HL Deb 08 June 1971 vol 320 cc11-26

3.5 p.m.

LORD DRUMALBYN

My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.

Moved, That the House do again resolve itself into Committee.—(Lord Drumalbyn.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF LISTOWEL in the Chair]

Schedule 3 [Chief Registrar and Assistant Registrars, National Industrial Relations Court and Commission on Industrial Relations]:

THE CHAIRMAN OF COMMITTEES

Before I call Amendment No. 275H I should point out to the Committee that if this Amendment is agreed to I cannot call Amendment No. 375M.

LORD STOW HILL moved Amendment No. 275H: Page 130, line 40, leave out paragraph (6)

The noble Lord said: I beg to move this Amendment in order to probe the thoughts of the Government on this measure; and I suspect that in doing so I have very much in mind the thoughts which prompted the noble Lord, Lord Drumalbyn, to put down Amendment No. 275M to make a change in this provision. The point I wish to raise has absolutely no Party content whatever. It is this. In this Part of Schedule 3 one is dealing with the appointed members of the Industrial Court. In a sense, they are assessors to assist the judges but they are also themselves judges. They will be called upon to exercise purely judicial functions and will take part in the judicial processes for the purpose for which the Industrial Court is set up. I know that the noble Lord, Lord Drumalbyn, and the noble and learned Lord the Lord Chancellor will feel the importance of the principle that in framing constitutional provisions one should be extremely careful as to their impact on the power of removal by an Executive Minister.

I am not suggesting that the power of removal should be as restricted in scope as it is when applied to judges proper, if I may so describe them. A High Court Judge does not enter into this category; although of course there are special constitutional provisions which apply to his removal by Parliament as a whole. But in the case of other judges the noble and learned Lord the Lord Chancellor has vested in him certain functions in respect of which he is required to exercise a most important, difficult and delicate discretion. The country as a whole always has complete confidence in the Lord Chancellor in the way in which he approaches matters of that sort.

The question I am putting to the Government and on which I should he grateful to ascertain their thinking is: does either the wording which at present appears in paragraph 6 of Part II of Schedule 3 or the wording which the noble Lord, Lord Drumalbyn would wish to substitute for it really strike the right note? The appointed members of the Court will hold office for only a limited period of time. They are not like the judges of the county courts or Metropolitan magistrates who are appointed for a very long period of years. The period of office of the appointed members is rather short when compared with the normal period for the holders of judicial office in this country. Is it desirable, in the opinion of the Government Front Bench, that there should be a virtually unrestricted power of removal for incapacity? The Amendment which the Government wish to substitute introduces the note of misbehaviour. I accept at once that should it unhappily occur—and fortunately in our country it occurs very rarely, if ever—that a person entrusted with judicial duties can be said in any way to misbehave, the Government must have the power to remove. is it not rather more difficult to try to define circumstances in which an Executive Minister, including the noble and learned Lord, the Lord Chancellor, exercises his powers in this context? Is it desirable that, together with the Secretary of State, those Executive Ministers, should have the power to say that in their judgment a particular appointed member has shown during the limited period of his office that he is just not up to it?

One has in mind a situation in which the appointed member, by his judgment or by his dissenting judgment, may have obviously indicated that he does not agree with the view which generally would be held by the Government. I hope that noble Lords will not think that I am imputing had faith to anybody; but one cannot foresee how circumstances would work out and it would be unfortunate if at some future time, perhaps years hence, a member was removed by the noble and learned Lord or the Secretary of State—a member of whom it was known that he had habitually held a view which was in conflict with general Government policy. I put the question interrogatively and I hope that the Committee will think that the point is important, and it has no Party content whatever. The Government have set up a Court which this House approved on Second Reading. It is controversial, of course, but the Court having been set up I am sure that the Committee would wish it to function as efficiently as possible and command all the respect which it must have from the public and from both sides of industry if it is to be able to address itself to its judicial functions with any success.

I shall be most grateful if one or other of the noble Lords in charge of this particular aspect of the Bill would be so kind as to indicate what is the Government's thinking. If they invite me to suggest alternative language I would say that it is difficult for me to do so. The alternative which I would put for their consideration is whether it would not be a wise course not to vest in anybody power of removal on the ground of incapacity. After all, the holder of the office holds it for only a limited period of time. Obviously, he will have been chosen with great care, and one would have thought it most unlikely that the choice would fall on someone who, within the limited period that he would be in office, would be so incapable of performing the duties he would be called on to perform that his removal would become necessary. That is the question of principle which I should like to raise; and it goes not only with my Amendment but also is in close association with the noble Lord's Amendment.

LORD DAVIES OF LEEK

I should like to support my noble friend Lord Stow Hill. The appointment is for only three years. I do not wish to accuse anyone of malevolence or of any wrongful action against an individual, but I think that this power should not be put in the hands of the Executive. Here we are in a new field which overlaps into industrial affairs. We are trying to manage human affairs by Act of Parliament. Although it may sound a little ponderous, I think that no one should be removed without the approval of Parliament. Some such action should be taken to protect these people from any Government who might take a different point of view. As for misbehaviour, my noble friend knows that in this country, fortunately, that seldom happens. It has never happened with Lord Chancellors; or it has happened only once in history, when a Lord Chancellor used his Great Seal to cook pancakes for his mistress. I am quite sure that nothing like that would happen in modern times. I think this power should be vested in Parliament and not in the Executive.

3.15 p.m.

THE LORD CHANCELLOR

The noble Lord, Lord Davies of Leek, is quite wrong in what he said about Lord Chancellors. I think the waffles story is probably apocryphal. If the noble Lord would like to come and see the Great Seal, I will not actually let him try to cook waffles on it, but I think he will see that the story is inherently unlikely. There were, of course, a great number of other scandals relating to certain of my predecessors which I will not now recount to your Lordships, but the noble Lord is quite wrong in thinking that the Office is quite so free from blame as he supposes.

If I may now turn to the substance of Lord Stow Hill's Amendment, I must apologise to him for having been absent during the first two minutes of his speech but I think I heard enough of what he said to be able to answer him. I must first point out that, as at present drafted, it is not true that, as was said by the noble Lord, Lord Davies of Leek, the appointment is for only three years. What paragraph 4 says is that a person shall not be appointed for a term of less than three years, which is, in a sense, quite the opposite. It would be for not more than three years if the period were for only three years, but it says that the period is not less than three years. In a sense that supplies the answer to what has been said, because it is by no means certain that these appointments will be for only three years. Obviously in cases of gross misbehaviour I do not suppose anyone would doubt that someone ought to have the power to remove.

I am afraid hat I must also press on the Committee the view that it is necessary, unfortunately, to deal with incapacity in the same way. By"incapacity"I mean something more than incompetence. Let me give an example—this is not an imaginary example, but I will not specify it; it is something which I have known to happen —that a person holding a judicial office has a stroke. People of our age do have strokes. I knew of one man who was quite unable to speak or write. He could not resign and no one could take it upon himself to say that he knew that this person would resign if he had the chance. Some people suffer from mental incapacity almost without warning, and it is not really satisfactory to have someone in office who cannot resign but who is incapable of carrying out his functions even though his term of office may be relatively restricted.

I think that there is a good deal in the constitutional point put by the noble Lord, Lord Stow Hill, and it is for this very reason that, if the Committee agrees, we are changing the original form of words appearing in the Schedule to the form of words contained in the next Amendment in the name of my noble friend Lord Drumalbyn. There is a good deal in that constitutional point. The phrase we have chosen,"incapacity or misbehaviour"has a very respectable precedent because when I introduced the Courts Bill into this House we were going to remove the circuit Judges for inability or misbehaviour. It was the official Opposition in another place which suggested substituting the words"incapacity or misbehaviour", which we accepted as an improvement on the wording in the Bill. So these words which we have chosen are the Opposition's own words, although admittedly applied to circuit Judges and not to lay members of any court. The industrial tribunal chairmen are subject to similar powers of removal. I quite take the noble Lord's constitutional doctrine, which I accept, but on reflection I would ask him and the Committee to take the view that, defined as it will be in the amended form—where I think it is not open to objection on constitutional grounds—the power is a necessary reserve power to be held in the hands of the Lord Chancellor, where I trust it will be safely held, even though he is a member of the Cabinet.

LORD STOW HILL

I should like to thank the noble and learned Lord the Lord Chancellor for what he has just said. The only slight doubt in my mind is whether the word"incapacity"would be construed as being limited only to something in the nature of physical incapacity. If it were, I should be absolutely content, but the slight doubt which lingers in my mind is whether it would be so restricted. I entirely follow and accept what the noble and learned Lord says, upon the understanding that that really is the meaning which would be attributed to the word"incapacity"in the courts, if it ever came before them. As I say, I am grateful for what the noble and learned Lord has said, and I ask leave of the Committee to withdraw the Amendment.

Amendment, by leave, withdrawn.

THE LORD CHANCELLOR

This Amendment follows on what we have been saying, and I beg formally to move Amendment No. 275M.

Amendment moved— Page 130, line 40, leave out from ("may") to end of line 3 on page 131 and insert ("remove an appointed member on the ground of incapacity or misbehaviour").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE MINISTER OF STATE, SCOTTISH OFFICE (BARONESS TWEEDSMUIR OF BELHELVIE) moved Amendment No. 275K:

Page 132, line 1, leave out sub-paragraphs (2) and (3) and insert— ("(2) The rules shall be made by the Lord Chancellor, after consultation with the Lord President of the Court of Session.")

The noble Baroness said: This Amendment provides that N.I.R.C. rules will be made by the Lord Chancellor after consultation with the Lord President of the Court of Session, instead of separately by the two authorities for England and Scotland. The separate rule-making powers provided by paragraph 18(2) and (3) are comparable to those governing the High Court and the Court of Session. In the case of the High Court, the different traditions of English and Scottish law, together with the fact that the two courts are separate, require that the rules be made by different authorities, but in the case of the N.I.R.C. there are no such different traditions, and though one or more N.I.R.C. judges will sit only in Scotland there will be no separate Scottish branch, and accordingly separate rule-making power is unnecessary, but specific provision has, of course, been made for consultation with the Lord President. I beg to move.

LORD HOY

It all seems a little difficult when the Amendment says that the Lord President will be taken into consultation. I assume that the reason for this is that we can always question the Lord Chancellor but we cannot question the Lord President. If it does not mean any more than that. I have no objection, but I should not like to see the Scottish courts being in any way looked upon as a secondary consideration. I assume that it is for the reason I have mentioned that it is not done jointly.

THE LORD CHANCELLOR

The noble Lord is quite right about this. The Lord Chancellor can be questioned and the Lord President cannot. There is a slightly different tradition, as my noble friend pointed out and as the noble Lord will know, between Scotland and England, because Scotland has no Lord Chancellor and is therefore driven to choose either a judge or a minister, but cannot have the hybrid who is both.

On Question, Amendment agreed to.

3.22 p.m.

THE EARL OF DUDLEY moved Amendment No. 275N: Page 132, line 15, leave out from ("shall") to end of line 17, and insert ("keep its proceedings as informal as appears to the Court to be appropriate in the circumstances of those proceedings.")

The noble Earl said: The Consultative Document made two specific references to the proposed character of the Industrial Court. Paragraph 17 says: It is intended that access to the N.I.R.C. and the I.T.s should be easy and their proceedings relatively informal. Paragraph 25 reiterates that: The procedure of the N.I.R.C. and the I.T.s should be as informal and as free from technicalities as possible. In the Bill before the Committee, as drafted, Schedule 3 paragraph 18(6) requires that the Court: shall seek to avoid formality in its proceedings so far as it appears to the Court to be practicable to do so. And the explanatory paper distributed by the Department of Employment at the time of the publication of the Bill commented: It is proposed that the procedure of the N.I.R.C. should be as informal as is practicable.

There can be no doubt that the Government wish the proceedings of the Industrial Court to be informal, nor any doubt that they intend the Bill shall spell that out. The noble Viscount, Lord Ward of Witley, and I propose this Amendment for two reasons. First, we believe that to require the Court to be informal will be more suitable for the purpose of the Schedule than to require the Court to seek to avoid formality. Secondly, we think that the adjective"appropriate", as applied to informality or to the avoidance of formality, is likely to be more helpful to the Court than the adjective"practicable".

If there is to be a legal framework for industrial relations, the Committee will agree, I am sure, that the Court should be informal. It is to be hoped that it will be a modern court, in the sense of dispensing with many trappings of our traditional courts and with any mediaeval or legalistic mumbo-jumbo. One would expect the Court to be broad-minded about the appearance, manners and behaviour of parties or witnesses to a complaint. It may be that the Court can conduct its business more appropriately without wig and gown and without formal procedures, and justice can thereby be done and be seen to be done more rapidly, more cheaply and more conveniently.

The Government seek an informal Court, but I suggest to the Government and the Committee that informality need not necessarily always be achieved through the avoidance of formality. For instance, there may be judges whose easy and informal attitudes depend upon the familiar contact of wig and gown and who would be uncomfortable and unhappy and therefore more formal without those old friends. Moreover, to require the Court to avoid formality poses the question of what action it should take to fulfil that requirement. Though clearly there are varying degrees of informality, the Court should be able to decide without much difficulty whether it is or is not being informal. but the answer to whether it has succeeded in avoiding formality may not be so clear-cut. And if the members of the Court turn for help to the Schedule, they will find that the only yardstick by which they can resolve to what extent to avoid informality is whether it is practicable to do so. The difficulty with the adjective"practicable"is that it can apply to so many contradictory alternatives. To comply with the wording of the Bill, the Court may have to decide whether to leave off wig and gown, to shed coat and tie, to allow parties to speak to the Court while seated, or even to use first names. All these actions are"practicable", and all are less formal than the contrary, and there-for ex hypothesi all could be required by the Bill to become practices of the Industrial Court.

To remove these difficulties, the yardstick with which the Court should measure the degree of informality required in the conduct of its proceedings should not be whether the avoidance of formality is"practicable"but whether the informal action or behaviour is"appropriate". I suggest to the Committee that, the word"appropriate"would give more flexibility to the Court than the word"practicable", and it seems to be right that the Court should have more discretion in the conduct of its business than the wording of the Schedule allows. There may well be certain circumstances Which both the Court and the parties to a complaint will feel that they require and justify somewhat less formality in the proceedings than usual. There are also, for example, personalities whose informality might encourage confusion or delay or disturb the proceedings of the Court and who could best be allowed to speak by the Court using more formal proceedings. I think that the Government would be wise to give the Court more room for manœuvre. That is why the noble Viscount and I commend to the Government, and to the Committee, the use of the word"appropriate"instead of"practicable"as a measure of the degree of informality required in the circumstances of the proceedings. I beg to move.

LORD DAVIES OF LEEK

I should like to support the noble Earl and the noble Viscount in this Amendment, having had experience in the past of taking people before the systems of tribunal that have grown up. Since this legal framework is entirely new and consequently it is an emperical and pragmatic one, I believe one should try to aproach it as informally as possible so that the layman appearing before this new type of court should not feel that his environment is a strange one. Many of our people who have not had the opportunity of the magnificent background of education of learned judges may have plenty of wisdom and may be very able people, but in a very formal atmosphere they do not have the ability to put a case forward. Perhaps the Government would look at the Amendment of the noble Earl and his noble colleague to see whether something can be done in this direction.

LORD BROWN

I believe the Bill is quite right as it stands. There is a school of thinking in the business schools of America that constantly reiterates the need for"informal organisation '. I never tire of pointing out that the two words"informal"and"organisation"represent a contradiction in terms. You cannot embrace informality. All you can do if you want to be informal is to give up formality and to stop using organisations and institutions that might otherwise have been used. You cannot embrace informality, and the moment you begin to define it it becomes formality. I believe the Bill is quite right as it stands and should be left in that condition.

3.32 p.m.

LORD CONESFORD

I thought I agreed with the last speaker, but I came to the opposite conclusion. What I do not like about the words in the Bill as they stand is that they suggest there is something wrong with formality. There is nothing necessarily wrong with formality. What is wanted in a court is predictability. People want to know the sort of way in which the court is going to behave and what they can expect from the procedure. Very often the court develops its own lines of procedure: in fact the previous paragraph has stated that the court will have power to regulate its own procedure. I rather doubt the need for this paragraph (6), but, if it is to be there, I do not think the words are very good on account of the suggestion that there is something intrinsically wrong with formality in a court. There is nothing wrong with formality in a court, if what is meant by formality is predictability, that the court generally behaves in the same way and has its rules and customs of procedure.

On the whole, I think that my noble friend who moved this Amendment had a sound basis for his observations. I think his words avoid some of the difficulties in the Bill as it now stands. I am not entirely happy about them, and indeed I would not be excessively unhappy if the whole paragraph were omitted; but, if the paragraph is to appear in some form, there is some substance in the criticism that has been brought to light by this Amendment.

LORD DOUGLASS OF CLEVELAND

I should not have spoken if Lord Cones-ford had not spoken, and, with his legal experience, I value what he has said about formality. However, my legal experience has been through arbitration courts and particularly redundancy courts, whose purpose it is to judge whether or not a man is entitled to redundancy payments. Nine times out of ten when people come into such a court they are apprehensive, as they might be with a normal legal procedure; but it is noticeable, that as soon as the chairman tells the applicant that things are being run on an informal basis the applicant accepts the informality and expresses himself as he wants to without any regard to the legal trappings or phraseology. I suggest that if these courts are to be conducted on a formal basis they will have a practical value to people with legal knowledge, but they will have rather a bad effect on applicants who come without legal knowledge but with a vast knowledge of the practical problems they are facing. It is for that reason that I support anything which allows these court proceedings to be conducted informally, although with an awareness of the responsibility that the judgment is important at the end of the day. I am for informality every time when dealing with courts of this character.

LORD SHINWELL

The only assembly I have ever attended where there is complete informality is your Lordships' House. Nevertheless we have to abide by the Standing Orders, as we have seen only this afternoon, when we assented to a Motion on Standing Orders moved by the noble Earl the Lord Privy Seal. Quite frankly, I have the greatest difficulty in understanding what"informality"actually represents. If a case has to be tried and if an argument has to be presented—which presumably is the purpose of the Industrial Court—either related to redundancy, an unfair industrial practice or any other allegation, obviously there must be certain prescribed rules which determine how the case should be presented and how it should be dealt with by those who are responsible in a judicial capacity.

I could understand the noble Earl when, in moving the Amendment, he referred to"scrapping the wig and gown". He used an expression that I would never have dared to use, certainly not in the presence of the noble and learned Lord the Lord Chancellor—though he was not present at the time—namely,"legalistic mumbo-jumbo". What a caricature of the courts of justice in this country! I see that the noble and learned Lord the Lord Chancellor has now arrived, and perhaps I may explain to him that when he entered the Chamber I was making no accusation against Lord Chancellors in general or in particular. I was merely referring to the noble Earl opposite, who in the course of his argument said that these Industrial Courts might be less formal than a normal court of justice and who actually referred to"legalistic mumbo-jumbo I had just suggested that this was a very odd expression to use in the presence of the noble and learned Lord the Lord Chancellor, who un-fortunately was not present— and then he suddenly appeared.

It seems to me we are becoming involved in a misunderstanding. It matters not which court we prescribe, whether it is a normal court of justice or an assembly of persons who are called upon to come to a decision on the facts presented to them. There must be formality of some kind. Yes, scrap the wig and gown: I accept that there is no reason for those. But what do we mean by"informality"? Does it mean that the members of the Court may indulge in smoking, or that they might perhaps at some stage ask an attendant to bring in alcoholic refreshment? You cannot run a court in that fashion. As I said earlier, even in this Assembly, which is the most informal assembly I have ever attended, there are rules prescribed to which we have assented. It seems to me that, however much we seek to depart from formality and to achieve informality, in the long run we have to accept that there must be rules for any court created as a result of legislation.

3.40 p.m.

LORD JANNER

I should like to support the contention that has been put forward by the noble Lord who has just spoken. It seems to me that the question of informality is one which has to be defined somehow or other for whatever court or tribunal may be sitting. The way in which the word is used here indicates that the Court could decide for itself what is formal and what is informal. I think that some thought should be given to the question of a definition of how far the Court can deviate from the normal rules that prevail in a court or in a tribunal. For example, a large number of appeals are heard, and indeed allowed, on the ground that a court has not adopted certain rules which it should have adopted and should have considered in the course of coming to a verdict. If we are going to leave it entirely to each court to decide for itself what kind of procedure it is going to adopt—whether evidence should be given in a formal way or not, and so on—then I think there must be some rules which must be complied with by the Court.

I am all against many of the formalities that prevail in other courts. But when it comes to the question of dealing with these cases, I quite agree that an individual coming to a court of this nature should feel at ease. Perhaps the Court itself, or the tribunal, should be held in a place which makes the individual feel that he can talk freely. But what will happen assuming that he is pressed to give certain evidence which is contrary to the kind of evidence which could be asked of him should there be rules of evidence prevailing? I put this matter before your Lordships because I think there must be some guidance for the people who are presiding over the tribunals, and there must be protection for the individual who comes before the tribunal in case they overstep what would be right in accordance with those rules.

THE LORD PRIVY SEAL (LORD JELLICOE)

Perhaps I may make a brief entrance into the discussion at this point; and it will be brief because my noble friend Lord Lothian wishes, with your Lordships' consent, to repeat a Statement that is being made in another place. With the possible exception of my noble friend Lord Conesford and the noble Lord, Lord Janner, I do not think there is a great deal of difference between noble Lords on this matter. I happen to agree with my noble friend and the noble Lord, Lord Douglass of Cleveland, that there is a great deal to be said for this particular Court, whether or not we agree with its being set up—and I know that there are noble Lords who do not agree—acting, on the whole, in as informal a manner as possible. Nevertheless, I entirely agree with my noble friend Lord Conesford that it should, like any court, be predictable, so far as possible; and clearly minimum rules of procedure (this, to a certain extent, answers the point put by the noble Lord, Lord Janner) are essential to the administration of justice.

But, that said, it is our belief that it is unnecessary, and indeed undesirable, that the Industrial Court should be tied to the trapping, as it were, of the High Court. This means, for example, as I think my noble and learned friend has already explained to the Committee, that judges in this Court will not robe, and the formal rules of appearance will not be applied. Certain of the features of the Industrial Court which will make it a plain man's court are clearly set out in the Bill—for example, its composition—and others will be covered by its rules of procedure. It is our belief that it is, on the whole, desirable to insert in the Bill, for the guidance of the Court and to indicate the intentions of Parliament, an enjoinder that the Court should avoid formality wherever it is right to do so. This does not mean that everyone should be allowed to smoke, chant or do anything else in the court.

Knowing that the majority of your Lordships approve the idea behind subparagraph (6) of paragraph 18 of Schedule 3, and the idea behind my noble friend's Amendment, I find the choice of phraseology here pretty narrowly balanced. In one respect, if one is after informality,"seek to avoid formality"is rather stronger phraseology and rather more positive than"keeping its proceedings informal". On the other hand, especially with the sort of point that the noble Lord, Lord Shinwell, has in mind, it seems to me that"appropriate"is a rather better word than"practicable". What I would suggest to your Lordships—and this is really a fairly semantic problem—is that I should think about this Amendment. My personal instinct at this moment is to keep the first part of the phraseology, …the Industrial Court shall seek to avoid formality in its proceedings so far as appears to the Court", and then to add the words suggested by my noble friend,"appropriate to do so". This is not because it is a compromise, but because I think it would be right. This is the suggestion which appeals to me. What I would propose to my noble friend is that we should have an opportunity of looking at this between now and the Report stage, when I shall be glad to discuss it with him and other noble Lords, and I can come forward with a suggestion on Report.

THE EARL OF DUDLEY

I have no wish to delay the passage of the Bill any further. I hope that, without being semantic, I have drawn attention to the point. I am grateful to the noble Lord, Lord Conesford, and other noble Lords who have supported me, and I apologise if I did not present my argument as well as I might have done. This is a necessary conclusion, because, like Father William, I was stood on my head, and there were various noble Lords who were presenting contrary arguments as mine. So clearly I could not have been putting the arguments as well as I might have done. In view of the generous suggestion of the noble Earl the Lord Privy Seal I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

House resumed.