§ 12.42 p.m.
§ THE MINISTER OF STATE, SCOTTISH OFFICE (LORD POLWARTH)
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Lord Polwarth.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD ROYLE in the Chair]
§ Clause 1 [Employment of teachers]:
LORD BEAUMONT OF WHITLEY moved Amendment No. 1:
Page 1, line 9, leave out ("(and shall be deemed always to have included power on and after 1st Novembr 1965)").
§ The noble Lord said: In discussing this Amendment I think it may be for the convenience of your Lordships also to discuss the other two Amendments standing in the name of my noble friends and I since they all deal with one subject, the retrospective nature of part of this Bill. I much regret I was unable to be here on Second Reading, having then been taking a small rest-cure in the tranquil retreat of the Isle of Ely. My noble friend Lord Wade put forward much better than I would have done, albeit more mildly, our fundamental objection to this part of the Bill. The 1970 general principle is clear and, I think, would be accepted by all Members of your Lordships' House. The principle is that retrospective legislation is always bad and if it can ever be justified, which to my mind is doubtful, it can only be justified by the very strongest possible reasons.
§ If I may, I should like to recite the position as I understand it. In 1963 the Wheatley Committee recommended the establishment of a General Teaching Council for all teachers in Scotland, modelled very broadly on the General Medical Council for doctors. In 1965, the then Labour Government passed the necessary legislation with all-Party support. However, there was a substantial section of the teaching profession who were not happy about the G.T.C, and had every intention of ignoring it; so in 1967 a regulation was issued to the effect that all teachers must register, on pain of dismissal. In the end 20 teachers were so dismissed and at this point one of them, a Mr. Malloch of Aberdeen, decided to contest the right of the Government to take away the existing vested rights of a teacher who was already in the profession and whose qualifications were uncontested. Finally, the Inner House of the Court of Session (the highest court in Scotland) ruled, as had all lower courts, that the Government could not force Mr. Malloch, or indeed any other teacher, to pay a fee to preserve his or her existing rights as a member of the profession. This Bill before us to-day has now been introduced to say that from henceforward the Government have this right in this respect, that is, the right to insist—which is tolerable legislation—and also to declare that it has had that right, contrary to what all the courts said, since 1965—which I submit is intolerable legislation. It is this latter part of the Bill which our Amendments are designed to remove.
Various reasons are given for this legislation. The first is that it was what Parliament always meant should happen. I maintain that this argument is both irrelevant and untrue. It is irrelevant because if that is what Parliament meant, it is certainly not what Parliament said and, as the Lord Ordinary said in his judgment:
I start from the premise that it is necessary to find in the 1962 Act"—
to which reference is made in Clause 1(1) of the Bill—
clear and unambiguous language evincing Parliament's intention to empower the Secretary of State to encroach on the vested rights of teachers in the way which he has done".
It is quite clear that there is no such clear and unambiguous language. The noble and learned Lord, Lord Cameron, said on June 1, 1973, that if Parliament had intended to make registration compulsory under pain of loss of employment for failure to register, Parliament could have said so, and it would have been easy to do so; but Parliament has done nothing of the kind. The noble and learned Lord, Lord Reid, said that we were not referred to anything in the Teaching Council Act of 1965, and I have found nothing to indicate any intention that registration should be made compulsory or that it should be made conditional for the continuing employment of certified teachers. The noble and learned Lord, Lord Wilberforce, said:
I find it hard to believe that it could really have been intended that men and women validly qualified by certification before the regulation was enacted were ipso facto to be deprived of employment without regard for vested rights.
I repeat that these are all parts of judgments delivered by the noble and learned Lords in their judicial capacities, and I think they establish beyond any doubt that Parliament did not say that it intended this to happen, whatever various Members of Parliament and of the Government at the time had intended.
I said earlier that I maintain the argument that Parliament always meant this to happen was irrelevant, because in fact Parliament did not say that. I also believe it is untrue and, as Mr. Bruce Gardyne most trenchantly pointed out in another place, the then Secretary of State, Mr. William Ross, did not believe that he was so empowered, on all the evidence—that is, to take away these rights. The critical evidence for this statement is to be found in the minutes of the General Teaching Council on October 28, 1966, which state:
The Secretary of State was perfectly willing to implement this recommendation…
that is, the recommendation in paragraph 128 of the Wheatley Report that registration with the Council would be obligatory on all teachers—
without reservation as far as the new entrants were concerned, but was of the opinion that existing teachers must be registered either free of charge or for a merely nominal fee. In reaching this decision the Secretary of State was mindful that teachers had reserved rights and that he considered it inequitable that they should be asked to pay to preserve these rights."—
and so say I.
§ Another reason that is given as justification for retrospection in this case is that if you do not have it the local authorities, which since 1971 have been required by the Government to deduct the registration fees at source from teachers in their employment, could be held to have been acting illegally and could be subject to possible action for damages. It is a point. But if the Government concede, and if they have any decency and respect for the rule of law they must do so, that retrospective legislation in principle is wrong, I do not believe it is beyond the ingenuity of the noble Lord, Lord Polwarth, and myself to devise an additional clause for this Bill by the time the next stage is reached to deal with this point. If there are any objections of a technical nature to these Amendments I should be happy to come back at a later stage; and I have some suggestions which we can possibly discuss before the next stage.
§ My sole aim to-day is to get the Government's agreement in principle, or, failing that your Lordships' agreement in principle, that the retrospective part of this legislation should be exercised. Finally, we are told that it is all right because the dismissed teachers will be compensated. This is nonsense. There is no such thing as adequate compensation for the destruction of a career which in many cases is also a vocation. Retrospection is an evil; it is a breach of the rule of law which, in its turn, is an essential element of our civilisation. I should be most interested to know the private thoughts of the noble and learned Lord the Lord Chancellor about this Bill.
§ These Amendments were put down in another place and were defeated. It is unusual and, I firmly believe, undesirable to make a practice of repeating in your Lordships' House a point which another place has already decided. But I maintain among many useful roles that your Lordships' House can play not least is that of making another place look again when 1973 they transgress, as all sovereign bodies are tempted to transgress, the bounds of constitutional propriety. Miss Mary Holt in another place pointed out the implication of this Bill: any time anybody successfully challenges the pretensions of the Government in a court of law and is proved to be right, the Government can merely come back and pass retrospective legislation to change the situation. This would be intolerable if it became a practice; I maintain that it is intolerable in any one instance. I beg to move the first Amendment.
§ 12.52 p.m.
LORD BELHAVEN AND STENTON
I find myself in the rather unusual position of supporting the Amendment moved by the noble Lords on the Liberal Benches. Although on the face of it this is a rather small point, it is a matter of principle and is a good deal bigger than it looks. Mr. Malloch fought the might of the Government, as I understand it, right through to the Court of Session, which found in his favour. We in your Lordships' House are now to change the law retrospectively so that the Government will have won after all. Mr. Malloch and his colleagues are being offered compensation—and so they should be, if we are going to do this. For all that, I do not like it. Compensation and bribes seem to be rather similar in the context of what we are deciding to-day. I can hear somewhat less reputable people than your Lordships saying, "Do not insist on your rights, old boy, and we will see you are all right and that you do not lose by it". I am sure that that is not what Her Majesty's Government have intended and I would not impute base motives to anybody in your Lordships' House. However, that is how the Bill comes out, and what people might be led to think was intended.
We are told that the law is not what the Government thought it was. Any of your Lordships who have been to law may have found that the law is not what they thought it was: and, having found that the law was not what they thought it was, they have lost. Her Majesty's Government are in the unique position of finding that the law is not what they thought it was and then being able to change it back for five, six or 10 years, or whatever they like, so that the law becomes what they thought it was. It seems to me that on 1974 this matter the Government are appearing to take the attitude of, "heads I win, tails you lose", and that an individual citizen who takes the trouble to challenge the Government in the courts of this country is embarking, if this principle is allowed to be established, on a rather futile exercise. It is a very expensive and worrying business; it is no use pretending that going to law is anything else. Mr. Malloch won and now he is going to be told that he has lost, anyway. I thought that we had established the principle in this country that the law stood, and that people could go to it for justice. This case concerns only a £1 registration fee, but the next time we may have retrospective legislation which covers far more than a £1 registration fee. I hope that Her Majesty's Government will seriously consider what they are doing. It shows —and I must say this—a staggering disrespect for the rule of law which we ought not in this House to allow. I hope Her Majesty's Government will see the danger of the road which they have chosen; if they do not, I urge your Lordships to support the Amendment.
§ LORD SOMERS
I cannot say that I often agree with the views expressed from the Liberal Benches; but on this occasion I think there is a certain amount of truth in them. I have never liked retrospective legislation; it always seems an easy way of getting over things which should have been dealt with in the past. In this case I should be grateful if the noble Lord, when he replies, would say exactly what good this is going to do—because it is not going to make good any defective teaching that may have taken place since November, 1965. That is done and it cannot be helped. If it is not made retrospective, it is most certainly desirable that there should be the power to avoid defective teaching in the future. But I cannot see what can be done to remedy the past. Therefore, it seems to me there is no point in having retrospective legislation.
§ 12.58 p.m.
§ LORD GARDINER
On personal grounds, there were particular reasons why I did not want to attend this House to-day, and Scottish education is certainly not one of my subjects, but anybody who carts about the rule of law must support the principle behind these Amendments. 1975 A relative handful of Scottish teachers, having correctly taken the view that they were not bound to register, and that view having been upheld by the courts, have now lost their livelihood and vocation in life. This is something which cannot be justified unless it can be said that there would be such administrative difficulties in taking another course that this is the only practical thing to do. I do not believe that retrospective legislation is ever justifiable in the criminal field; and I believe there is a heavy onus on anybody who contends, as we did when I was in office in the case of the Burmah Oil Company, in the civil field.
One case in which on the grounds of administrative difficulties I thought retrospective legislation was justified was when some years ago it was discovered that for a few years everybody had been paying their television and wireless licence fees unnecessarily because the Ministry had forgotten to make the order. There were only two possible courses to take. One was to introduce retrospective legislation providing that the order should be deemed to have been made some years before; the other was to pay everybody back what he had paid out in television and radio licence fees for a number of years and then to impose taxation so as to provide from the taxpayers the same amount of money—because the B.B.C. could not be run without money. Then it would have been necessary to impose additional taxation to provide for the vast administrative task of paying these relatively small sums of money back to millions of people throughout the country. That I think was a case in which—while those who pay taxation and those who have television and wireless licences are not necessarily the same people, broadly speaking they are the same people —the course taken was in a sense the only sensible course to take; otherwise those people would have had to pay to the Government, in the form of additional taxation, more than they would have received back.
This is a difficult case to justify. It suffers of course one common feature with the Burmah Oil Company case, in that they were both cases in which, whether or not under the influence of their Department, Ministers when in office in both the major Parties took the 1976 same view. So of course when it comes to retrospective legislation the two Front Benches supported each other. Your Lordships may remember that in the Burmah Oil Company case the then Conservative Government had gone so far as to tell the claimants that, while the Government were certain their view of the law was right, if the Company persisted in court action, and if by any chance the Government were proved to be wrong, legislation would be introduced of a retrospective character. I can well believe that there are some administrative difficulties here. We have not been told much about them, but I understand there would be some administrative difficulties if we did not have retrospective legislation.
Of course, it is said that those concerned will be compensated. The points I would make about that are these. First, why is there nothing in the Bill about compensation? Secondly, of what exactly will the compensation consist? Thirdly—and to this point I attach much more importance than to either of the first two: What steps are the Government prepared to take to ensure that these men get their jobs back? If I understood correctly what has been said so far, all that is said is, "Well, if they register they will be entitled to apply for a teaching job again to their education authority." But, as I understand it, the Government do not propose to take any step at all to see that they get their jobs back. Upon whom will they be dependent? They will be dependent on the very people with whom they have been in litigation and who have been defeated by them in the courts. Is it not very unlikely that those local education authorities will not enable them to return to teaching unless the Government are prepared to put considerable pressure on them to do so? In general, therefore, I support these Amendments—and in the Division Lobby if the noble Lord who moved this Amendment proposes to take it to a Division.
§ LORD ELTON
I came to this Chamber as a spectator because I have an interest in education, having taught for ten years, and I thought that that fact would principally keep my attention. But, on inspecting this Bill and these Amendments, I find that my attention is much more keenly drawn to the point of law 1977 which has already been made several times. I merely want to say that, deep as is my concern for education and for the children who undergo it, and warm as is my sympathy with the causes which unite those who sit on these Benches, it will be very hard indeed to convince me that to try to alter the past—something that is impossible—can be justified by the Government. Therefore I hope that we shall have the most cogent and compelling reasons why this should be done. It is a process which has much more in character with totalitarianism than with democracy. I do not believe that it is the intention of the Government either to give that impression or to proceed along that path; but as a practising teacher I feel that considerations are at stake here which go far beyond the case to which this particular Bill applies. I ask your Lordships to consider those very wide implications as well as the important and emotive position of the people to whom this Bill now applies.
§ 1.6 p.m.
§ LORD POLWARTH
The whole of this debate has been directed to the substance of these Amendments, which is that retrospective powers are undesirable and (I think the noble Lord in moving it said) should virtually never be used in any possible circumstances, or, at any rate, not without the strongest possible reason. I will endeavour to convince your Lordships that in this case there is the strongest possible reason why we should seek these retrospective powers. I cannot say that I rise to oppose this Amendment with any enthusiasm, or indeed that I rose to move the Second Reading of the Bill with any enthusiasm. It is not the kind of Bill about which one would wish to wax enthusiastic. It is in some ways an unpleasant Bill. But, of course, medicine is frequently unpleasant. Nevertheless, circumstances may arise where, for the general good of the patient, he must take unpleasant medicine; and there are cases when principle, however strongly adhered to, must take second place to practicalities. Of that I will endeavour to convince your Lordships in as brief remarks as I can make. Nevertheless, a number of points have been raised.
With great respect, I submit that the statement of the noble Lord who moved the Amendment, that the Secretary of 1978 State knew in 1965 that she did not have these full powers, is not correct. In another place (and your Lordships will forgive me if I quote), in Committee on February 16, 1965, the then Minister, now the Right Honourable Member for Lanark, expressed the view clearly, as well as leaving no doubt that registration for all teachers would be introduced. She said:Let me first clear up the extent to which registration by the council will affect the employment of teachers in different types of school. For permanent employment in an education authority or grant-aided school, a teacher must be certificated"—and that was the previous requirement—and we expect that in future he will have to be registered. All this is a function of the Secretary of State under his power to prescribe standards for education authorities or on governing bodies under the 1962 Act.That was said in another place and is clear evidence that the Minister then responsible was firmly of the opinion that this was the position.
Moving on, the noble Lord, Lord Somers, asked to be assured what good this provision would do. The relevant question to ask is: what evil will it avert? I submit, and will try to explain to your Lordships, that these powers are necessary to avert what could be a near state of chaos; and that, surely, must be to the good. I will come to that aspect a little later. It is not a question of teaching method or practice but a question of the regulation of the affairs of the profession. I wholeheartedly agree with the principle that we dislike retrospective legislation; and we try to avoid it on every possible occasion. However, it is necessary to consider the interests of, in particular, the education authorities and the General Teaching Council, and how they would be affected if the provisions of the Bill did not include the retrospective item.
First, I will take the education authorities. In the first place, these authorities would be at risk, as the noble Lord who moved the Amendment has recognised in regard to claims for damages by teachers who refused to register and were dismissed because, under the regulation that has been found to be defective, they were no longer eligible for employment. The noble Lord suggested that it should not be beyond the bounds of possibility —and he did me the honour of suggest- 1979 ing that it should be with my collaboration—to find a way around this point. I can only say that an enormous amount of thought and research has gone into how this can be dealt with. There has been ample time during the passage of the Bill through another place and since it was introduced into your Lordships' House, and I humbly submit to your Lordships that it will be very difficult at this stage to find a means of getting round this point.
The education authorities acted in good faith in implementing a regulation which they and the Government of the day believed to be valid. I suggest to the Committee that those authorities would have serious cause for complaint if they were now left to face the consequences of what was undoubtedly a technical error on the part of the Government. A number of noble Lords have rightly implied that if we are prepared to protect the education authorities from the consequences of an error that was made by their predecessors in office, and made in all good faith, we should show similar concern for the teachers and their future. Undoubtedly this is a matter of great importance. At the previous stage of the Bill I referred to the proposals for the payment of compensation to teachers who had been dismissed, and these points I will not go over again. They will be reimbursed the amount by which their earnings since that time have fallen short of what they would have earned had they remained in their then posts.
I think that the view that these teachers should have a right of reinstatement is disregarding the practicalities of the situation. Places will have been filled by other teachers in the meanwhile. We cannot insist on local authorities placing these teachers back in positions which may no longer be free. All I can say is that the remedy for the teachers, if their livelihood is concerned, is in the first place to register with the General Teaching Council, which they are perfectly free to do, just as any doctor to-day is expected to register with the General Medical Council. That is their remedy and, with the demand for teachers in Scotland to-day, I cannot believe that it will be all that difficult for them to find employment.
§ LORD GARDINER
Before the noble Lord leaves that point can he give any assurance that the Government will use their best endeavours and persuasion with the local education authorities in relation to these jobs, because as he will appreciate, while what they have lost financially is made up to them, if men lose not only their means of livelihood but a vocation like teaching, the essential thing, if any justice is to be done to those who were in the right in law throughout, is that they should get their jobs back. I ask the noble Lord whether the Government will be prepared to use their influence with local education authorities, bearing in mind that, these being the very people they have been in litigation with, there might well be a disposition otherwise not to reappoint them.
§ LORD POLWARTH
I am perfectly prepared to consider the noble and learned Lord's suggestion, though the extent of the powers of the Government to influence local authorities in these appointments I suggest is somewhat limited; but of course the first prerequisite must be registration. I will take that point separately.
There is then the fact that for the last three years local education authorities have been deducting the renewal of registration fees from the salaries of teachers who are required by this legislation to be registered, and this is being done by virtue of the Teaching Council (Scotland) Act 1971. The validity of the 1971 regulations has never been called in question, but the point is that they apply only to teachers who by virtue of some other enactment are required to register. Here we come up against the recent finding of the court that registration is not required for certificated teachers who were already employed before April 1968. If that ruling stands, there must be doubt about the legality of the deductions made from the salaries of between 30.000 and 35,000 teachers, and possibly even about the validity of their registration itself. In this matter, too, the educational authorities acted in complete good faith and we must not now leave them at risk.
I turn to the possible repercussions on the General Teaching Council of the enactment of this Bill without the element of retrospection. This body has 1981 had doubt cast on its actings because the court ruling has struck at the validity of registration which is crucial to the concept, the role and the standing of the Council. Over the years the Council has exercised powers with regard to professional discipline which should properly only be exercised in relation to registered persons. It has received funds from education authorities in terms of the 1971 Act, and it has thereby purported to renew the registration of registered persons. Again, all this has been done in good faith, but its validity could be challenged if the regulation which the court found to be defective is not put right retrospectively.
The idea of a teaching council and its functions was strongly supported by educational interests and, with great respect to the noble Lord who moved the Amendment, I doubt whether it would be fair to say that a substantial proportion of teachers were opposed. It is difficult to say, but perhaps it is some evidence of the support for it, that in the first elections to the Council in 1965 over 88 per cent. of teachers took part in the voting for the membership of the Council. I think that is some evidence of the high degree of support for the idea of the Council as such. Again, the Council has acted in good faith and we cannot allow them to be exposed to charges of illegality because the Government, and indeed Parliament, failed on a technical point.
I have tried to explain the clear reasons—and I think they are convincing —why retrospection is justified in this Bill. But even with retrospection I submit that in this case it is not an offensive use of Parliament's right to legislate retrospectively. It does not introduce any novel proposition; it seeks only to regularise what all along has been accepted by the vast majority of people to be the position. It does not introduce any retrospective statutory offence. It does not deprive anyone of damages already pronounced by a court or already settled. It does not make illegal an act which was legal when it was committed, and it does not interfere with common law principles. Finally, contrary to the views which have been expressed in some quarters, there is no question of the authority of the courts being disputed. In fact by this Bill we are acknowledging 1982 their authority and seeking to cure a defect which they have established.
I have done my best to explain the background and I hope I have succeeded in satisfying your Lordships that in this case the retrospective provisions are not offensive. I think it would be wrong to insist on the unbending adherence to principles, however right in general they are, when these provisions—and I am convinced of this—are for the greatest benefit of all the organisations and the vast majority of individuals concerned in the teaching profession in Scotland. Therefore I must ask your Lordships to reject the Amendment.
LORD BELHAVEN AND STENTON
Before my noble friend sits down, may I raise just one small point. It seems to me that many education authorities, not being lawyers, have committed a tort in good faith. Many ordinary individuals sometimes commit torts in good faith and have to suffer for them. Why should these bodies be exempted? How much money is at stake in damages should these people sue?
§ LORD POLWARTH
The noble Lord is endeavouring to lead me into legal by-ways that I am not qualified to pursue. As to how much money is involved in subscriptions, I cannot give an exact figure, but with the number of teachers I have mentioned and the number of years which have elapsed the figure would be very substantial.
§ LORD BALERNO
We have heard many criticisms and only the one defence. I remember quite vividly the passing of the 1965 Education Bill through this House, and as one who was a bit doubtful about it, I am not quite clear that everybody in this House at that time considered that the Bill made the registration of teachers compulsory. There was no shadow of doubt at that time and it was not until long after that this mistake —if you like to call it that—in the drafting of the Bill was discovered. All of us in Scotland like a bonny fechter and Mr. Malloch who has taken the case right up to the House of Lords is a very fine exemplar of that. But the question before us now is not so much the individual case, which is going to be looked after, but all the difficulties 1983 that my noble friend Lord Polwarth has described to us.
I cannot believe that with the present shortage of teachers the education authorities, or many of them, would be in any way vindictive to Mr. Malloch or the 20-odd teachers who have held out. I do not think this is at all likely to happen. Mr. Malloch and his friends will get adequate financial compensation, and I am quite certain that they will get a good start again. Probably they would not wish to be employed in the same education authority, but with the shortage of teachers I think things will be all right for them.
The points made by my noble friend in relation to Lord Beaumont of Whitley's use of the word, "substantial" I would entirely corroborate. But only a relatively small proportion of the teachers of Scotland opposed the Bill and the fact that 88 per cent. of them voted at the beginning shows what an overwhelming number of teachers wished for this Bill to go through and to be implemented. Their position, and the position of the education authorities who acted in all good faith, should not be put in jeopardy, as it certainly will be if this Amendment is adopted. With all respect to the noble and learned Lord, Lord Gardiner, I see a very close parallel between this and the case of the television licences which he mentioned. It is for those reasons that I would most certainly support the Government against this Amendment.
§ BARONESS SEEAR
We are not really discussing the administrative problem of the local authorities or the inconvenience of the General Teaching Council. Let us be quite clear that what we are discussing is the question of the rule of law. It makes not the slightest difference to the issue whether the gentleman concerned is going to be compensated or whether or not some local authority will take him on and give him a teaching position—that is not what the issue is about at all. What the issue is about is whether, when an Act of Parliament is interpreted in the courts, the ordinary individual citizen can rely on the fact that if he wins his case, he wins. It is always easy to say that in a particular case it is inconvenient, 1984 it is costly, it is not a serious matter if the Government and the Executive override the courts. But it is on the rule of law and on the certainty of the judgment of the courts that all our liberties depend. I know it may seem to be a great fuss over what to your Lordships appears to be merely an individual case of one Scottish school master, but all the great issues of libertarian principles have had to be defended over one particular case again and again and again. This is a slippery slope. If whenever it is inconvenient or costly we say that on this occasion the Government must introduce retrospective legislation and the rule of law defended by the courts has to be sacrificed to immediate convenience, then some day it may be that Governments less well intentioned towards the rule of law will find what will by then be an established precedent—very convenient indeed to undermine the position of the courts on which all our freedom depends.
§ LORD AIREDALE
With regard to the unlawful deductions which the Minister told us about, could we be told what the deductions amount to approximately in each individual case, as distinct from the global sum after you have multiplied each individual case by 30,000? Because I should have thought that the least we could do, these deductions having been unlawful, would be to make them good. If we are to be told that it is administratively inconvenient to do this, all I can say is that it apparently was not administratively inconvenient to make the unlawful deductions at the time. I would hope that these deductions could be repaid to the teachers concerned.
§ LORD FERRIER
I have listened most carefully to what has been said, and have no particular brief for Mr. Malloch who may be an angular personality. But at the same time I appreciate the great difficulties that my noble friend the Minister ant my noble friend Lord Balerno have outlined. What we are being asked to do is not only to approve retrospective legislation. My mind goes back to the case of the oil company which the noble and learned Lord, Lord Gardiner, mentioned, which legislation I strongly opposed. But we are also going to enact legislation for something of which I disapprove; namely, the closed 1985 shop, and for that reason, and the difficulties in which I find myself, I believe that unless my noble friend Lord Polwarth can tell us that there is any other way out, I personally will have to abstain.
§ LORD HOY
I should not like it to be thought that we did not have opinions about this matter and I think we have to get it into perspective. When this Council was established, it was established on behalf of the school teachers. They wanted it. They wanted it to give to their profession a standard which was equivalent to no less than that of the medical and other professions of this country. So it was done at their request. When the legislation was going through —and I was grateful to the noble Lord, Lord Polwarth, for pointing it out—there was no misunderstanding in the teaching profession about registration. Indeed, when I think of it, my right honourable friend the Member for North Lanark (Miss Herbison), who later became Lord High Commissioner of the General Assembly of the Church of Scotland, was a teacher herself, so she understood what was being done.
There is no doubt that nobody likes retrospective legislation. I cannot think of anyone who has ever said they care for it, but on this occasion thousands of teachers in Scotland were prepared to abide by what they thought were the rules. Mr. Malloch—and he was entitled so to do—found a flaw and was quite right to take it up because that was the way he felt. But indeed the Council does represent the overwhelming majority of teachers in this country. You can be very selective in taking a speech from somebody next door. I will not do so, though I notice that the noble Lord, Lord Beaumont of Whitley, chose the only speech from the Committee that could be made to square with his case. So far as I am concerned, much as I regret its having to be done, I think it would land the Council, the education authorities and everyone else in sheer chaos unless we agree to do what we do with a little repugnance.
§ LORD ELTON
Forgive me for intruding again, but a solution occurs to me which doubtless has occurred to the noble Lord, Lord Polwarth, and the noble Lord, Lord Beaumont of Whitley. Would it not be possible for the Government to 1986 indemnify the authorities for their wrongful acts undertaken in good faith, and on a test case to pay compensation to those who have suffered therefrom on that scale? Does this not avoid the necessity of retrospective legislation?
§ LORD POLWARTH
Perhaps I could deal with these points. The noble Lord, Lord Elton, raised the question of compensation. I dealt with this matter fully at the previous stage of the Bill and I made it quite clear that there would be compensation to those who had been dismissed. I do not think I should go over that ground again. With regard to the amount involved in repaying fees, which was one other specific question I was asked, I may say that it is not substantial; it is a total for the three years concerned, at £1 a year, of £3 for the years 1971, 1972 and 1973. But this is not just a question of the amount. Surely your Lordships would agree that it would be quite wrong that because a small handful of teachers have opposed the existence of this body and said they do not wish to join it, the State should refund subscriptions to every teacher registered, the vast majority of whom are in support of the aims of this body and have paid their subscriptions willingly. It would be wrong that they should be entitled to be handed back their subscriptions and that the cost of the work of the body during that period should be met from State funds. It is not a question of the amount concerned, but surely a question of principle.
§ LORD BEAUMONT OF WHITLEY
Indeed it is a question of principle, and I think my noble friend Lady Seear was absolutely right to point that out. I am not going to weary your Lordships by contesting, as I might, some of the points made by the noble Lord, Lord Polwarth, and the noble Lord, Lord Hoy. What Parliament thought it was doing has been in dispute all the way through the passage of this Bill, and it is certainly not entirely true, as the noble Lord, Lord Balerno, said, that everyone was aware that it would have this effect, because there are plenty of people who have gone on record in saying that they were not aware of it. It may be that they were mistaken, but they were not aware of it. Nor shall I try to delve into the inner recesses of Mr. Ross's mind. The noble Lord, Lord 1987 Polwarth, has produced one quotation from the Committee stage of the proceedings on the Bill to show that Mr. Ross thought that it would have the effect that the Government afterwards tried to make it have. The noble Lord, Lord Polwarth, has not tried to explain away, nor, I think, can he, the minute of the General Teaching Council which I quoted.
There is another quotation with which I will not weary your Lordships at the moment but which comes from a memorandum in October, 1966, from the Scottish Education Department to the General Teaching Council on the subject of the registration of teachers already in employment in the schools. On second thoughts I will read it, because it would be wrong to say that it exists without telling your Lordships what it says. It is not very long:If steps were taken in advance by the Secretary of State so to adjust various statutory regulations governing employment, salary and superannuation as to make the consequences of failure to register the deprivation of benefits under these regulations, such teachers might contest the propriety of such action on the ground that it infringed their existing rights.The memorandum goes on to say:It will be borne in mind that this conception of the inviolability of existing rights is an essential feature of regulatory provision regarding both teachers' salaries and superannuation, and indeed contributes largely to the complexity of the provision.I would suggest to noble Lords that at the very least the minute of the General Teaching Council and that particular passage from the memorandum show that the question of existing rights and their inviolability had not been thought through, and that in so far as it had, the Scottish Education Department had come to the conclusion that there was no real power to take away existing rights in this particular way.
But now I think I get to the nub of the case. I agree with my noble friend Lady Seear that this is a matter of principle. I should like to make it quite clear that I am in favour of the General Teaching Council, that I am in favour of this Bill, that I accept that a very large majority of the teachers in Scotland 1988 wanted it. When I said it was a substantial minority which objected, I am not going to quarrel about what is a substantial minority or what is not. The fact is that there were rather more people who objected than the teachers' unions or the Government of the time expected. That is quite clear. But I think my noble Friend Lady Seear would agree with me that in a case of this kind "substantial" can well mean one. John Hampden does not have to have too many supporters in his protest to make it worth while.
There are two administrative cases which have been put up against this Amendment. The first I find peculiar; although I in fact said at the beginning that it had some validity, the explanation of the noble Lord, Lord Polwarth, in fact leads me to think perhaps it has not. He said, quite rightly, that it does not deprive of damages anyone who already has been awarded damages by the courts. That is admitted. It does of course deprive of damages the 19 other people who, on that ruling of the court, could feel that they were entitled to damages. Either those 19 people are going to be satisfactorily compensated by the Government, in which case they are not going to sue for damages, or they are not; in which case they should be supported and allowed to sue for damages, because they are entitled to them according to the ruling of the court. So I think that argument fails.
The argument about the administrative chaos, about the repayment of registration fees and dubiety about registration, is, I feel, again quite reasonable, but I think it has been fairly overstated, and I am immensely impressed by the cautiousness of the Minister's words—"could be", "might be challenged", "may be at risk". It is quite clear that the advice from his Department does not show that this will necessarily happen. I do not think that this kind of rather weak argument is a serious reason why your Lordships' House should pass retrospective legislation of this nature against the rights of individuals, and I am afraid that I must take this matter to a Division.
§ 1.40 p.m.
§ On Question, Whether the said Amendment (No. 1) shall be agreed to?
§ Clause 1 agreed to.
§ Remaining clause agreed to.
§ House resumed: Bill reported without amendment.