controversy:
Nothing in this section shall be construed as authorising or requiring the Commissioner to review by way of appeal any decision taken by a government department or other authority in the exercise of a discretion vested in that department or authority.
There has been a good deal of confusion over the question whether the Parliamentary Commissioner can investi-
gate and review decisions taken in the exercise of a discretion. This was discussed quite fully on Second Reading, and I do not wish to take up a great deal of time by going over the ground again. However, I think it is fair to say that there were differences of view as to the interpretation of the whole of this clause, and that some concern was felt as to the effect of bringing in the words
…to review by way of appeal any decision taken by government department or other authority in the exercise of a discretion…".
I would prefer to see subsection (4) taken out altogether. I should be much happier if it were not in the Bill at all; but the Amendment which I am proposing is intended as a clarification. It suggests, in effect, that the Commissioner should be entitled to review a matter
if satisfied that no reasonable person in possession of all the relevant facts and having regard to any then existing and properly formulated policy of the department or authority would have exercised such discretion in the manner in which it was exercised".
I am not sure whether that goes far enough, but at any rate it modifies the earlier wording.
§ As I have said, there has been this misunderstanding as to exactly the effect of bringing in these words about acts in the exercise of a discretion. If I were relying solely upon the speeches of the noble and learned Lord the Lord Chancellor and the noble Lord, Lord Shackleton, on Second Reading, I think I might feel reasonably happy; but, after all, when an Act comes to be interpreted the statements made by a Minister are of no legal effect. Therefore, one must try to make the position as clear as possible.
I am anxious that the Commissioner should be free to investigate where he thinks fit, and I am not sure that that is quite clear at the moment. On the Second Reading debate the noble Lord, Lord Shackleton, in reply to a point made by the noble Baroness, Lady Burton of Coventry, said:
If there is improper discretion, then this can be challenged.
Later, commenting on an intervention from me he said:
…if it has been improperly exercised it implies maladministration. I think the answer, therefore, is that if there has been an improper
exercise of discretion, then there is a case on which the Parliamentary Commissioner will be able to pass judgment."—[OFFICIAL REPORT, col. 1415; 8/2/67.]
I am not sure whether that is clear from the reading of the Bill. I wish those words had been written into the Bill.
§ Furthermore, there may be cases where the actual procedure has been properly followed and the rules properly observed but too strict an interpretation of the rules may have resulted in an inhumane or unjust decision. I should like to know whether in those circumstances the Parliamentary Commissioner could investigate and make a recommendation.
§ I remember a case a good many years ago—it may not be a very good illustration, but I put it forward as an example—where a lady who was blind and who worked at a telephone exchange relied entirely on the aid of a trained dog who helped to guide her to and from her place of work and her home. While she was working at the telephone exchange the dog sat quietly beside her. She asked whether she could have some allowance for tax purposes for the expense of keeping her dog. She was told: "Certainly not! You cannot claim for that dog; it is used only for the purpose of taking you to and from your place of work. It is not necessary actually for the purpose of carrying out your employment." The rule is, of course, that expenses incurred in going to and from a place of business are not allowable. Therefore, in this case there could be no allowance for the upkeep of the dog, although it was absolutely vital to the lady and she could not have carried out any employment at all were it not for the dog. I took up the case on her behalf, and after lengthy correspondence the authorities decided that they would give way in this particular matter, although they may have been stretching the point. I am sure that she would not have obtained that relief had the case not been taken up on her behalf. One sees, therefore that over-strict interpretation may have an inhumane result.
§ I should like to feel that the Parliamentary Commissioner can investigate matters of that kind. I should prefer to see subsection (4) out of the Bill altogether; but if it remains some additional words 678 are required to clarify the position. If the Amendment that I am moving is not adequate—for I know the Government may find some imperfection—then I hope that the noble and learned Lord the Lord Chancellor may be able to give an undertaking that this matter will be looked into. I beg to move.
Page 4, line 14, at end insert ("save that the Commissioner, subject always to subsection (2) of this section, may review the exercise of any discretion vested in any department or authority listed in Schedule 2 to this Act if satisfied that no reasonable person in possession of all the relevant facts and having regard to any then existing and properly formulated policy of the department or authority would have exercised such discretion in the manner in which it was exercised.").—(Lord Wade.)
§ BARONESS ELLIOT OF HARWOOD
I rise to support the Amendment of the noble Lord, Lord Wade. When I spoke on this matter on Second Reading, the noble Lord, Lord Shackleton, implied that my fears were groundless. I think still that they were not groundless and subsequent reading of the papers has confirmed me in that view. As we know, the Government have split this process notionally into two stages—those activities antecedent to the decision of the Minister and the decision itself. This is perhaps a shorthand way of describing an intricate point, but Members are familiar with it by this time. The limits of the Parliamentary Commissioner's powers in this area lie at the heart of the matter. I have reviewed all that has been said on the subject recently, and I am afraid that I am more than ever sure that the fears which I expressed on Second Reading are far from groundless.
On October 18, in another place, Sir Lionel Heald drew attention to the fact that the Parliamentary Commissioner was to be concerned with those episodes where all the authorities have behaved correctly, yet where the result would be, or may be, absurd or unjust. This expressed what I took to be the cardinal purpose of the Parliamentary Commissioner. Yet this is precisely the purpose which has been denied the Commissioner by this Bill. We have had no satisfactory answer from the Government on this. It is sophistry to pretend that the process of administrative decision-making is truly separable into preliminaries and the great act itself. The Executive will remain master and draw its frontiers as it chooses.
679 For this reason, as well as its other severe limitations on the Parliamentary Commissioner's purview, the Bill has, in my opinion, lost a great deal of its effectiveness. As I said on Second Reading, I welcome what remains of the Bill it will be a very useful experiment. But to those of us—and I am one of those who is constantly having individual complaints brought before me—who are closely concerned with individual rights, the Bill as it stands, and in particular this clause, is a huge disappointment. I hope very much, despite what the noble Lord, Lord Shackleton, said to me on Second Reading, that the noble and learned Lord the Lord Chancellor will take up the point raised in this Amendment and look into it again.
§ LORD HARLECH
I find myself in a different position from my noble friend Baroness Elliot of Harwood. I was rather scathing about this paragraph and this clause on Second Reading, although I do not think it was that part of my speech that the noble Lord, Lord Shackleton, referred to as "facetious". In the light of the explanations made on that occasion, and particularly the explanations made by the noble Lord, Lord Shackleton, I find this clause rather less offensive than I did originally.
I think we all appreciate that the Parliamentary Commissioner cannot become a sort of Court of Appeal against every Ministerial decision. This would make government impossible. But also we are anxious—and here I agree with my noble friend—that Departments or Ministers should not avoid investigation simply by declaring that the decision they had taken was one which was in exercise of the discretion vested in them by Act of Parliament or through some other means. I understand that it would not be possible for a Minister or a Department to avoid investigation by making a simple declaration of this kind.
The noble Lord, Lord Shackleton, during the Second Reading debate, said:But while Clause 5, subsection (4), prevents the Parliamentary Commissioner from reviewing a discretionary decision by way of appeal—that is, by way of appeal against a decision where discretion is involved—it does not prevent him from investigating alleged maladministration which may have occurred in the process leading up to the decision. Nor does it prevent him, if he finds that 680 such maladministration occurred, from reporting that it resulted in injustice, in that if it had not occurred and a different discretionary decision had resulted, this injustice might not have taken place."—[OFFICIAL REPORT, 8/2/67; col. 1458.]And we have had the quotation from the noble Lord, Lord Shackleton, in reply to the noble Baroness, Lady Burton of Coventry, in which he said:I think the answer, therefore, is that if there has been an improper exercise of discretion, then there is a case on which the Parliamentary Commissioner will be able to pass judgment."—[OFFICIAL REPORT, 8/2/67; col. 1415.]If that really is the position, and that is what this clause means, and that such an investigation is not ruled out by subsection (4), a good deal of my misgivings about this clause are laid to rest. But in view of the concern still felt by a lot of people, I think that if the paragraph could be rephrased in such a way as to make clear in the Bill what the noble Lord, Lord Shackleton, said during the Second Reading debate, it would, it seems to me, be an improvement to the Bill. Therefore, while I do not know about this particular Amendment and I found the wording of the Amendment which we are to discuss next, Amendment No. 11, rather clearer, I think some improvement to the wording of subsection (4) would set other people's minds at rest, in spite of the fact that, so far as I am concerned, the explanations given on Second Reading have made me less concerned than I was formerly.
§ LORD WILLIS
Before the noble and learned Lord, the Lord Chancellor, replies, I wonder whether I might be permitted to make one small personal word of explanation. On the previous Amendment moved by the noble Lord, Lord Wade, I informed the House that I intended to abstain from voting. This was due to a natural reluctance on my part to vote against my Party and my Government, but I reckoned without the strength of conscience. I sat here for some time but eventually conscience won, and I therefore have to inform your Lordships that I unintentionally misled you and in fact did vote on Lord Wade's Amendment.
§ 6.23 p.m.
§ THE LORD CHANCELLOR
I doubt very much whether there is any real disagreement between us as to what we want. 681 We have first of all to define the area of the Commissioner's activities, and secondly, in that area, to arm him with powers the like of which no one in this country has had before; not only to walk into Government Departments and look at any correspondence, as recommended by the Whyatt Report, but at the civil servant's private minutes to the Minister, which the Whyatt Committee recommended against. Furthermore, we abolish, for the time being, Crown privilege so that he will be able to look at documents which no High Court Judge even is allowed to look at; and we abolish any question of veto by the Minister against investigation, although the Whyatt Committee had recommended such a veto. Then, when he has completed his investigation, if he finds there has been no maladministration of any kind at all, he is not to be a one-man court of appeal from every policy or discretionary decision of a Minister. I believe that is what we all want.
Clause 5(4) has created so much discussion and dissension that I begin to think that it cannot be drafted as we should wish it to be. Its history is rather odd. Although it had been understood throughout, ever since the time of the Whyatt Report, there is nothing actually in the Bill which says that the Commissioner is not to be a one-man court of appeal. So when an Opposition Privy Counsellor pointed this out during the Committee stage in another place, the Government, who, as your Lordships know, are always anxious to accept Opposition Amendments whenever they can, fell over backwards in their usual way and said, "Of course, we must at once do it." On Report stage, feeling rather pleased with themselves and thinking that they would get a pat on the back, they introduced this clause; whereupon everybody fell upon them and said, "You have torn the guts out of the Bill". I feel that as there is this extraordinary difference about how it operates we ought to do something about it.
I have another objection, which I do not think has been mentioned by any other noble Lord. If we were simply saying, "If, having done all the investigation, you find there is no maladministration, you must not interfere on questions of discretion," I should have expected to find this provided for somewhere round Clause 10, because that is 682 the part of the Bill dealing with what is to happen when an investigation is over. But this in Clause 5 and the marginal note to Clause 5 is Matters subject to investigation. Every other part of the clause tells the Commissioner what he can investigate and what he cannot investigate.
Frankly, on reconsideration I am apprehensive that a civil servant, looking at subsection (4), will say, "If this case has anything to do with discretion you cannot investigate at all; because, obviously, this must be intended to stop your investigating it; otherwise why would they put this in a clause the whole of the rest of which is dealing entirely with what you can investigate and what you cannot?" Therefore, while I feel unable to accept this Amendment, or the succeeding Amendment to be proposed by the noble Lord, Lord Airedale, I do propose to reconsider this point. Government spokesmen are always very coy about committing themselves—I do not know why—but I will say that my present intention is (I hope that is all right, "My present intent is", it is true) to move an Amendment on Report stage deleting Clause 5(4) altogether, and then put in, at a later stage of the Bill, an Amendment to the effect that where there is no maladministration, it is not for the Commissioner to judge on the merits, so to speak, a decision which Parliament has left to the Minister's natural discretion. I hope that upon that the noble Lord will be satisfied and will withdraw his Amendment.
§ LORD WADE
I am very much obliged to the noble and learned Lord, the Lord Chancellor. I am sure that this has been a very worthwhile debate. I am extremely pleased to hear of the intention of the Lord Chancellor, and in those circumstances, and in view of that undertaking, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ LORD AIREDALE
had given notice of his intention to move to add to the subsection:but nothing in this subsection shall be construed as limiting the power of the Commissioner to inquire into any matters which a Department or authority have either taken into consideration or failed to take into consideration before exercising a discretion.
§ The noble Lord said: Of course, it would fall to me to be told that my Amendment is unacceptable even before 683 I had had the chance of moving it. May I just say—I said this on Second Reading—that I have never thought that subsection (4) (which we are still discussing and which did, as the noble and learned Lord, the Lord Chancellor, said, cause much dissension and discussion) was difficult to understand or unfair. But because there was so much dissension and discussion, it seemed to me apparent that outside this House there would be still more dissension and that some words of some kind would have to be added to the subsection to make it more intelligible; and the best words that I could think of to add by way of explanation at the end of the subsection are the words which appear in the Amendment. I will not go into the matter any further, because the noble and learned Lord, the Lord Chancellor, has kindly said that the matter is to be reconsidered. That was the reason why I put the Amendment down, but I do not wish to move it.
§ Clause 5 agreed to.
§ Clause 6 [Provisions relating to complaints]:
§ LORD AIREDALE
moved, in subsection (3), to leave out "sent" and insert "made". The noble Lord said: This is an Amendment to Clause 6 which makes provision relating to complaints. Your Lordships will observe that subsections (1) and (2) of this clause both refer to complaints being "made". When we come to subsection (3) with which this Amendment deals, the phraseology is changed and we have a complaint being not "made" but "sent". I cannot think that the word "sent" has any particular significance in this subsection, which is concerned with imposing a time limit for the making of complaints. It would seem that if the subsection remains as it is with the word "sent" in it, the result might be that a person making a complaint who went to an interview with his Member of Parliament and at the interview handed his written complaint to the Member would technically be in breach of a duty under this subsection because he would not have sent his complaint and the Member would have to tell him that to put himself in order he would have to take this complaint away and send it to the Member. I cannot think that that would be a sen- 684 sible arrangement. Nothing would be lost by putting the word "made" in place of "sent" in the two places in this subsection where they occur. Accordingly I beg to move.
Page 5, line 2, leave out ("sent") and insert ("made").—(Lord Airedale.)
§ THE LORD CHANCELLOR
I agree with what the noble Lord, Lord Airedale, has said. I think his Amendment is an improvement to the Bill and I have much pleasure in accepting it. The same applies to Amendment No. 14.
§ On Question, Amendment agreed to.
Page 5, line 6, leave out ("sent") and insert ("made").—(Lord Airedale.)
§ On Question, Amendment agreed to.
§ Clause 6, as amended, agreed to.
§ Clauses 7 to 9 agreed to.
§ Clause 10:
§ Reports by Commissioner
§ (3) If, after conducting an investigation under this Act, it appears to the Commissioner that injustice has been caused to the person aggrieved in consequence of maladministration and that the injustice has not been, or will not be, remedied, he may, if he thinks fit, lay before the House of Commons a special report upon the case.
§ (4) The Commissioner shall annually lay before the House of Commons a general report on the performance of his functions under this Act and may from time to time lay before that House such other reports with respect to those functions as he thinks fit.
§ 6.32 p.m.
§ LORD HARLECH
moved, in subsection (3), to leave out "the House of Commons" and insert "Parliament" The noble Lord said: I beg to move this Amendment standing in my name on the Order Paper. It relates to a point made by my noble friend Lord Colville of Culross on Second Reading. It is not concerned with the broad issue of whether Peers should initiate an investigation by the Parliamentary Commissioner, on which the Committee have decided. It is on a narrower but important point. It deals with what should 685 happen in the case where a Minister sits in your Lordships' House and his Department is the subject of an investigation by the Parliamentary Commissioner.
The noble and learned Lord the Lord Chancellor is of necessity a Member of your Lordships' House, but in recent years a number of other Cabinet posts, including those of the Secretary of State for the Colonies, the Secretary of State for Foreign Affairs and the Defence Minister, have been held by noble Lords. I cannot feel that it would be satisfactory if a Department presided over by a Minister sitting in your Lordships' House was investigated by the Commissioner and a report was made on the case only in another place and not also in your Lordships' House. I think that the Minister concerned might find himself in a most undignified position, especially if the report gave rise to a debate in another place, because the circumstances of the case would be discussed in another place and the Minister chiefly concerned would not be in a position to make a reply on his own behalf. I can see no objection to a procedure under this Bill which would enable special reports of this kind to be made to your Lordships' House.
No doubt, in a majority of cases your Lordships would not wish to debate such reports. Clearly, if they relate to a Ministry the head of which is in another place and a debate took place there, there would be little point in having a debate on the same subject in your Lordships' House, though it is conceivable that in such cases your Lordships might wish to do so—and I do not see why this House should be denied this opportunity. But the real purpose of the Amendment is to deal with cases where a report is made on a Department which is presided over by a Member of your Lordships' House. I beg to move.
Page 7, line 32, leave out ("the House of Commons") and insert ("Parliament").—(Lord Harlech.)
§ LORD SHACKLETON
I confess that I had not fully appreciated the special point behind this Amendment, that it particularly relates to Ministers who sit in your Lordships' House. I do not see in what particular respect a Minister who sits in your Lordships' House is more vulnerable as a result of this pro- 686 cedure than he is already. His performance can be called in question in another place, just as the performance of a Minister who sits in another place can be criticised here. Although I can see, a little dimly perhaps, that there is a constitutional point, I do not think that any point of what might be called natural justice is involved. I should like to consider this aspect of the Bill, but my general approach is that these reports will be considered by the House of Commons Select Committee, on which your Lordships' House will not be represented. The Select Committee will be, so to speak, the management instrument for the Parliamentary Commissioner, in so far as there is one.
I cannot see what there is to prevent your Lordships' House from debating these reports. I have searched to see whether there is any such bar, but it seems to me that your Lordships are free to debate anything you wish, and I do not think this House would be debarred from debating these reports if it were considered necessary. We have looked at this matter carefully, and on the merits of the case we have decided that it would not be right to accept this Amendment, although it is our intention to accept the principle of the later Amendment relating to annual reports. Although I will think further, and will consult my friends on this Amendment, on my present inclination I do not think that the case for accepting it is strong enough. It may be argued that there is an anomaly here, but I think that the noble Lord's Amendment would create further anomalies.
§ LORD AIREDALE
If a proposal were made to debate one of these reports in this House, I could quite see the noble Lord, Lord Shackleton, if he were then a Minister, going to the Dispatch Box and saying that it is clear that this House was not intended to debate matters of this kind, because the Parliamentary Commissioner Bill specifically said that these matters were to be reported to the House of Commons only and were to be dealt with by a Select Committee of the House of Commons. We should thus have a situation in which the Ombudsman would be concerned about a serious injustice being done to a member of the public, a matter which it was then said 687 ought not to be debated in your Lordships' House. I hope that the Government will think again about this.
§ LORD SHACKLETON
Let me say to the noble Lord that I do not control what is debated in this House; this is within the powers of the House itself. The noble Lord may attribute tendencies, but on what grounds I do not know. I think there is no justification for his using this particular argument.
§ LORD AIREDALE
I am sorry, but it is so easy for bad feelings to be stirred up in these days by suggestions that one House of Parliament is debating matters which appear to have been reserved in some way exclusively to the other House. I still hope that the Government will think about this again.
§ LORD HARLECH
I think there is considerable substance in what the noble Lord, Lord Airedale, has just been saying. If, as the noble Lord, Lord Shackleton, said, he can see no objection to reports of this kind being debated in your Lordships' House, I cannot see why this small Amendment, which would simply mean that reports were laid before your Lordships' House, should not be accepted. It seems to me to be a perfectly reasonable request, and I hope that the noble Lord will look at it again, particularly in view of the fact that, as I understood him, he said that he can accept the next Amendment. That Amendment seeks to insert "Parliament" in subsection (4), which I think would be an advantage, and presumably would be done on the basis that it would enable your Lordships to examine the annual reports and, if necessary, debate them.
§ LORD SHACKLETON
I would only say that I take fully the noble Lord's point. What we really want is a procedure by which in some way the report could be copied to your Lordships' House, rather than be laid before it.
§ SEVERAL NOBLE LORDS: Why?
§ LORD SHACKLETON
Let me explain. The Parliamentary Commissioner is, in fact, operating to the House of Commons. That is what the debate has been about. They are setting up a Select Committee. Our role is in relation to the possible removal of the words "the House of Commons". The noble Lord must see that there is a difference in 688 the position of the two Houses in relation to the Parliamentary Commissioner. If he does not see that, I do not know what he thinks the debate has been about.
§ LORD SILKIN
Could the noble Lord explain to me what he means by this Select Committee? I may have slipped up and not followed it. He has twice referred to a Select Committee, but there is nothing in the Bill about a Select Committee.
§ LORD SHACKLETON
There is no need to mention the Select Committee in the Bill; nor would it be appropriate to do so. This is a House of Commons matter. But it has been stated on a number of occasions by the Government, and it has been discussed, that it is likely that a Select Committee will play a special rôle. Indeed. I think it was mentioned in the White Paper.
§ LORD HARLECH
With great respect, I do not know what the noble Lord's final remarks, addressed to some noble Lord on these Benches about not understanding the Bill, mean. I think we understand the Bill quite well. My understanding of it would not preclude the acceptance of this Amendment. Quite frankly, unless the noble Lord is prepared to say that he will look at this again—and look at it sympathetically, because I think I have made a valid point—I think we shall have to divide the Committee on this Amendment.
§ LORD SHACKLETON
I have told the noble Lord three times that I will look at it again. I have told him that there are interesting points. I cannot possibly give an undertaking, but I promise that I will look at it. I attempted to explain the difference between the role of the two Houses in this matter, and that there was a logical reason for these particular reports being made only to another place, whereas the annual report should be made to both Houses. I attempted, obviously unsuccessfully, to draw a difference between the two. However, I am willing to look at this again, although I cannot give an undertaking. It will, of course, be open to the noble Lord, if he is dissatisfied, to put down an Amendment on the Report stage.
§ LORD HARLECH
I think the easiest thing to do is to say that we will put 689 down the Amendment again on the Report stage. With that in mind, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 6.46 p.m.
§ LORD WADE
moved, in subsection (4), to leave out "the House of Commons" and to insert "Parliament". The noble Lord said: I beg to move the Amendment standing in the name of my noble friends and myself. This is a slightly different point from the last Amendment, moved by the noble Lord, Lord Harlech. Clause 10(4) provides that:The Commissioner shall annually lay before the House of Commons a general report on the performance of his functions under this Act and may from time to time lay before that House such other reports with respect to those functions as he thinks fit.It has already been made clear that this House is responsible for the dismissal of a Parliamentary Commissioner, and it seems only reasonable, therefore, that this House should be entitled to see the annual report, and that the annual report should be laid before Parliament, and not just before the House of Commons. I understand that this Amendment is likely to be accepted, and therefore it is unnecessary for me to pursue the argument further.
Page 7, line 34, leave out ("the House of Commons") and insert ("Parliament").—(Lord Wade.)
§ THE LORD CHANCELLOR
My noble friend Lord Shackleton intimated that the Government have no objection to the principle of this Amendment. It seems right, when there is an annual report, that it should be laid before both Houses, though the view has been taken so far that the position is different where a report is being made by this Parliamentary Commissioner of the Commons to a Select Committee of the Commons. But the Government agree, so far as the annual report is concerned, that it should be laid before both Houses.
I would, however, ask the noble Lord whether he would withdraw the Amendment in order to enable the Government to put it in a slightly different form. I am told that it is better to say "each House of Parliament" rather than "Parliament"; that a consequential Amendment would be needed to the words "that House", in line 37, and consequential 690 Amendments may also be required in Clause 10(5)(a) and (b). Subject to those points, the Government will accept the Amendment in principle, and themselves deal with it on Report.
§ Amendment, by leave, withdrawn.
§ LORD WADE
moved to add to the clause:() Paragraph 12 of the Schedule to the Defamation Act 1952 as applied by Section 7 thereof shall be deemed to include reference to the Parliamentary Commissioner.
The noble Lord said: I beg to move the Amendment standing in the name of my noble friends and myself. This is really a probing Amendment. I am anxious to be quite sure that, so far as questions of privilege are concerned, the Parliamentary Commissioner is covered. Perhaps I might remind noble Lords that Section 7 of the Defamation Act 1952 deals with qualified privilege of newspapers, and paragraph 12 of the Schedule reads as follows:
A copy or fair and accurate report or summary of any notice or other matter issued for the information of the public by or on behalf of any government department, officer of state, local authority or chief officer of police.
The proposal in the Amendment is to include the Parliamentary Commissioner. Apart from reports to Parliament, I suppose it is possible that the Parliamentary Commissioner might give interviews, and might be asked to report in public on particular cases. He might be interviewed about his annual report by the Press. I am not sure whether he would be covered. I have, as I say, put this down as a probing Amendment to ascertain whether the question of privilege is adequately covered.
Page 8, line 13, at end insert the said subsection.—(Lord Wade.)
§ THE LORD CHANCELLOR
Clause 10(5) already provides that there shall be absolute privilege, first for the publication of any matter by the Commissioner in making a report to the Select Committee; secondly, for the publication of any matter by a Member of that 691 House in communicating with the Commissioner or his officers; thirdly, by such a Member with the person who made a complaint; and, fourthly, by the Commissioner with the person who made the complaint.
This Amendment seems designed to cover Press notices and such things issued by the Commissioner to the Press. It is not thought that this is really needed or could really be justified. There is no occasion for the Commissioner to issue highly defamatory statements about other people to the Press. It is not in fact anticipated that there will be Press notices as such in the ordinary way, except, of course, that he may issue them to start with explaining to everybody exactly what his powers are and exactly what field he is dealing with. But he will not issue to the Press statements of the cases he is dealing with. These he will report to the Minister in the first place, and, if necessary, to the Select Committee. It is not anticipated, of course, that it is likely there will be other than fairly rare special reports to the Select Committee, because the experience everywhere else is that Ministers do not like being hauled up before a Select Committee in this way, and they tend readily to fall in with what the Commissioner suggests they ought to do in the particular case. There will not be many.
The Commissioner designate himself has been consulted about this matter, and he says that he does not require any further degree of privilege than he has already in the Bill as drafted. I have to suggest that, on those grounds, this Amendment is not really necessary and would be difficult to justify to the public.
§ Amendment, by leave, withdrawn.
§ Clause 10 agreed to.
§ Remaining clauses agreed to.
§ Schedule 1 agreed to.
§ Schedule 2 [Departments and Authorities subject to investigation]:
§ THE LORD CHANCELLOR
I beg to move Amendment No. 18, standing in my name on the Order Paper. It is, of 692 course, due to the fact that the Ministry of Aviation is no longer with us.
Page 12, line 19, leave out ("Ministry of Aviation").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ 6.53 p.m.
§ LORD HARLECH
moved to add to the list of Departments and Authorities subject to investigation:Chancellor of the Duchy of Lancaster's Office".
§ The noble Lord said: I beg to move the Amendment standing in my name on the Order Paper. This, again, is an Amendment which really arises out of a point made by my noble friend Lord Colville of Culross on the Second Reading. Perhaps I may speak about this Amendment, No.19, and Nos. 20, 21 and 22 at the same time. They are designed simply to insert into the Schedule various offices which are at present left out. I recognise that the work done by these particular Ministers varies from time to time, and I am not aware whether any of these particular Ministers have departmental duties at present which might make them subject to investigation by the Parliamentary Commissioner. But certainly these Offices of State have from time to time been held by people who did have departmental duties.
§ I have in mind, for instance, my noble friend Lord Hill of Luton, who was at one time responsible for all the information services in the Government; and I have no doubt there are other examples. I do not know whether the noble Earl the Leader of the House, as the Lord Privy Seal, has any departmental duties or responsibilities at present. Also, we are somewhat in the dark about the duties of the Chancellor of the Duchy of Lancaster at the present time, Mr. Fred Lee, although presumably the Chancellor of the Duchy of Lancaster always has some responsibilities with regard to the estates which belong to the Duchy. Much the same applies in the case of the Minister without Portfolio, Mr. Gordon Walker. I do not know whether he has any responsibilities which might require investigations in some circumstances by the Parliamentary Commissioner.
§ All I am suggesting is that it is clear that from time to time these Offices are 693 held by people who have responsibilities which might need investigation, and if we are going to have in the Schedule Offices such as the Royal Mint and the Public Records Office, I suggest that it would be sensible to insert the Offices of these important Ministers.
Page 12, line 19, at end insert ("Chancellor of the Duchy of Lancaster's Office.").—(Lord Harlech.)
Tile LORD CHANCELLOR
As with, I think, the other Ministers, the Chancellor of the Duchy of Lancaster has, of course, duties to perform in connection with the Duchy which are not done on behalf of the Government and for which he is separately remunerated. On the other hand, he usually has some work to do on behalf of the Government for which he is remunerated by the Government. I think that nobody can have guessed it, but all these three Offices are in fact included in Schedule 2, paragraph 6, in these mysterious words:The reference to the Treasury does not include the Cabinet Office, but subject to that includes the subordinate departments of the Treasury and the office of any Minister whose expenses are defrayed out of moneys provided by Parliament for the service of the Treasury.As I say, I do not think anybody would have guessed it, but this wording includes the Minister without Portfolio, the Lord Privy Seal and the Chancellor of the Duchy of Lancaster.
§ LORD HARLECH
As the distinguished Offices seem to be hidden in paragraph 6 of Schedule 2, I will, of course, ask leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ THE LORD CHANCELLOR
For reasons which were fully described the other day by the noble Lord, Lord Molson, I beg leave to move this Amendment.
Page 12, line 36, leave out ("Ministry of Land and Natural Resources") and insert ("Land Commission").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Schedule 2, as amended, agreed to.694
§ Schedule 3 [Matters not subject to investigation]:
§ LORD WADE
I beg to move this Amendment standing in the names of my noble friends and myself. Schedule 3 deals with matters not subject to investigation, and paragraph 8 refers to:Action taken on behalf of the Minister of Health or the Secretary of State by a Regional Hospital Board, Board of Governors of a Teaching Hospital, Hospital Management Committee or Board of Management, or by the Public Health laboratory Service Board.All those bodies are excluded. There is a good deal of strong feeling about this. It is rather late to start a lengthy debate on the subject, but I should have thought that bodies such as Regional Hospital Boards would be appropriate for investigation. I am not making an attack on Regional Hospital Boards, but there are occasions when people feel there are grievances concerning them, and I should have thought they would be appropriate for investigation by the Parliamentary Commissioner.
Therefore, I am asking that this paragraph 8 of Schedule 3 should be taken out in order that these bodies may be the subject of investigation by the Parliamentary Commissioner if occasion arises where there is a grievance which a Member of the House of Commons thinks ought to be looked into. I beg to move.
Page 14, line 23, leave out paragraph 8.—(Lord Wade.)
LADY ELLIOT OF HARWOOD
I rise to support the Amendment moved by the noble Lord. I think I spoke about this matter on Second Reading. It concerns a great many people. There are a tremendous number of grievances that come up about the health services, about Regional Hospital Boards, and so on, and these are now all excluded. I have been in touch with the Patients' Association, who receive a great many complaints, and they tell me that there is no proper complaints procedure. People can write to this or that officer, but further action is entirely in the hands of the authorities. The Ministry have issued an advisory leaflet about the hospital administration and the handling of complaints, but I believe that this leaflet is not available to the patients or to the public. The fate of a complaint lies in the hands of the administrative officers and can be finally 695 baulked at any stage. I sincerely hope that the noble Lord, Lord Shackleton, will give this Amendment a sympathetic hearing, because I believe that it is a matter which is vital to the public. It should come within the orbit of the Ombudsman, and I hope the noble Lord will consider it favourably.
§ 7.2 p.m.
§ LORD NUGENT OF GUILDFORD
May I add a word of support to my noble friend Lady Elliot of Harwood, and to the noble Lord, Lord Wade? I noted that in another place the Lord President of the Council gave an undertaking that before the Bill came here Her Majesty's Government would reconsider this matter, and I had been hoping that Ministers opposite would have put on the Order Paper an Amendment to meet the strong feelings expressed in another place. As the noble Lord, Lord Shackleton, will know, in Committee in another place the hospital service was put back into the Bill, and the Lord President of the Council in another place managed to get the assent of the House to the re-amendment of the Bill, to take out the hospital service, only by giving the assurance I have just mentioned. Therefore, the noble Lord, Lord Wade, is completely right when he says that there is strong feeling on all sides that this is a field where there is a great deal of complaint. Whilst I should be the first to recognise what a difficulty this is, and the problems facing the Minister of Health in the administration of the hospitals, I feel that there is an obligation on the Government to meet this situation, and, indeed, to fulfil the assurance given by the Lord President of the Council. For that reason I should like to go a little further in dealing with the arguments.
Arguments have been advanced that the Parliamentary Commissioner could not investigate complaints against the hospital service if the complaints had a clinical element in them. In practice, most complaints against the hospital service obviously will have a clinical element in them—it would be surprising if they had not. But it seems to me that there is no insuperable problem here, once Her Majesty's Ministers are persuaded of the need. I notice that a Labour Member of Parliament who is a member of a Regional Hospital Board 696 most strongly advocated the inclusion of the whole service. He obviously saw no difficulty in it.
Moreover, under the Swedish model, in which I am sure the noble Lord, Lord Shackleton, will be well versed, the hospital service complete comes within the sphere of the Ombudsman, and there is no difficulty at all in dealing with clinical points. Indeed, if difficult clinical points were expected to arise, the Ombudsman could always have assessors appointed to assist him in matters of medical and surgical knowledge.
There is a second argument that I feel we who are opposing the Government should meet. It is that the Parliamentary Commissioner is not really necessary because the Minister can already set up an independent inquiry, and I understand that in March, last year, he issued a circular, H.M. 66/15, under the heading of "Methods of Dealing with Complaints by Patients". I wonder whether the noble Lord, Lord Shackleton, knows how many inquiries the Minister has actually set up in the last year. I should be surprised if there had been many. If the Minister does not set up such an inquiry when a complaint is made, the complainant still has no remedy, and it is here that we feel the Ombudsman should come into the matter. The Minister can so easily say that the complaint is not serious enough to justify an inquiry. Obviously, inquiries of this kind will always be difficult and embarrassing to deal with, but this seems to me to be all the stronger reason for having the Ombudsman there.
Going back to the point of dealing with clinical aspects of a complaint, the Financial Secretary to the Treasury explained in another place how the Minister's inquiry would work where a complaint involved clinical aspects. The Financial Secretary was good enough to explain that the Minister would then set up a mixed tribunal, with a lawyer presiding, accompanied by a consultant or other people of great medical distinction. In other words, there is no difficulty in setting up an inquiry. I should have thought this was an entirely practical constitution for dealing with difficult cases of this kind.
I think it is fair to make the point that there are great expectations of this 697 Bill. I expect the noble Lord, Lord Shackleton, includes in his reading the Sunday Mirror, and although they are his constant supporters he will have seen what critical comments they had to make about this Bill. I feel there is a strong case, which I hope the noble Lord will be prepared to meet, for putting the hospital service back into the Bill.
§ LORD SHACKLETON
I am afraid I do not include the Sunday Mirror in my reading. I regret it, and if there are critical comments in relation to the Parliamentary Commissioner it is largely as a result of the activities of members of the Opposition who, as I said on an earlier occasion, have shown an element of sour grapes in this matter. Having steadfastly refused, when they were in power, to do anything about the Parliamentary Commissioner they are now seeking to complain because the present Government are not doing everything. Having made my opening remarks, I agree that there is great force in what the noble Lord, Lord Nugent of Guildford, has said. I am not entirely convinced by the Swedish analogy, because the Swedish Ombudsman can also investigate the activities of the clergy; and I have noticed no proposal to extend the activities of our Ombudsman, even to the Established Church. The arguments against accepting this Amendment are simply those of wisdom in relation to the starting of this whole scheme.
The noble Lord himself pointed to the fact that there are certain difficulties which must be overcome: there is the problem of clinical judgment; there is already a new complaints procedure, and there are other difficulties. This is not to suggest that they cannot be, and ought not to be, overcome. It is no part of my duty to-day either to criticise or to defend the hospital service, but at an early stage of the development of the work of the Parliamentary Commissioner I can see real difficulties in bringing in an area so diffuse, and indeed in some respects so difficult to investigate, without some careful preparation and without examination of it in consultation with the medical profession and others. There is power in this Bill to bring in the hospital service as soon as this or any other Government is ready to do so. But I beg the Opposition not to press this Amendment to a Division.
698 One of the reasons why I say that is because it is true that the Parliamentary Commissioner has had a bad Press. I believe, as my noble and learned friend the Lord Chancellor said, that the Government have gone very much further than many people would have expected. We are giving greater powers of investigation, and this is an important step forward. I hope, therefore, that merely because we cannot do everything in this Bill people will not imply that what is being done is not worth doing; in other words, use the argument in reverse, that if you cannot do everything you must do nothing. We are doing a great deal, and it is purely on the grounds of the un-wisdom of adding this large additional responsibility at this time that I must oppose the Amendment. My right honourable friend the Lord President of the Council certainly gave an undertaking that this matter should be examined again, with a view, possibly, that if the Government could accept the inclusion of the hospital service they would do so. This examination has taken place and we are of the opinion that it would be very unwise to do so at this stage. I hope, therefore, that the Opposition will not press this Amendment, because I believe the difference between us is not so much one of principle as a matter of practice and timing, and this matter has been very carefully considered.
§ 7.12 p.m.
§ LORD AUCKLAND
I am in some sympathy with the explanation given by the noble Lord, Lord Shackleton, and although I do not serve on a Regional Hospital Board myself I am on two house committees which work very closely with the Regional Board concerned. It seems to me that the Hospital Boards should be one of the first people for the Ombudsman to cover, because often if something goes wrong they are given a bad Press and the Boards themselves have very little redress; and those who are affected by the Boards feel that they have nobody to turn to. I believe that to include these people within the scope of the Bill would give protection to the Boards themselves and to the patients they serve. I fully appreciate that not everything can be brought under the scope of the Bill simultaneously, but I agree with the noble Lord, Lord Wade, and those of my noble friends who have 699 pressed for priority to be given to the Regional Hospital Boards.
§ VISCOUNT ADDISON
Perhaps I should disclose an interest in this, as I am chairman of a Regional Hospital Board. But although I should not have any particularly strong feelings about whether or not an Ombudsman should investigate the number of complaints we get, I feel it would certainly provide a very considerable load for the Ombudsman, because we deal with a very large number of complaints, mostly of a minor character and mostly dealt with through the ordinary auspices of the Boards and the Ministry of Health. I think at this stage we should be placing a large additional load on the Ombudsman if we were to agree to this Amendment. I should not like to be thought to be prejudiced, but I think the Government have a strong case in resisting this proposal at this stage, until perhaps later on when there may be other reasons to increase the Ombudsman's area of function. I therefore hope the Amendment will not be pressed.
§ LORD STRABOLGI
I would ask my noble friend Lord Shackleton one question. I think the arguments advanced have great force, and they certainly have my agreement, but one accepts also what my noble friend has said about future Government reconsideration of this matter when the Ombudsman is able to cope with the number of complaints that we envisage. What I do not understand is why, if the Government will not accept this Amendment, the Ministry of Health is included in Schedule 2, since one cannot conceive of any complaint that would he made or need investigation by the Parliamentary Commissioner that is not something that comes under the jurisdiction of one of the Regional Hospital Boards. That is particularly so since the Minister now delegates most of his responsibilities for administration and other matters concerning patients, over which no doubt the main field of complaints would come, in which case the words "Ministry of Health" in the Bill as it at present stands would appear to be redundant.
§ LORD NUGENT OF GUILDFORD
Whilst I thank the noble Lord, Lord Shackleton, for the very persuasive ans- 700 wer he gave to the case I put to him, I must say I am disappointed to hear that the examination which he and his right honourable friends have given to the matter has not brought forth any results. Here, indeed, is an instance of a case where the other place is clearly expecting to see this Bill go back again to them. I am sure the noble and learned Lord the Lord Chancellor will have studied the report of the Report stage of the Bill in another place and will have observed that the House gave this Amendment to the Lord President of the Council only because it expected that an Amendment was going to take place. In those circumstances, apart from the general expectations outside, I feel that we should be letting down the other place if the Bill goes back unamended, without giving them a chance to say what they want to say about it. Although I realise that this is a far from easy question for the Government. I feel that their obligations here are very strong indeed, and I would advise my noble friends on this side that if the noble Lord, Lord Wade, is willing to withdraw the Amendment now we should certainly return to it on Report.
§ LORD SHACKLETON
I wish I could be definite. We are moving into this very new field. We do not know what the load on the Parliamentary Commissioner is going to be. I should have thought a great deal would depend on the attitude of the Parliamentary Commissioner himself. We are bound to have regard to his opinion, and although it would be inappropriate for me to say what I believe to be his opinion, certainly the impression I have clearly gained is "not yet". But it may well be possible—I cannot say whether sooner or later.
Perhaps I ought to answer my noble friend. The Minister of Health has other responsibilities than running the hospital service—even more responsibilities than those of the Minister without Portfolio. The noble Lord, Lord Harlech, disappointed me by failing to point out that 701 I was also the Minister without Portfolio, like my predecessor. The point is that the Ministry of Health have an important area of responsibility which can be challenged. It is only the hospital service which is excluded, and it is excluded because there are fundamental difficulties and because we do not believe they can be overcome; and we feel it is only prudent to wait. I wish I could give an answer on the timetable.
§ Amendment, by leave, withdrawn.
§ Remaining Schedule agreed to.702
§ House resumed: Bill reported, with Amendments.