§ 3.57 p.m.
§ Report stage resumed.
LORD REAY moved to add to the clause:
() For the purposes of this Act the term maladministration shall not of itself be understood to exclude those cases where, notwithstanding the fact that administrative procedures may have been properly followed, an arbitrary and unreasonable decision by a government department or other authority resulted in an injustice.
§ The noble Lord said: My Lords, Amendment No. 7, which was moved by the noble and learned Lord the Lord Chancellor, certainly improves the Bill. As the noble Viscount pointed out, it admits the principle that the merits of certain discretionary decisions—namely, those which have not been taken without maladministration, and, therefore, presumably those in which there has been some maladministration—may be questioned by the Parliamentary Commissioner. But what it will admit in practice remains conjectural, because maladministration is undefined in the Bill. The noble Viscount pointed out that in fact it would be almost impossible to give a definition to "maladministration". My Amendment does not attempt to do this, but seeks to make explicit that the term, in its application, can include what it might well otherwise be taken not to include; namely, cases where, however correct the procedures were—if no delay was incurred, no files were lost, no instructions disobeyed, no behaviour lax—nevertheless the decision taken was ultimately both arbitrary and unreasonable.
§ I think this is, more or less, what most people, who were disturbed about it in the early stages of the Bill, want to see. They want it to be quite clear that the arbitrary, perverse, unjust and unreasonable consequences of administration, however correctly the established formulae of administrative procedure 1351 may be observed, are open to direct investigation. I would go further and suggest that this possibly represents the most crucial area of the field with which this Bill is concerned, and that failure to make this clear is the principal reason for that lack of public acclaim which the noble Lord, Lord Shackleton, complained of on Second Reading.
§ It is argued, I think, by the Government, and also by the noble Viscount, Lord Colville of Culross, in a rather frightening alliance that they seem to have established, that the term "maladministration" already covers these cases. I think this opinion may well be wrong. In those examples I have given, namely in cases where files have been lost, instructions have been disobeyed, and so on, an explanation can be given to account for any perverse decision. Such cases would qualify easily for the description of "maladministration". But I am thinking of cases where no explanation at all can be found, where every detail of procedure is correct and where the only fault—apart from the unjust consequences of the decision—will be either that procedures were too correctly and inflexibly followed or that there was some indiscoverable psychological quirk in someone's mind at the moment when the decision was taken. It is those cases—precisely the kind one is after—inexplicable and unjust which I think may be disqualified from the description of maladministration, precisely because they are inexplicable.
§ Even if the Government are right, there is a great deal to be gained and nothing at all to be lost if it is made perfectly explicit that these cases are covered by the term written in the Bill. This Bill is written more or less personally for the Parliamentary Commissioner. Unlike other legislation that comes to this House, it is not written for the courts to interpret. I know this means that an audacious Parliamentary Commissioner will make much more of it than a modest one, and presumably the Government will have had the opportunity to consult the present incumbent of this as yet uncreated office for his views on this point. But it also means that the interpretation given in this House by Government officers and interpretations given by legal advisers to the Government are not final, 1352 and possibly they are less useful than in the case of ordinary legislation.
§ Furthermore, the Bill needs to be understood not only by the Parliamentary Commissioner but also by M.P.s. After all, it is the M.P.s who have to decide whether complaints are eligible for passage to the Parliamentary Commissioner. It needs to be understood also by civil servants, in order that they should be deterred from the practice of unreasonable decisions. I would suggest that if it was understood by the Press and the public that the sort of cases I have outlined were covered by the term "maladministration", the Government would stand to gain far greater credit for this Bill than they have already and more than they will do if this question is left ambiguous.
§ I had better say a word on the drafting of this Amendment. The word "arbitrary" is coupled with the word "unreasonable" in order to meet the objection that the Parliamentary Commissioner could otherwise question departmental policy. To be arbitrary I think a decision would have to be more or less out of line with the pattern of the decisions taken by a particular authority. The word" unreasonable" is quite familiar as a usable criterion in a court of law. Finally, the whole Amendment has been put negatively; that is to say, it reads "should not by itself exclude", rather than "should include", in order to avoid stating all the necessary conditions which might have to apply before any arbitrary and unreasonable decision could be described as maladministration.
§ For the reasons I have given, I think this Bill could be interpreted as meaning that these examples of unreasonable decisions were excluded from the term "maladministration". But even if I am wrong and they will be interpreted as being included, more is to be gained than lost by making this more explicit. Therefore I think this Amendment would improve the Bill. I shall certainly listen very carefully to the noble and learned Lord the Lord Chancellor's answer, but I think that a statement by a Member of the Government, even if it is satisfactory, would be less useful than an Amendment to the Bill. I beg to move.
Page 9, line 28, at end insert the said subsection.—(Lord Reay.)
VISCOUNT COLVILLE OF CULROSS
My Lords, I think I ought to say one word on this Amendment, because it relates to a point I raised on Second Reading. I shall of course be exceedingly interested, as I am sure the House will be, to hear what the noble and learned Lord the Lord Chancellor has to say on this matter. I think it exemplifies about the limit of the Parliamentary Commissioner's range. If he finds that he has to decide whether or not to enter into the lists on a subject where there has been no infringement of the technical rules, but on something which might conceivably be said to be a perverse decision and one not supported by any facts before the Minister or the Department concerned, he may well find himself in difficulty.
The difficulty in which I find myself is that if you try to specify what does or does not come within the term "maladministration", I am very much afraid that instead of making it more clear all you will do is to limit the operation of the Parliamentary Commissioner. It would seem to me wrong to try to define too closely what he may or may not do—this may be the opposite of what I was arguing earlier on—and that you must leave him, being a responsible person chosen for that quality, to decide where his range ends and how far he can go. I think there will be cases of this sort, which are cases of perverseness without any infringement of rules, where he thinks he can intervene. On the other hand, it may be very difficult to distinguish that sort of case from one where there has been a decision with which he does not agree, but with which he can find no specific fault, either in the machinery or in the terms of the decision, or in the relationship it bears to the facts and evidence upon which it was based. On the whole I would be against putting an Amendment in the Bill which tried to pin down the realms where the Parliamentary Commissioner could operate any more than is absolutely necessary. I think the term "maladministration" will become clearer in practice than it is now, and I hope we shall not try to define it any further in the Bill.
§ LORD REAY
My Lords, may I ask the noble Viscount a question, since this forms the kernel of his objection to the Amendment? Would he not agree that you are not pinning down the Parliamen- 1354 tary Commissioner if you are not making an exclusive definition? If all that you are doing is pointing out that a certain thing can be taken as being included in the term "maladministration", you cannot be said to be limiting him in the interpretation of "maladministration".
VISCOUNT COLVILLE OF CULROSS
The Amendment says that something shall not be excluded. If you say that it shall not exclude this but, on the other hand, you do not say anything about anything else it may not exclude, I think you are in the same difficulty mentioned by the noble and learned Lord the Lord Chancellor earlier: you have drawn attention to one set of words and then thrown doubt about what may be meant by the term in relation to other unspecified situations. It is precisely for the reason that you are picking one thing only out of a large range which is in a way pinning it down, because it is pointing to a particular aspect of maladministration and saying nothing about any other aspect.
THE LORD CHANCELLOR
My Lords, I cannot advise the House to accept this Amendment, largely for the reasons given by the noble Viscount. In the Whyatt Report and ever since two things have been distinguished: on the one hand maladministration, and on the other hand, discretionary decisions. As a remedy for the first, the Whyatt Report proposed a Parliamentary Commissioner. As a remedy for the second it proposed an extension of the powers of the Council on Tribunals and perhaps a new general administrative tribunal. Not long ago your Lordships, with another place, passed the Tribunals and Inquiries Act, enabling the Council on Tribunals to supervise new kinds of ministerial inquiries which they had no power to supervise before. I am hoping quite shortly to lay before Parliament an Order applying that to something like a hundred different kinds of ministerial inquiries where the Council on Tribunals has had no power before. In this Bill the Government have throughout on this point sought to follow in substance the recommendations of the Whyatt Committee. I think that your Lordships this afternoon have substantially improved the Bill, not because the Government have changed their mind, but because the Bill now expresses that mind much more clearly. 1355 On the Second Reading of the Bill my right honourable friend, the Lord President said:Nor do we include under maladministration that whole group of discretionary decisions which Sir John Whyatt treated separately in the first part of his Report. Discretionary decision, properly exercised, which the complainant dislikes but cannot fault the manner in which it was taken, is excluded by this clause."—[OFFICIAL REPORT (Commons), 18/10/66, col. 51.]My Lords, I agree with the noble Viscount that this Amendment would merely introduce confusion in attempting what is, in effect, a partial definition of "maladministration". It would enable the Parliamentary Commissioner to intervene, although at the end of the day he found there was no maladministration at all, if he thought the decision arbitrary or unreasonable. I have looked up "arbitrary" in the Concise Oxford English Dictionary, and its primary meaning appears to be derived from mere opinion. Of course this must be so at the end of the day. The Minister has to decide whether there is to be a town at place A or B. One of the things which maladministration includes, but which we have not mentioned, is not observing the law. Of course, if the law is that he cannot do that unless there is a public inquiry he must have a public inquiry. If there has been no delay, and none of the factors to which I have referred, then at the end of the day his decision must be derived from his own opinion, and in many cases, although it is an arbitrary decision, one man would take one view and another man another. If one is to say that the Parliamentary Commissioner can cause the decision to be overruled because he thinks it unreasonable, then this again is only substituting one man's opinion for another.
I apprehend that one of the reasons why the noble Lord, Lord Harlech made it plain at the Committee stage of the Bill that no Government could allow a one-man court of appeal from discretionary decisions is, that one of the reasons why the Minister may decide on scheme A rather than scheme B, is because scheme B might cost another £3 million. One cannot have the Parliamentary Commissioner with power to override the Budget. This Amendment to the Amendment, therefore, would, I suggest, 1356 merely introduce confusion into what I think is now reasonably clear and reasonably simple in the Bill as we have it. It is for those reasons, allied to those put forward by the noble Viscount, that I hope the noble Lord will be prepared to withdraw the Amendment to the Amendment.
§ LORD REAY
I still feel that this matter has not been made clear. It seems to me that the speech of the noble and learned Lord was (if he will excuse the word) in some sort of sense regressive, in that it again seemed to me to be reintroducing this distinction between maladministration and what may be improper discretion. I do not see how one can distinguish where there has been a discretion, the manner of which has been correct in some sort of sense, although the result or essence has been incorrect.
The noble and learned Lord objected to the use of the word "arbitrary". In practice I do not think it is usually taken as referring simply to the expression of somebody else's opinion: in ordinary language, it is usually used more exclusively and severely than that. I included it only in order to meet an objection which I thought the noble and learned Lord would otherwise make, and which I pointed out when I was originally moving the Amendment—namely, that it would otherwise enable the Parliamentary Commissioner to encroach on the policies of a Department. This was something we had attempted to take account of in an Amendment which we had down on the Committee stage but which the Government felt unable to accept.
Certainly no one wants the Parliamentary Commissioner to be a one-man appeal court, but I think that in a court of law one would not be led to expect that this is how it would be viewed if the word "unreasonable" appeared in the Bill. It is perfectly clear that the Parliamentary Commissioner is not being advised simply to revise, on the basis of a man entitled to an equal opinion, the decision of the Department, if he is being empowered to review the decision, to criticise it, on the grounds that it was, in his eyes unreasonable. My Amendment would impose a much stronger requirement than merely that a decision of a Minister did not appeal to the Commissioner as being a correct decision.
1357 I must confess that I am not entirely satisfied. I am not even now certain, as I thought I was to start with, that it has been the intention of the Government that the Bill should cover the cases of which I have given an example—namely, those where, although the administrative procedures have been correctly followed, and cannot in detail be faulted, nevertheless the result looked a wholly unreasonable one, as occasionally the verdicts of juries are taken to be unreasonable in courts of law. I am now not so certain that the Government even mean that cases of this sort should be included in the term "maladministration". However, whichever opinion is given by a member of the Government in this House as to what the Government themselves mean, this is not going to be final. I think the only substantial objection made to this particular Amendment is the word "arbitrary". I do not think that is very important, and since I should prefer to see the Bill with this Amendment in it, I shall ask the Committee to decide.
§ On Question, Amendment negatived.
§ Schedule 2 [Departments and authorities subject to investigation]:
THE LORD CHANCELLOR
My Lords, this Amendment is simply to include in the relevant Departments the Social Survey. The Social Survey, which is at present a division of the Central Office of Information, is to become a separate department on April 1, 1967, and it is therefore necessary to add it to the list of Departments coming within the field of the Commissioner. I hope your Lordships will not press me as to what good it is going to do anybody to make the Social Survey a separate Department. It was in accordance with a recommendation of the Heyworth Committee on Social Studies. The acceptance in principle of this particular Heyworth recommendation was announced by the noble Lord, Lord Shepherd, in answer to a Question in this House by Lord Taylor on November 30, 1965. The intention to establish the Survey as a separate Department from April 1 was announced by my right honourable friend the Financial Secretary to the Treasury in an Answer in another place on February 17, 1967. Legislation is not necessary to achieve it, but it should therefore plainly be inserted in the Schedule, and I beg to move.
Page 13, line 3, at end insert ("Social Survey")—(The Lord Chancellor.)
VISCOUNT COLVILLE OF CULROSS
My Lords, is the Social Survey an entity recognised by the law at this moment, so that we can properly insert it in the Schedule? The House will remember that we could not include in the list the Land Commission until the Act which set it up was passed. I do not know whether the Social Survey requires some statutory instrument, or order, before it is turned into a separate entity, but if it does, presumably we cannot take notice of it, as it were, legislatively, until such order has been made. Can the noble and learned Lord tell us that the Survey is capable of being independently recognised now, even before April 1, 1967?
THE LORD CHANCELLOR
My Lords, as I understand it, if I may speak again, it is at present a division of the Central Office of Information, and it can become a separate Government Department under the prerogative. In fact, all the main present Departments, I think, were anciently Departments of State created under the prerogative. It is a modern habit to require an Act of Parliament or an order for them. No Act or Order would be required for this.
§ LORD AIREDALE
My Lords, is the Parliamentary Commissioner himself yet a separate entity known to the law?
THE LORD CHANCELLOR
I do not think he will be until this Bill is passed. He is merely designate and in the background.
§ On Question, Amendment agreed to.
§ Schedule 3: