§ 2.56 p.m.
§ Report received.
§ LORD BEAUMONT of WHITLEY moved the following Amendment:
After Clause 1 insert the following new clause:
.The Teaching Council (Scotland) Act 1965 shall have effect as if in section 6 subsection (1) after the words "as may be prescribed" there were inserted the words "of all persons who at the date when this part of this Act is brought into force are certificated teachers and thereafter".
§ The noble Lord said: My Lords, this Amendment was tabled in an attempt to avoid the individual injustices caused by this—as I think it is generally agreed to be—lamentable retrospective legislation; but since the Government are determined to extinguish the right to sue on the part of teachers who have been deprived of their livelihood I realise that this Amendment will not do and to press it and take it to a Division would be merely to repeat the debate we had on the Committee stage, which is not the normal custom of your Lordships' House. I am not in fact entirely clear as to the Government's reasons for extinguishing the right to sue, since presumably the damages payable in the courts to those teachers who have been deprived of their livelihood would not exceed the amount which would be paid out in ex-gratia payments. I merely want to take advantage of this particular occasion—although I shall be saying a few words on the Third Reading in a few minutes—to ask the Minister one or two questions about ex-gratia payments to these people, after which, and when I have received what I hope will be a satisfactory reply, I shall be asking your Lordships' leave to withdraw the Amendment.
§ The question really is a general one on compensation payable to these teachers. In part it has been answered before, but I think this is the right moment for it to be reiterated for the benefit of your Lordships' House and for the benefit also of those teachers. It is: how far will the compensation go? Will it include all the pay which the teachers would have received from the moment they were dismissed? Will it include the restoration of the pension rights which they have forfeited? Thirdly—and this may be a new question—will it include the costs of those teachers who have taken their case to the courts but have not had the opportunity of going as far as judgment and therefore have not yet been awarded costs? Because it seems to me that these people who sued, and sued rightly as the law was at that time, and who would undoubtedly have succeeded 160 in the courts, as Mr. Malloch succeeded, are entitled to the money that they have spent on solicitors, on counsel's opinions, et cetera.
§ The alternative for them, I suppose, if they are not given compensation, would possibly be to pursue their case through the courts, not with any hope of obtaining a judgment which would give them back their livelihood but merely in order that they should get their costs at the end, as I imagine they would. It would obviously be a much more satisfactory situation if the Government were to say that they were quite prepared to meet these costs. It applies to only three people, I think, although there may be one or two more. I do not know exactly what it amounts to, but it cannot be any great sum. I should be most grateful if the noble Lord would give us a general answer on the question of compensation. I beg to move.
§ LORD POLWARTH
My Lords, while not necessarily agreeing—in fact, while definitely not agreeing—with the account given by the noble Lord of the nature and purpose of the Bill, I am nevertheless grateful to him for having given me notice of his intention to move this Amendment and of some of the points which he wished to elicit. I am sure your Lordships will agree with him that we should not spend time going over the reasons for the introduction of this Bill, although I must reiterate that it was introduced simply and solely to remedy a situation and restore a position which was always thought and believed to have existed since the provisions were originally introduced and until an unexpected legal lacuna was found. We are very conscious of the rights of these few individuals. I do not think there are very many of them; we are not as yet aware of more than another one or two besides the gentleman to whom reference was made. They having resisted registering under these provisions, the authorities they were employed by were obliged to dismiss them. On the question of compensation, I can confirm that the payment they will receive, which will be an ex gratia payment from the authority employing them at the time of their dismissal, will amount to the difference be-between the amount of salary that the teacher might have expected to earn if 161 he had remained in his teaching post from the date of his dismissal until the date of the enactment of this Bill and, on the other hand, his actual income from any employment that he may have had in that interim period and any public sector benefits he may have received which he is not obliged to refund. I hope your Lordships will agree that that is a fair provision.
The noble Lord also asked about superannuation. The arrangements here are that, where appropriate—and by that I mean where the recipient does not come into the provisions of some other scheme; that will of course be taken into account adjustments will be made to ensure that there will be no loss of entitlement under the teachers' superannuation scheme. I think we can rely on the authorities concerned to carry out these arrangements in the spirit in which they are intended to be carried out; and, as I said to your Lordships at the previous stage, any expenditure incurred by them in doing so will be wholly refundable out of Exchequer grant.
There remains the question of the legal costs of those who have actions before the courts and whose actions, on the passing of this Bill, will automatically fall. As to these costs (or expenses, as we refer to them in Scotland) the intention is that they shall be dealt with in the following manner. When the teachers abandon their actions, as presumably they will on the passing of this Bill, they will be entitled to ask the court for the costs or expenses of those actions up to the time of their dropping them. I understand that when a party seeks authority to abandon an action the court has complete authority to dispose of the matter of expenses, and I think this is the right quarter to deal with it. If it is of any guidance, I would say that in the one case which has been disposed of, and to which the noble Lord made reference, the court awarded the teacher concerned the costs of his action against the Secretary of State. I think this is the right way for the costs issue to be dealt with, and I feel sure it will be settled satisfactorily, particularly in the light of the decision made in this one case.
LORD BEAUMONT or WHITLEY
My Lords, I thank the Minister for that satisfactory reply and I ask leave of your 162 Lordships' House to withdraw the Amendment standing in my name.
§ Amendment, by leave, withdrawn.
§ Then, Standing Order No. 44 having been suspended, pursuant to the Resolution of yesterday:
§ 3.6 p.m.
§ Moved, that the Bill be now read 3ª.— (Lord Polwarth.)
LORD BEAUMONT or WHITLEY
My Lords, I am sorry to spend your Lordships' time raising this major point once more, but I think it would be wrong if we gave this Bill its Third Reading without another very short restatement of the reasons why we are very sad that this Bill should have been necessary. The noble Lord, Lord Polwarth, has said that this Bill was brought in to remedy a situation and restore something which was always thought to have been the law and which was proved by a lacuna in the law not to be so. We have had considerable discussion about this matter both here and in another place, and all I can say is that enough evidence has been produced against the noble Lord's view to show that there were certainly other people who thought differently. Indeed, it is quite clear that the unfortunate teachers about whom we are talking to-day thought differently.
This is an instance of retrospective legislation, and some very unkind things, and justifiably unkind things, have been said about it. I quote merely from the supporters of the Government. The noble Lord, Lord Belhaven and Stenton, speaking on July 26 (Hansard, column 1974), said that the result of this Bill might well bethat 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".Because, of course, if the Government can always write back the law to being what they thought it was when someone brought a case against them it really is an unjustifiable use of Government prerogative. I understand that we shall see another example of this in another place to-morrow, so it is not an isolated instance, as your Lordships who have 163 read Bernard Levin in The Times to-day will be well aware. On the same date the noble Lord, Lord Elton, said at column 1977:It is a process which has much more in character with totalitarianism than with democracy.In another place, Mr. Bruce-Gardyne, a Government supporter, said—but I will not trouble your Lordships with what he said.
On the Committee stage we had an interesting debate and a vote. I think there was no doubt in anybody's mind that the majority of those who listened to the debate voted in favour of the Amendment which I put down. I will go further and say that the majority of Conservatives who listened to the debate voted in favour of the Amendment, and it were merely the large number of people who had not listened to the debate but who voted who carried the day for the Government. I do not complain about that; that is our Parliamentary system. I point it out, though, as a fact, and I think it is worth pointing out because it is a bad and dangerous course upon which the Government have embarked. It is bad because it has taken away the rights of individuals, however just the Government may have been in their compensation—and I thank them for that. It is bad because it is indulging basically in deceit. It is in fact totally comparable to the George Orwell-ism that we were all brought up to dislike and to despise. It re-writes history to say that the law is something which for the last few years it has not been and to say that as from a previous date it is different. It is dangerous because I think it strikes at the very root of the rule of law.
Members of other Parties sometimes accuse the Party to which I have the honour to belong on acount of the activities of the young Liberals on Juggernauts and cricket tours. Sometimes their complaints are justified; much more often they are not. I say to this House that one speech like that of the Deputy Leader of the Opposition in favour of recompensing the Clay Cross rebels, one Bill like this which rewrites legislation in the Government's favour against the individual, one Order in Council like that which is due to come 164 up to-morrow in another place does far more harm than any number of protests by young people. I merely hope that the fact that we have been able—and from all sides of the House, for this is not a Party matter—to make a protest in this particular case will mean that the Government will think twice, three times and a hundred times before they follow this slippery course down the road to retrospective legislation.
§ LORD FERRIER
My Lords, the noble Lord referred to the debate on this matter some time ago. I am relying on my memory and I shall be corrected, I am sure, if I am wrong. But in speaking of the voting, of the Contents and the Not-Contents, from this side of the House, the noble Lord overlooked to mention that there were large numbers of abstentions. This was a very complex matter in which the Government found themselves on the horns of a dilemma. So much so that a large number of us—I know; I was one of them—who were in full agreement with what the noble Lord, Lord Belhaven and Stenton, said, felt that in the circumstances the only thing to do was to abstain. I think I am right in saying that many of us did so.
§ LORD GARDINER
My Lords, on the Committee stage of the Bill I explained shortly why my view about this Bill is substantially that expressed by the noble Lord, Lord Beaumont of Whitley. I cannot think that it is right when a small body of men who had done absolutely nothing wrong except to stand up for their legal rights and for what they thought was the law—and they have been held in the courts to have been right all through—that thereupon the law is altered retrospectively to their detriment. I cannot think that that can be right. I understand that they do not have any right to compensation—that is, any legal right—but it is said that compensation will be paid. What then about their jobs? These are teachers. Teaching is their occupation; it is their life's work. What guarantee are they to have that they will get their jobs back? I raised this matter on July 26 on the Committee stage of the Bill when I said: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 understand correctly what 165 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' ".—[OFFICIAL REPORT, 26 /7 / 73; col. 1976.]I pointed out that those are the bodies with whom they had been in conflict in the courts and I asked what action the Government will take to bring pressure to bear on the education authority. In his reply (column 1980) the noble Lord, Lord Polwarth, said:I am perfectly prepared to consider the noble and learned Lord's suggestion.He was being very careful not to commit the Government in any way to do anything at all to ensure that these men get their jobs back. As he did say that the Government would consider the matter, and as three months have now gone by, I should like before we give this Bill a Third Reading to ask whether the Government do intend to do anything about it, or not.
§ LORD POLWARTH
My Lords, in reply there is one point that I must make perfectly clear. This small handful of individuals have all along had their own remedy to this situation. It was to accept the existence of the General Teaching Council, willed into being by the vast majority of their colleagues, and to register under it. If they had chosen to do so there would have been no problem. As I pointed out at the earlier stage, other professions have their bodies which require formal membership to enable a person to practise. This is very similar indeed to those cases. They have had that remedy all along. One cannot but say that they have brought this difficulty on themselves by their own act.
To the noble and learned Lord, Lord Gardiner, I would say that I did undertake to look at the matter and that I have done so during the vacation. But I think he must be the first to recognise that it will be quite impossible for the Government to ensure, or to endeavour to ensure, that those men get back their jobs. To begin with, the extent of the Government's influence on local authorities in their appointments is extremely limited; we do not have the statutory powers, and meanwhile the places will have been filled. Are we to ask the local 166 authorities to dismiss the present occupants of those places? Even if enforced reinstatement is open to the Government (which, I submit, it is not) will it not be contrary to what I think is a legal principle that employers cannot be compelled to retain someone in their employment? There are certain things the employer is obliged to consider if he gets rid of them but he cannot be obliged to retain them. I think that enforced reinstatement would conflict with the statutory discretion for the employment of teachers conferred on local authorities by the Education Act. However attractive a solution this may appear. I submit that it is simply not practicable. I do not see much difficulty in these few teachers if they wish to return to teaching—and some have done so already. In every area there are vacancies occurring for one reason or another, whether in the public or the private sector. If the teachers concerned chose to register—a course which is open to them at any time —I am quite sure that they will readily find employment.
§ LORD HUGHES
My Lords, I must confess that I agree with the Minister, the noble Lord, Lord Polwarth, that it would be difficult for the Government to compel the local authorities to find places for these men, but I should like to suggest to my noble and learned friend Lord Gardiner, that while he is completely correct in saying that the application for re-employment would be to the authority with whom they hade been in dispute, I do not think that there has been any problem or difficulty between the authority and these men. The authority did not of their own volition dismiss the men. This course was taken where an Act of Parliament required them to do so in certain circumstances and they undertook those dismissals. We have no means of knowing whether the authority would have dismissed them if they had had a free hand in the matter; but they did not have a free hand. Having regard to the authority concerned in the particular cases, I doubt very much whether there is the slightest chance that there would be any vindictiveness between them and the education authority.
§ On Question, Bill read 3a, and passed.