§ 3.3 p.m.
§ THE MINISTER OF STATE, SCOTTISH OFFICE (LORD POLWARTH)
My Lords, I beg to move that this Bill be now read a second time. The main purpose of the Bill is to make clear that the Secretary of State has power to make regulations requiring education authorities to employ only teachers registered with the General Teaching Council for Scotland. The position is that the Court of Session have recently declared such a regulation, made in 1967 by the previous Administration, to be ultra vices, at least so far as it purported to apply to certain teachers. The regulation was one of a series of measures taken to implement the policy of the Teaching Council (Scotland) Act 1965, which set up the General Teaching Council with functions more or less analogous to those exercised in 1009 another professional field, to take one example, by the General Medical Council.
The 1965 Act itself did not contain any requirement that all teachers had to be registered with the Council. Instead, as was explained during the passage of the 1965 Bill, the intention was to use the Secretary of State's powers under the Education (Scotland) Act 1962 to restrict certain employment to teachers registered with the Council. Accordingly, the Government of the day—that is, the previous Administration—prescribed by regulation that from April 1, 1968, only registered teachers might be employed in education authority and grant-aided schools. This meant, in effect, that anyone who wished to take up or continue in such employment had to register. This requirement was imposed equally on new entrants to the profession and on teachers who were already in service. As was only natural, at the start of this arrangement there were teething troubles. Some teachers already in service objected for one reason or another to the new system and unfortunately a small number took their opposition to the point of refusing to register, with the result that they made themselves no longer eligible for employment and were dismissed by their employers.
Although there was much controversy over these events, I think your Lordships should note that the regulation to which I have referred was not then challenged. It was, in fact, only quite recently that the Court of Session decided that the Secretary of State's powers under the 1962 Act were not sufficiently specific to enable him to make registration a condition of employment for teachers already in post at April 1, 1968. It is this deficiency that subsection (1) of Clause 1 seeks to repair. Without this subsection, the entire apparatus for the control of the profession contemplated by the Aot of 1965 would be ineffective, as some 30,000 certificated teachers in employment since before 1968 would be under no obligation to register or to have registered with the Council.
Turning to the other provisions of Clause 1, subsection (2) clarifies the Secretary of State's power to prescribe registration in the grant-aided sector. This power has not in fact been challenged: hence the expression, "for the avoidance of doubt". Subsection (3) deals with the 1010 interpretation of the amending regulation which requires teachers in schools to be registered. Apart altogether from the issue of vires, a question was raised as to the proper meaning of the regulation. The Court decided that, as had been intended, the regulation applied to certificated teachers in post at April 1, 1968, and not only to teachers appointed subsequently. It is perhaps unlikely that this decision could be challenged in further litigation but the clause is intended to put the matter beyond doubt.
I am sure that noble Lords will agree with the general purposes of the Bill as I have explained them. There is, however, one feature which I know calls for further explanation. That is, of course, the retrospective application of Clause 1 and especially that of the first subsection. I need hardly assure noble Lords that this application was decided upon only after most careful consideration of the possible effects of doing without it, thus making the provisions of the Bill effective only from the date of enactment. If the Bill were not to have retrospective application, public bodies—that is to say, education authorities and the General Teaching Council in particular—would be left at risk of legal proceedings in respect of actions taken by them in good faith and under statutory rules, the validity of which had not then been challenged. I would emphasise that I am speaking not only of the dismissal of teachers who had declined to maintain their eligibility for employment by registering with the Council; I also have in mind the many thousands of annual renewals of registrations that have been effected by deduction of the fee from salary.
The Bill is therefore intended to safeguard public bodies from the possible consequences of acts done in perfect good faith and to place beyond doubt the validity of past registrations, and for these purposes a measure of retrospection is required. I would emphasise, however, that this merely involves restoring the law to what successive Administrations and the public authorities concerned had thought it to be. In other words, the Bill does not impose any new requirement with retrospective effect and teachers affected by it will therefore remain precisely in the position they have assumed themselves to be in since 1968. None the less, some teachers did lose their jobs 1011 by virtue of a regulation which was later found to be defective. The House should not, I suggest, overlook the fact that these people deliberately sought dismissal as a form of protest. But, that said, the Government recognise that some account should be taken of the flaw in the regulations and accordingly we propose that any dismissed teacher who has suffered loss of income should be compensated by an exgratia payment from his previous employing authority who will be reimbursed in full by the Exchequer.
My Lords, I hope I have made it clear why this short Bill is necessary. Its purpose is limited and it contains no new requirements. I beg to move.
§ Moved, That the Bill be now read 2ª. —(Lord Polwarth.)
§ 3.10 p.m.
§ LORD HUGHES
My Lords, I wish to speak briefly in support of the Second Reading of this Bill, the need for which the noble Lord, Lord Polwarth, stated the case very clearly, and without in any way exaggerating any of the circumstances. As I understand it, the scheme for the registration of teachers was part of what the teaching profession wished. As the noble Lord said, they wished to improve the status of their profession. It is a complaint of teachers—and, most of us will agree, a justified one—that over the years their position in the league o; professions has fallen back; and teachers, in comparison with other professions, are generally poorly paid. The belief was that by improving the status of the profession, by giving them a degree of control in the same way as other professions, their case would be helped, if not in the immediate future, certainly in the long run. I know of no suggestion that this scheme should be abandoned. If, therefore, retrospective effect were not given to it, we should almost certainly have to go back to square one and start all over again. This would be a considerable waste of time and money; and most of the money wasted would be that of the teachers themselves.
There is no deception involved here; we are not seeking to change the law retrospectively. I do not think the teachers were in opposition because they were certain of winning a legal action, 1012 but because they disagreed with the idea. They have proved through the courts that the regulation was defective. Whether they sought dismissal to pursue their case or because of strong conscientious feelings on the subject, is immaterial. The Minister has given the undertaking that they will not lose as a result of the action they took. If it had not been for that undertaking I would have wished to have put down or, alternatively, to support an Amendment to make that decision clear. It is not necessary to do so, and therefore we are entitled to pass this Bill in exactly the same form as it reached us from another place.
§ 3.14 p.m.
§ LORD WADE
My Lords, a debate on education in Scotland is not something in regard to which I would normally venture to take part, but, as your Lordships have been made aware, the Bill raises a principle in that it is retrospective in nature. That the noble Lord, Lord Polwarth, has acknowledged. In my view the Bill is clearly retrospective in its effect and intention. One has only to read part of the Explanatory Memorandum to get the gist of the point. I will read an extract:…the Secretary of State's power to make regulations…includes and is to be deemed always to have included on and after November I, 1965 power to prescribe that only teachers registered with the General Teaching Council for Scotland shall be employed in the educational establishments to which the regulations apply.If it is necessary for me to make an excuse for daring to take part in a debate on Scottish legislation, may I say that this is not the first time that I have raised the issue of retrospective legislation. I can claim to be consistent in this matter as I spoke against the War Damage Act of 1965 which dealt retrospectively with the claim by the Burmah Oil Company. I spoke against a retrospective element in the Immigration Act of 1971, and I now find myself speaking on a somewhat similar subject to-day. In this case I think the protests by certain teachers in Scotland, by others concerned about legal principles, and by Members of another place, are fully justified.
Legislation of a retrospective nature is from time to time brought forward for various reasons. Sometimes the Government of the day wish to alter the law to 1013 what certain people thought the law to be, and to do so retrospectively. That is always bad in principle. Sometimes a Government may wish to alter a decision of the courts retrospectively for the convenience of the Government. Both those grounds are objectionable in principle.
It is interesting to compare this Bill, although so different in many respects, with the War Damage Act of 1965. Your Lordships will remember that the point at issue was the claim for compensation by the Burmah Oil Company. There are several similarities, although broadly the circumstances are different. In both cases proceedings were started in Scotland. In the case of the Burmah Oil Company the issue was fought out up to the House of Lords as the highest court in the land. The House of Lords decided that compensation was payable. The Government of the day then introduced a Bill to alter the law retrospectively. The House of Lords was put in an invidious position because the Lords, in its legislative capacity, was being asked to overrule the decision of the Lords in its judicial capacity and to do so retrospectively. The legal circumstances here are slightly different. The issue came before the House of Lords and doubt was expressed as to whether regulations were ultra vires. It was the decision of the Court of Session that led to the introduction of this Bill.
But there is another respect in which a comparison is interesting. In the case of the Burmah Oil Bill it was not thought fit to throw out the Bill on Second Reading; but an Amendment was introduced on Committee stage to reject the main clause in the Bill. I suggest that that course might be considered here. I am conscious of the point which the noble Lord, Lord Polwarth, has made about compensation, and that of course must be taken into account. It seems to me in this case it would be appropriate to consider the matter further, by way of amendment in Committee. Some of my noble friends have this point in mind in order that it might be considered further on the Committee stage. I realise that there may be other arguments relevant to the merits and de-merits of this Bill; but I believe that the retrospective nature of the Bill should not go unchallenged.
§ LORD HANKEY
My Lords, I would hesitate to intervene in this debate if I 1014 were not a real admirer of Scottish education. I think the Scots really have got something which I should like to see copied in England. I should like to ask for one or two explanations as we let this Bill have its Second Reading. When we say "registered teachers", do we mean registered in Scotland? Are they necessarily Scottish teachers registered in Scotland, or are teachers registered in respect of the whole of the United Kingdom? Are we in this Bill forming a sort of closed shop for Scottish teachers in Scotland, and would there be any danger of the same thing happening in England?—because I should regard that as a great disaster. Secondly, I have a serious philosophical doubt as to whether the appointment of teachers should be restricted to registered teachers, because I believe that the enthusiastic amateur on some strange subject like teaching languages with tape decks may have something quite particular to contribute. After all, in these days when we are trying to make our people more internationally minded may it not be desirable occasionally to get a French teacher or a German or an Italian or someone else? Is it sufficient to enable that to be done under the exceptions clause, and do we think that is a complete let-out? My Lords, I am only asking for information; I hope I have not prolonged the debate unduly but I think it is a good thing to express an occasional philosophic doubt.
THE EARL OF BALFOUR
My Lords, may I make just one or two points here? First of all, as a member of a local authority I was firmly convinced, until this Bill was produced or until that importation took place, that only teachers registered with the General Teaching Council of Scotland should be employed by the educational establishments. The very fact that this Bill has removed any doubt will remove a lot of worries from local authorities, councillors and officials, and I am grateful that this doubt has been removed. As to its being retrospective, I think that if it had not been made retrospective all sorts of problems could have crept up in regard to the carrying out of functions by local authorities which they thought in any case were according to the law.
§ LORD CHORLEY
My Lords, I do not take quite such a strong view against 1015 retrospective legislation as does the noble Lord, Lord Wade, although I think that what one might call the prima facie case is totally against it. However, when it comes up I think one wants to judge it on its merits, and I should have thought that in this case there was quite a strong argument in favour of retrospection. What I am not quite clear about is how far the reinstatement of those teachers who were in effect dismissed under what was thought to be the law is going to be carried. The noble Lord, the Minister who introduced the Bill, said that they will be compensated. That is rather a vague expression. Compensated monetarily, no doubt, in respect of the time during which they were off work, so to speak; but is it perfectly clear that they will be restored to their jobs, which seems to me to be very much more important? Before I am converted to this Bill I feel that that ought to be made clear.
§ 3.24 p.m.
§ LORD POLWARTH
My Lords, I am grateful to those noble Lords, led by the noble Lord, Lord Hughes, who have supported me in the view that this legislation is necessary. I fully accept the sincerity of the arguments of the noble Lord, Lord Wade, speaking as a legal man, and I should hate to join issue with him on the legal implications of this matter. This problem of retrospection was set out extremely ably and fully in another place by my honourable and learned friend the Lord Advocate in a brilliant and cogent speech covering a considerable length of time. He set out the arguments in a way in which I have not the ability to do; nor, I am sure, would your Lordships have the patience to listen. I would simply say, recapitulating the reasons for the need for this small element of retrospection, that Parliament is seeking to establish what has always been understood to be the legal position. The Bill seeks retrospectively to correct a technical defect in a statutory provision which has only recently come to light and in the face of which significant actions in good faith have already taken place—action by successive Secretaries of State, by local authorities and by the General Teaching Council which, if they were called in doubt now, could lead to considerable disturbance, expense and interruption of all kinds.
1016 One or two specific points were raised. The noble Lord, Lord Hankey, asked whether this was a closed shop of the General Teaching Council. My Lords, the answer is that it is not a closed shop. The General Teaching Council, so far as I know, will admit any teacher from anywhere in the world who satisfies certain criteria of experience and ability which I am not qualified to go into in detail here. It is certainly not a closed shop for Scots, but it relates only to teaching within Scotland; it has no effect on teachers outside Scotland. He also raised a question about what he called the "enthusiastic amateur", perhaps from overseas, who had something special to contribute or who had some special skill. Here again the fact is, as I understand it, that registration is required, but the General Council will take into account the specific abilities. They are not hard and fast about what the teacher can offer. I am well aware that a great deal of what I learned at school probably came from teachers who would not have begun to satisfy the qualifications required at the present day.
My Lords, on the final point raised by the noble Lord, Lord Chorley, about reinstatement, may I say that I do not think there can be any question of requiring a local authority or other employer to reinstate one of the handful of teachers who were dismissed; their places would undoubtedly have been filled. They are not eligible for reappointment as teachers in Scotland unless and until they seek registration. But if they will seek registration with the General Teaching Council, then I should envisage that there would be little difficulty in their qualifying to find another place in the teaching profession. With those remarks, my Lords, I hope that your Lordships will agree to give the Bill a Second Reading.
§ LORD CHORLEY
My Lords, from what the Minister has said it is quite clear that there would be no victimisation—that is what I should like to know.
§ LORD HUGHES
My Lords, if the teachers were to be given the opportunity of further employment they would, of course, have to do what at present they have declined to do; that is, to register.
§ LORD POLWARTH
Yes, my Lords, I thought that was what I had made clear. It is up to them to seek registration.
§ On Question, Bill read 2ª, and committed to a Committee of the Whole House.