§ Order for Second Reading read.
§ 3.43 p.m.
§ The Lord President of the Council and Leader of the House (Mr. Richard Crossman)
I beg to move, That the Bill be now read a Second time.
As a long-standing advocate of Parliamentary reform, I am pleased and proud that the privilege has fallen to me to move the Second Reading of the Parliamentary Commissioner Bill—a Measure which, in our view on this side of the House, is as important as it is long overdue. In asking the House to give the Bill a Second Reading, I want to start by repudiating a notion which has got about, that in this Bill we are borrowing from other countries and trying to force into our British constitutional mould the notion of the Ombudsman which has been the pride of Sweden for 150 years.
In a country where Ministers are not responsible for the administration of their Departments, and where civil servants, therefore, are not answerable to them, it was obvious that the citizen was in desperate need of protection against the bureaucracy. These were the peculiar conditions out of which the Swedish office of Ombudsman grew, and it is these conditions which explain why the Swedish Ombudsman—and also the Danish and Norwegian Ombudsmen, which are, of course, quite modern post-war variations on the Scandinavian model—have such a strong legal flavour and are usually manned by judges.
The Office of Parliamentary Commissioner, which it is the object of this Bill to create, resembles the office of Ombudsman in the one particular that it is designed to protect the individual citizen against bureaucratic maladministration. But because the constitutional structure of our democracy is quite different from the Scandinavian pattern, the institution we are trying to evolve to achieve this object is different, too. The Swedish Ombudsman, though ultimately responsible to Parliament, is an independent investigator and judge who, within his defined functions, chooses his own cases to examine and has his own independent 43 relationship with the Press and the public. It has been his task to provide outside Parliament that defence of the individual against Executive excesses which our Parliamentary Questions, Adjournment debates and tribunals of inquiry provide.
In contrast, the investigations of our Parliamentary Commissioner will in no way replace Question Time or the Adjournment debate. On the contrary, they will provide the back bench Member, once he knows how to use it aright, with a new and powerful weapon which, up till now, neither he individually nor we collectively as a House has ever possessed—the possibility of impartial investigation into alleged maladministration. The knowledge that the Parliamentary Commissioner is there, eager to get to work: the knowledge that he can act only in response to complaints from Members and is, therefore, in the strictest sense, a servant of the House: the knowledge that when he acts he will be able to go wider and further than anyone except the Comptroller and Auditor-General—this knowledge should surely put heart into those back benchers who feel they count for not much more than Lobby fodder.
Let me say a word about the efficacy of our present methods of dealing with complaints about maladministration. Question Time, Mr. Speaker, under your guidance, is changing its tempo and therewith its character. To some extent, as I think the Warden of Nuffield was perhaps the first to observe in his remarkable book, the letter in the hands of the skilful back bench Member which extracts lengthy correspondence with a departmental Minister has become a more potent instrument for helping the individual citizen with a grievance than the Question itself.
But in both cases, the Question and the letter, there is one built-in defect. All they can elicit from the Minister is an investigation which is usually far from impartial and far from complete. Of course, very occasionally, where something seriously amiss is uncovered or where passion has been worked up, a Minister will call for a Departmental inquiry, and, even more occasionally, he will ask for a tribunal under the Tribunals of Inquiry (Evidence) Act, 1921, to be set up. Departmental inquiries, conducted 44 often as not by a Q.C. selected by the Minister can, as I know from personal experience, fulfil a vital and very useful purpose. About the tribunal of inquiry as a method of dealing with maladministration, all I can say is that it is a very large hammer with which to crush a nut. Indeed, it is noteworthy that, since these tribunals were established 45 years ago, only nine have been set up to deal with what we could possibly call maladministration.
So I am not exaggerating when I say that, when it comes to investigating maladministration, our Parliamentary system of Questions, followed by letters where the Answer is unsatisfactory, an Adjournment Debate and, very occasionally, in the last resort a Departmental inquiry or tribunal, is often deficient in one particular, and in this respect makes things far too easy for the Executive. What it lacks is the cutting edge of a really impartial and really searching investigation into the workings of Whitehall—an investigation designed primarily to deal not with great scandals but with those secondary acts of injustice against the individual which, if permitted to fester, arouse what is often a grossly unfair prejudice against the Civil Service—because it is just as much in the interests of Whitehall as in those of the individual citizen that the back bench Member should have added to his armoury the activity which this Bill allocates to the Parliamentary Commissioner. Indeed, the remarkable thing is that so long a time has elapsed between the first bruiting of the idea that there was a need to strengthen our Parliamentary investigation of maladministration and the presentation of this Bill to this House.
Let me remind the House briefly of what happened, because in resuming this history we can, I think, learn something about the nature of the problem. In 1960, with the encouragement of the Government of the day, the body called "Justice", which is this country's section of the International Commission of Jurists, began an impartial and nonparty study of the questionwhether there was need for more effective machinery for dealing with citizens' complaints of misuse of administrative powers by the Executive.Great credit is due to all concerned in the inquiry, especially to Sir John Whyatt, for the report, which dealt with 45 two quite separate topics—the exercise of discretionary powers and the investigation of alleged maladministration. As regards exercise of discretion powers, they suggested this should normally be subject to appeal to an independent authority, and recommended extending the powers of the Council on Tribunals for this purpose. The Tribunals and Inquiries Bill, which was given a Second Reading in this House in August, is addressed to this part of their report.
Dealing with the second part—alleged maladministration—it is of great interest to trace the principles of the solution put forward in the Justice report. First, it said that Parliament is and must remain the most important channel for making representations to the Executive about grievances arising from maladministration. Secondly, existing Parliamentary procedure provides a valuable means for dealing with these complaints. Thirdly, however, these procedures would be more effective if supplemented by machinery for investigation by an impartial authority at the request of the Member. Fourthly, to be, and to be seen to be, impartial, the new authority must be independent of the Executive—a Parliamentary Commissioner modelled on the Comptroller and Auditor General, whose office celebrates this year the centenary of the reforming Statute from which it has developed into the effective instrument of Parliamentary control which it is today.
Fifthly, the function of the new office would beto receive and investigate complaints of maladministration against Government Departments".Sixthly, the Parliamentary Commissioner should receive complaints only from Members for an initial period. His investigation should be conducted as informally as possible and he should submit an annual report to Parliament on the more important cases and special reports from time to time on cases of particular interest. That gives only the fairest summary I can make of this very remarkable document.
It was a pity that the Government of the day were not more attracted to this report or more urgent about it. The report was published in October 1961, but it was not until 8th November, 1962, following pressure from both sides of the House, that the then Government made their views on the report known to Parliament 46 by that very discreet method of communication, an Answer to a Written Question. In that Answer they told the House that they did not think that it would be possible to reconcile the "Justice" proposals, which were, of course, keenly supported by the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson), who is a member of "Justice", with the principle of Ministerial responsibility to Parliament, and that the appointment of a Parliamentary Commissioner would seriously interfere with the prompt and efficient dispatch of public business. That was that. The Government remained inactive on this issue for the rest of their life.
The next effective move was taken by the then Opposition, when the Labour Party set up a working party to study the reform of Parliament. The result of our labours was announced by the then Leader of the Opposition in a speech at Stowmarket on 3rd July, 1964. In this speech, the present Prime Minister emphasised that a programme of economic planning and social service reorganisation was not enough. What was needed in addition was, to use his own words,a determination to humanise the administration and to improve relations between Westminster and Whitehall, on the one hand, and the individual citizen.He proceeded to outline a programme of Parliamentary reform which took into account the shift of the balance of power between Executive and Legislature in favour of the bureaucratic machine and indicated the ways in which the authority of Parliament could be restored and back bench M.P.s of all parties enabled to make a greater contribution to the two great functions of the House of Commons—the passing of legislation and the effective control of the Executive.
On the first issue, he urged the formation of specialist Select Committees, on which I hope to have some proposals to make on a different occasion. Turning to the control of the Executive, he proposed the creation of a Parliamentary Commissioner to investigate individual complaints, very much on the lines suggested in the "Justice" Report.
The Stowmarket speech had a very good reception from almost everybody except the Conservative Government, whose spokesmen, including the present 47 Leader of the Opposition, continued to attack the proposal on the ground that it would undermine Ministerial responsibility. But, despite this, we persevered. The project was included in our manifesto and subjected as soon as we won power to a searching inter-Departmental investigation. It was then presented to the House last October in the form of a White Paper. Perhaps, as a result of the welcome with which the project was received, our opponents began to have second thoughts. In the spring of this year, just before the election, a pamphlet was produced by a group of Conservative lawyers which, instead of disowning the whole idea, as they did when in power, now argued that the need for such a Commissioner was overwhelming, but that the powers proposed for him were too narrow.
Which of these attitudes Opposition spokesmen will adopt today is a very interesting question. Since the right hon. and learned Member for Warwick and Leamington was a member of "Justice" when the Whyatt Report was produced, I assume that, along with his hon. and learned Friend the Member for Northwich (Sir J. Foster), who also played a very important part, to which I pay tribute, in this Report, he will give the project in its new and much more effective form at least his passive acquiescence.
As for the right hon. and learned Member for St. Marylebone (Mr. Hogg), I can only hope that the fires of the Damascus Gate oration by which he confounded the hangers at Blackpool are still burning in his heart and will inspire him to discard the negative attitude which he and his colleagues adopted in 1962 and to give the Bill, designed to humanise relationships between the politician, the civil servant and the individual citizen, acquiescence in the Lobby this evening and constructive criticism later on.
I want now to mention four major departures which the Bill makes from the recommendations of the "Justice" Report. First, we are not tying ourselves to a five-year trial period for the requirement that complaints may go to the Commissioner only from a Member. That is clearly owing to a shift in our philosophy. We believe the Bill to be a further expression of Parliamentary control, and we would not like to see any change in 48 which initiation was taken from back bench Members and given only to the Press or the public outside. Therefore, what "Justice" recommended as a temporary interim proposal we have built in as a permanent part of the structure of the Bill.
Secondly, the "Justice" Report suggested that before being permitted to start any investigation the Parliamentary Commissioner should notify the Minister of the Department concerned and that the Minister would be entitled to veto the investigation. We are suggesting not only that the Minister should have no veto at all, but also that his own administrative acts may be included in the Commissioner's investigation if they have played any part which is not exclusively policy. As I said earlier, the Commissioner will be free to make his own inquiry from the top to the bottom of a Department. He will be able to investigate the lowest clerk and the highest Minister to discover exactly what happened. That is something which, so far as I know, has not occurred before.
Thirdly, "Justice" suggested that the Parliamentary Commissioner should have access to Departmental files, but that these should not include internal minutes. We are proposing that he should have access to all Departmental papers which are relevant, including internal minutes. Quite frankly, internal minutes nearly always throw most light on alleged bias, malice or delay, and it is absurd to pretend that there can be a thorough investigation if the Commissioner is allowed to see everything except minutes. The minutes are, therefore, included.
Fourthly, we have gone further by denying to Ministers in Parliamentary Commissioner cases the right which they have always had and still retain before the courts to claim Crown Privilege. Crown Privilege will not be claimed by a Minister for documents before the Commissioner. We think it better that the Commissioner should be able to see everything. This will be possible without danger to security or confidentiality by reason of the informality and the privacy of the Commissioner's proceedings.
I ask the House to observe that on each of these four important issues in the Bill the Government have gone much further than the proposals of the Whyatt Report 49 which the Conservative Government condemned.
§ Mr. Jeremy Thorpe (Devon, North)
I accept everything the right hon. Gentleman has said about the intentions of the Bill, but will he say something about Clause 11(3), which appears to give a Minister a complete veto?
§ Mr. Crossman
Of course I will. I have read my copy of The Times this morning and I have been prompted by that to consider the Clause myself. I will take that in its proper place. It is a question of the Minister being permitted to suppress documents after the investigation has taken place. What I am talking about now is a veto of the investigation altogether.
§ Sir Hugh Lucas-Tooth (Hendon, South)
When the right hon. Gentleman speaks of access to Departmental minutes, does he include Ministerial minutes and Cabinet papers?
§ Mr. Crossman
No. The White Paper made it quite clear that Cabinet papers are excluded, as they clearly must be. Therefore, those Ministerial minutes which could be classified as Cabinet papers will be excluded, but the Bill will not exclude the observations of the Minister in his administrative capacity as administering the Department when those observations are relevant to the investigation.
I want to remind the House how far we have gone. First, we have decided unequivocally that the Parliamentary Commissioner must remain permanently a servant of the House, and in order to emphasise this we have laid it down that the initiation of grievances must permanently reside in back-bench M.P.s. Secondly, we have decided to remove the limitations on the Commissioner's investigations which the authors of the Whyatt Report cautiously recommended and which, in my view, would have made them very superficial investigations. In a matter of this kind, it is not usual for a Government to exceed the limits set by the recommendations of an independent committee. We have done so bcause we are determined to give this machinery of Parliamentary investigation a real cutting edge, and also because we are convinced that the man whom we have appointed to establish the office will 50 not abuse the unique and unprecedented powers which we have given to him.
In these circumstances—and this comes to the question of the hon. Member for Devon, North (Mr. Thorpe)—it was a little unjust of the editor of The Times to take the attitude which he did in his leading article this morning without mentioning that we have got rid of the veto on the investigation of any case, not to mention Crown Privilege and the suppression of documents. The Times complained that we were to allow a Minister, after the investigation had been completed, to forbid disclosure of information whichwould be prejudicial to the safety of the State or otherwise contrary to the public interest.I want the House to be quite clear what this limitation means.
It does not enable a Minister to prevent an investigation from taking place, or the Commissioner from reporting the results of the investigation to either the individual Member, or, possibly, a Select Committee. All that it does is to give him the right to insist on discretion in the publication of documents and information. I should have thought that this was a reasonable precaution, without our giving the Commissioner enormous powers of access to secret documents. One must limit publication of such documents after the investigation has taken place. It is quite clear that if we had not done this we would have had to accept the Ministerial veto on the investigation, and that would have been a very great pity.
So much for the principles upon which the Bill is based. These are principles which, as will be seen, are derivations from or logical extensions of the Justice Report.
I do not suppose that hon. Members will wish me, on Second Reading, to expound the Bill Clause by Clause. To save time I will concentrate upon those essential parts which defined (1) the areas where the Commissioner can operate and, (2) the kind of complaints to be submitted to him.
Clause 4 and Schedule 2 define the area. From this area local governments, nationalised industries and independent boards are excluded, but the area covers roughly the whole administrative 51 machinery of central government with which the public comes into contact. The actual Departments are listed in Schedule 2. I will return later to the significance of this exclusion, which is concerned with grievances with which the Commissioner can deal.
Clause 5 lists those which the Commissioner may investigate. If a layman is permitted to translate it, what it boils down to in ordinary intelligible English is that the Commissioner may cover any personal complaint about personal injustice caused by maladministration.
What about the definition of maladministration? In the first place I can define it to some extent negatively. It does not extend to policy, which remains a matter for Parliament. Nor do we include under maladministration that whole group of discretionary decisions which Sir John Whyatt treated separately in the first part of his Report. Discretionary decision, properly exercised, which the complainant dislikes but cannot fault the manner in which it was taken, is excluded by this Clause.
A positive definition of maladministration is far more difficult to achieve. We might have made an attempt in this Clause to define, by catalogue, all of the qualities which make up maladministration, which might count for maladministration by a civil servant. _ It would be a wonderful exercise—bias, neglect, inattention, delay, incompetence, inaptitude, perversity, turpitude, arbitrariness and so on. It would be a long and interesting list.
We have not tried to define injustice by using such terms as "loss or damage". These may have legal overtones which could be held to exclude one thing which I am particularly anxious shall remain—the sense of outrage aroused by unfair or incompetent administration, even where the complainant has suffered no actual loss. We intend that the outraged citizen who persuades his Member to raise a problem shall have the right to an investigation, even where he has suffered no loss or damage in the legal sense of those terms, but is simply a good citizen who has nothing to lose and wishes to clear up a sense of outrage and indignation at what he believes to be a maladministration.
§ Mr. Cranky Onslow (Woking)
The right hon. Gentleman used the phrase "the outraged citizen who persuades his Member." Is it not a fact that the link between the citizen and his Member is not specified in this Bill?
I am quite incorrect in what I said. It comes from taking up one's head for a moment. It is true that a citizen can go to any Member, and it is specially laid down. We can only hope that reasonable arrangements will be made between constituencies and Members. We do not want to exclude anyone from having the right to raise a matter. Normally, I would assume that he would go to his constituency Member, but he is entitled to go anywhere if political difficulties intervene.
On all of these grounds, we have left both words—maladministration and injustice—undefined in the Bill. We believe that the meaning of the words will be filled out by the practical processes of case work. We are encouraged in this by the experience in New Zealand where the Parliamentary Commissioner has had several thousand cases. It seems that he is defining his words by the cases he is deciding.
He is defining by practice. We have made limitations which I have listed, and we have said, I think rightly, that the definition of the words injustice and maladministration is best left to working out by practice as we go.
We are not introducing the Commissioner to replace existing institutions. He will not be an alternative to existing tribunals, and he will not be able to criticise the courts. We have not excluded him altogether from considering matters where there is a remedy in the courts. Awe of the courts may frighten away someone with a genuine case simply because he lacks knowledge or experience, or because the proceedings may be excessively cumbersome, time-consuming or expensive in relation to the subject.
So we have given the Commissioner discretion to investigate matters which could go before the courts, but his findings will not be judicial decisions and will not bind the courts. Nor can any 53 action of his debar anyone from access to the courts.
I turn now to some queries and objections which have been advanced against our proposals. There is first the question of who is the right kind of man to become our first Parliamentary Commissioner.
I was interested to see the view expressed in an article in The Statist of 7th October about experience in Scandinavia, which shows that a legal and, in particular, a judge's training is essential for the post of Parliamentary Commissioner. The writer went on to say that the appointment by the Government of someone who had been a civil servant and who did not have the in-built impartiality required of a judge would seem to be a great limitation on the English appointment.
I do not accept any of this. I have already explained why the Scandinavian situation is quite different from ours, and I hope that, although many hon. Members have strong feelings about the naming of this officer before the Bill had come before the House, there will be general agreement that the Government can be congratulated upon choosing the right man to do this job.
We have here someone who has been a distinguished servant both of this House and of the Executive. As a servant of this House during the eight years that he was Comptroller and Auditor General, he learned not to spare the Executive when there were fair grounds for criticism. I can make my point by mentioning the case of the Ferranti scandal. This was a fairly independent judgment made upon the Executive. Moreover, he understands the workings of this House and is respected in all quarters of it. It is a Parliamentary officer that we want, and Sir Edmund Compton is a most distinguished Parliamentary officer already.
I wish to say a word about the Commission's reports to the House, on which some queries have been raised. Under Clause 10, he will report to individual Members lodging complaints with him on their particular cases. It is also open to him, in a case where he thinks that the maladministration or injustice has not been or will not be remedied to make a special report to the whole House. He is required to lay before the House an annual report.
54 I have been asked whether this would involve the setting up of a new Select Committee. The Government are anxious for the House to take its own decision, but clearly there is a strong case for a special Select Committee to handle the Commissioner's special reports as well as his annual report.
In his Stowmarket speech, the Prime Minister foresaw what he called a high-powered Select Committee working with the Parliamentary Commissioner in much the same way as the Public Accounts Committee worked in co-operation with the Comptroller and Auditor General. He said:Just as the Reports of the Comptroller and Auditor General and the Public Accounts Committee are capable of highlighting individual cases of waste, and of commenting on weaknesses in the system of expenditure control, so the proposed new Commissioner and the related Select Committee would have the same opportunities for highlighting individual cases of injustice as well as general defects in the system.
§ Mr. A, Woodburn (Clackmannan and East Stirlingshire)
It may be that in some cases the person suffering the injustice would not want his case to be highlighted and publicised. Privacy might be part of the justice given to him. Would it necessarily be highlighted, or would the Parliamentary Commissioner be entitled to give publicity to something which a man wished to keep private?
§ Mr. Crossman
My right hon. Friend will appreciate that in the first instance the person concerned has to give his consent to the reference to the Commissioner. His case could not go before the Commissioner without it. My right hon. Friend has raised a pertinent point. If a person expressed the wish that his case should not be publicised, I should think that it would be unlikely that the Commissioner would not respect it. In the same way, the Commissioner will be careful about naming civil servants. If he did not have that kind of discretion, he would be a very bad Commissioner.
§ Mr. John Rankin (Glasgow, Govan)
Would my right hon. Friend agree that the time factor in the presentation of the Commissioner's report is very important? Is my right hon. Friend aware that he is proposing to introduce a piece of machinery in a House which is already overloaded with machinery? In the case of the Estimates Committee, for example, 55 we have sometimes waited three years for a report on its work.
§ Mr. Crossman
My hon. Friend does not appreciate that the vast majority of the Commissioner's reports will be presented to the individual Member of Parliament immediately on completion of the investigation, so that there will be urgency and a quick delivery of the report. I am discussing whether there will not sometimes be—there will be from time to time—test cases, reports which raise important issues of principle worthy of discussion by the House. I am asking what organisation the House should set up for the treatment of these more important issues as well as the annual report. I emphasised that this is a matter for the House, but I think that there is a case to be considered for a Select Committee. If the view is held that there are too many Select Committees, that would be a relevant argument for turning down the proposal.
§ Mr. F. J. Bellenger (Bassetlaw)
Would my right hon. Friend explain more fully something which seems to me somewhat revolutionary? Hitherto, a Member of Parliament has been responsible to his constituents for investigating their grievances. Is my right hon. Friend saying that a constituent can go to any Member of the House he likes—and he might often want to go to a Member of his own political persuasion—and thereby prevent that constituent's Member from having the chance of taking the matter himself to the Ombudsman?
§ Mr. Crossman
I did not say that. I hesitate to correct my right hon. Friend about matters of procedure in which he is much more versed than I am. However, my impression is that constitutionally a member of the public can approach any Member of the House, and indeed this is extremely important because there are certain political cases in which one is entitled to go not to one's own constituency Member but to some other Member. If we took that right from the citizen we should be taking away a large part of his freedom. But as a matter of courtesy between ourselves we tend normally to refer constituency cases to those to whom they belong. However, if a person insists and says, "I want you, because I do not want to go to him", 56 one cannot deny him the right of access and one must always consider his case.
In the case of the Parliamentary Commissioner, this right is of extreme importance. It may be that we shall want grievances brought to our notice, normally I agree, through the constituency Member. But if an individual citizen does not want to do that, he must be free to go elsewhere.
§ Mrs. Anne Kerr (Rochester and Chatham)
Does my right hon. Friend consider that the matter should go first to the constituent's Member of Parliament? It seems to me that some people will get bogged down with many problems.
§ Mr. Crossman
It may be that the Minister against whom the person is complaining is the constituency Member. This could happen. I do not see what we should fuss about. People have a clearly understood right to approach any Member. This right will be maintained with the Parliamentary Commissioner. He will not be approached exclusively through the constituency Member, although I would assume that normally he would be.
§ Mr. Sydney Silverman (Nelson and Colne)
Would my right hon. Friend bear in mind that there is a long-standing convention in the House that if a Member is approached by someone with a constituency grievance he normally consults the Member for the constituency in question before taking the matter any further? One assumes that this convention would still operate.
§ Mr. Crossman
I am in entire agreement with my hon. Friend, and I hope that we can get that clear.
I wish to come to the central and biggest criticism made of us which, surprisingly, is the complaint that what we are doing is too timid and that its range is too circumscribed. I am asked: "Why not take in local authorities, the nationalised industries and the hospital boards?". The question is also asked: "If criminals and lunatics are to get their grievances dealt with in this way, why is a similar right denied to civil servants and soldiers?". I want to answer both those questions.
It is worth noticing that many of those who now take this line, only four years 57 ago turned down the far more cautious proposals of the Whyatt Report on the ground that they would undermine Ministerial authority and bring the Civil Service to a standstill. Those of us who for years have been trying to revive the authority of Parliament and restore its control of the Executive certainly welcome the about-turn of those critics as a sign of what seems to be becoming a mass conversion to parliamentary reform. But it is better for the reformer to be chastised as a laggard than branded an irresponsible revolutionary.
I come now to the detailed criticisms. I take first local government. I would remind those critics who want to see local government covered, that in Sweden, which they quote as an example, it took over 100 years before this extension of power to local government took place Anyway, in our very different constitutional context, it seems to me right that our Parliamentary Omsbudsman should deal only with the area of Ministerial and therefore of Parliamentary control, leaving it to elected local authorities to work out their own way of equipping their councillors with an Office designed to remedy individual grievances of ratepayers by means of a searching investigation. I hope that big authorities will make the experiment as soon as possible. But I am clear that instead of imposing our Parliamentary system on the quite different structure of local government they should be encouraged to work out their own, suited to their own different circumstances.
I come to the complaints about civil servants. Their representatives do not share the critics' point of view. Here it is better to rely on the well tried system of Whitleyism through which all manner of complaints are satisfactorily pursued.
The serving soldier is a different problem. It is worth noting in his case what happened not only in Scandinavia but in Western Germany where a military commissioner was established by the same Act of Parliament which restored military service. In all these cases the office which deals with Service complaints is separate and distinct from that which deals with civil complaints. It is clear that if we are to have a civil Parliamentary Commissioner he should be as we have defined. If my hon. Friends want a military commissioner, that is a separate 58 institution which should be thought of separately and, if necessary, organised separately.
So much for the limits.
§ Mr. William Baxter (West Stirlingshire)
Surely the lines of demarcation between local authorities and the Government and nationalised institutions and the Government are very difficult to define. The Commissioner may investigate a complaint laid before him by a Member of Parliament which may overlap the functions of a local authority or a nationalised institution. This means that his activities would, to some extent, be curtailed. Would it not be better to give him a broader basis?
§ Mr. Crossman
If he is a Parliamentary Commissioner, he limits himself to Parliamentary matters. We control here what Ministers control in their Departments. This is what we have laid down. It would be possible later, by an Amendment, to extend it to local government, but I hope that before that happens, local government will have developed its own institution comparable to this, which I think may well be different.
§ Mr. Sydney Silverman
Does not my right hon. Friend consider that this distinction is a little artificial inasmuch as a citizen who complains of maladministration by the local authority has always had the right of complaint to the appropriate Minister in the House, and if the appropriate Minister in the House does not deal with it, or deals with it in a way which is subject to legitimate complaint, it will be a matter within the jurisdiction of the Parliamentary Commissioner in any event?
§ Mr. Crossman
I am lucky here, because I was the appropriate Minister for Local Government for twenty months. I can tell my hon. Friend that the appropriate Minister is very careful not to interfere in a whole mass of internal complaints about local government and wisely tells those people to go back to their own elected authority. What is wrong is that the elected authorities have not evolved an institution of the kind which we seek to evolve here. I hope that we shall set an example which will be followed by them.
§ Sir Tatton Brinton (Kidderminster)
I am grateful to the Minister for giving way. 59 He has been extremely good in doing so. May I raise a specific question on the very point to which he has just referred? What about planning? This is often an oppressive business to the individual and it is one in which the Minister has the ultimate right of decision through his inspector. Will that come within the scope of the Parliamentary Commissioner?
I know that a lot of hon. Members wish to speak. I had left out this whole section of what I had prepared because it was too long. I will, however, deal with planning in a single sentence. Responsibility for controlling the Minister's semi-judicial planning decisions is that of the Council on Tribunals, but if one can find maladministration—if, for instance, it can be proved that the Minister was unduly influenced by a big contractor or if a person finds that he is being damaged by undue delay, which in my experience might not be totally impossible in the case of planning decisions—one would be entitled to go to the Parliamentary Commissioner and ask him to investigate the whole situation about delay in planning decisions. Therefore, it is only where the planning decision has a maladministration aspect that one is entitled to deal with it.
Having spoken about the limitations, I want to emphasise that although we have excluded a lot, we have made a radical change with regard to the field which remains inside, which is still fairly large. I have with me a list which I intended to give of the various Departments and the areas of each Department. It is a considerable sphere, which hon. Members will be able to study by close examination of the Bill.
One must realise that for the first time a complaint to a back-bench Member of Parliament about maladministration in any Department may precipitate a searching and detailed investigation, including the close examination of everyone concerned, from the top to the bottom of the Department and the examination of all the relevant secret Departmental files. This is a considerable change. What happened previously in a few rare cases now becomes a continuous possibility and as such will, I believe, be a welcome and healthy tonic to those who are liable to lapse into maladministration.
60 Through the office of Parliamentary Commissioner, we put at the disposal of the back-bench Member an extremely sharp and piercing instrument of investigation. Whether it produces good or bad results will depend primarily, of course, on the wisdom of the Commissioner and his staff, but to a large extent also on the responsibilities with which Members of this House use this new great power.
We have a very clear choice. In framing the Bill, we could have created a blunt instrument which could be used over a relatively wide field with comparatively small risk. Alternatively, we could fashion a very sharp instrument. In that case, however, it is surely obvious that the limits within which it could be used must be extremely carefully and narrowly defined in this first period.
We have chosen the latter course because we are convinced that searching investigation within a narrow, defined field is likely to be far more health-giving in stopping maladministration than superficial investigation over a very wide field. That makes it all the more important for hon. Members to study the exact extent of their powers and to use them to the full, because unless they do this the Commissioner will have no work to do and the Measure will fail.
§ Mr. Leo Abse (Pontypool)
My right hon. Friend has been anticipating the criticisms, but he has not anticipated the criticism which is implicit, for example, in the article by the right hon. Member for Enfield, West (Mr. Iain Macleod), which I share, that this institution could diminish the rôle of the Member of Parliament. I wonder whether my right hon. Friend will address his mind, therefore, to the question of whether, although it may be useful for the slothful and indolent Member of Parliament, it is one in which we believe that we can be our own Ombudsman in this House?
§ Mr. Crossman
I did not like to refer to the right hon. Gentleman's article, because I might have done it discourteously, but I thought that it showed a little of his typical arrogance. It shows that he thinks he is able, just like that, to get access to secret Departmental files and to cross-examine everybody from the Minister down to the clerks in the Department. It may be that the right hon. Gentleman has this method. Most of us 61 do not have it as back-benchers, or even as Front-Benchers on the other side.
I would have thought that the whole of my speech was an answer to the argument raised by my hon. Friend the Member for Pontypool (Mr. Abse) because it indicates that it does not take anything away from the back-bencher. It enables the back-bencher to get investigated what was not investigated before. It enables him, when put off by an evasive answer, to insist on something more being done. It enables him, when he is not satisfied, to go further or to have it done, provided that the Commissioner thinks that the case is fair.
Having said how important it is to use the powers, I want to give the other side, because it is equally important that hon. Members should not overload the Commissioner by making complaints indiscriminately so that he has to waste his time sitting out nothing but chaff. If the Commissioner is to work, it will be for hon. Members to do the initial sifting and to make sure that only those cases are submitted in which there is a strong prima facie case. Wisely used, this can be a potent instrument for the protection of the good name of the Civil Service, for the restoration of Parliamentary authority and for the redress of individual grievances.
How often in the past have we all shared the sense of impotence with which a frustrated back-bencher rises and says, "In view of the unsatisfactory nature of the reply, I give notice that I will raise the matter on the Adjournment"? Now, he has something else to rise for. Instead of merely threatening a half-hour Adjournment debate, he can tell the Minister with whose action he is not satisfied that he intends to raise the issue with the Parliamentary Commissioner. The difference which this will make is the measure both of the need for and the importance of the Office which the Bill creates.
§ 4.27 p.m.
§ Mr. Quintin Hogg (St. Marylebone)
The number of interruptions to which the Lord President of the Council courteously gave way during the course of his speech illustrates that this Measure is both more difficult and more controversial than the right hon. Gentleman was prepared, at least at the outset, to concede.
62 Before I reply to the right hon. Gentleman's argument in detail, perhaps the House will forgive me for begging its indulgence if I should leave my place somewhere about an hour from now, since I am a member of a Select Committee on which I am expected to serve at that time. I hope that those who take part in the debate will therefore excuse any possible apparent discourtesy in my movements from the House.
Again, before I embark on discussion of the merits of the Bill, as this is the right hon. Gentleman's first considerable performance as Leader of the House, perhaps he will forgive me if I welcome him to his present position. He and I have known each other for upwards of 40 years. A long relationship of mutual disapprobation and disagreement has certainly not failed to engender in me, and I hope also in him, a certain measure of mutual affection.
At any rate, we are both of us dinosaurs, to use the current terminology of the Prime Minister, because we are probably the last examples in public life of those who were subjected to the traditional disciplines in the Greek and Latin tongues from the age of 8 to approximately the age of 24. Of course, all this is a thing of the past, but I have never noticed that either the right hon. Gentleman or myself has been particularly inarticulate in the English language or has been considered particularly unable to communicate to the ordinary ranks of our own supporters. Perhaps, therefore, the discipline of Greek iambics and Latin elegiacs is less obsolete in the modern age than most people would be disposed to think.
I am glad that the right hon. Gentleman did not attempt to excuse the affront to Parliament involved in the appointment without Parliamentary sanction of the individual, of whom we all approve, as the first tenant of the office of Parliamentary Commissioner. Of course, we realise that in the view of right hon. Gentlemen on the Front Bench opposite Parliament is very largely a rubber stamp, but we hope that in future they will at least courteously use the stamp instead of anticipating its use before the action on which they are determined is taken. This is, of course, only one of a number of instances in which right hon. Gentle-ment opposite have jumped the Parliamentary gun and have confused their 63 own will with that of Parliament and the law of the land; but now that it has been done we must examine this proposal on its merits.
Here, of course, there can be no question of treating discussion of this matter as a party issue. It is perfectly true, as the right hon. Gentleman reminded us, that this proposal, at an earlier date, was considered and rejected by the Administration of which I was a Member. Time alone will show whether this rejection was right. Personally, I believe it probably was; but, whether it was right or wrong, we approach this question, as the right hon. Gentleman has sought to approach it, objectively from the point of view not of party principle, because no party principle is involved, but upon objective arguments for and against the proposal which we were able to assemble. Of course, in every constitutional sense decisions of this kind by an Administration have to be unanimous. But we all know as a matter of fact that this is the purest of conventions and that inside the Administration the number of distinguished and remarkable characters who form part of any Government under our Parliamentary system seldom have less than about eighteen different opinions upon every single question at issue, and I dare say opinions are equally divided on the back benches on this side of the House and on the back benches opposite.
Of course, it is true that, as the Conservative lawyers pointed out, the need for some kind of grievance machinery in the modern world scarcely needs to be emphasised. The points at which the individual can come into contact with what he is inclined to call bureaucracy are increasing in number, and the consequences to the individual can be extraordinarily grievous, as we all know from our constituency experience, even without the smallest intention on the part of the Government of the day to harm the individual complaining, and sometimes even without their knowledge. Therefore, in the multifarious actions of authority, grievance machinery of some kind is an essential part of modern administration.
The question is whether that which is now proposed is valuable as a grievance machinery in addition to the existing grievance machinery, since the right hon.
64 Gentleman, quite rightly, was at pains to emphasise that it was not designed to replace the existing grievance machinery connected with the central Government.
The House will perhaps forgive me if I make two general observations about the nature of the administration of this country. This country is probably, in terms of population and sophistication of its governmental machinery, the largest unitary State in the world. Other States of comparable size and comparable development have nearly all adopted some kind of provincial or federal constitution. Moreover, this country has the type of governmental organisation which differs from that of most of its European continental neighbours in that, from the first the provincial town has been separated deliberately from its surrounding countryside: Oxford is not the capital of Oxfordshire. From the Conquest onwards, the county borough has formed an enclave inside the county, and there is nothing between the county borough on the one side and the county on the other and the Whitehall machinery at the centre.
These two facts have, I think, properly to be appreciated if we are really to understand the kind of malaise and frustration which this particular set of machinery is designed to remedy. Very largely, I believe, the malaise is a function of over-centralisation in the central Government of the United Kingdom, and very largely, as I think some of the questions and some of the points underlying the cheers which greeted part of the right hon. Gentleman's speech indicated, a product of the almost chaotic confusion which at the moment afflicts British local government.
I can illustrate this by a reference to my own experience in this matter. It so happens that I made public some time ago my doubts about what I called the Ombudsman proposals, and I received in the course of time a flood of letters, mostly critical, and some of them abusive. They did not, in the main, come from constitutional experts. In the main they came from indviduals who thought they would have something for the Ombudsman to do if there were an Ombudsman appointed, and leaving aside the obviously phoney, I think I can honestly say that the overwhelming proportion of those who thought they would gain from this proposal were people who had criticisms, 65 sometimes apparently quite legitimate, of local government. This is not altogether satisfactory, since, as a Member of Parliament, I would expect to attract, in the main, criticisms of the central Government. Out of the whole of the correspondence, I did not get one criticism of the central Government which I could have conscientiously put to the Parliamentary Commissioner defined by this Bill; but I probably had dozens of criticisms of local government. The remainder were very largely of the nationalised industries or of decisions of the courts from disappointed litigants.
Depite the right hon. Gentleman's argument, I cannot rid myself of the conviction that in its genesis and in its philosophy this Bill largely arises from an attempt to import into and to make relevant to our own institutions an institution which has grown up in much smaller unitary States—in fact, Sweden, Norway, Denmark, New Zealand—in which, in each case, it derives much of its success which it is enjoying, not merely from the different size of the populations of those States, but also from the different characteristics of their Parliamentary institutions, some of which, but not all, were mentioned by the right hon. Gentleman in his speech. For instance, there is certainly in the Scandinavian countries an almost complete absence of Parliamentary question time relating to matters of this kind.
The case for the Bill, as I understand it, is that our present grievance machinery on the national level is inadequate. I do not believe that a single official with a relatively small staff, which is what the Bill proposes, is an efficient way to provide an efficient addition to our grievance machinery. I was glad that the right hon. Gentleman paid his tribute, to which I would like to add my own, to the efficient and relatively sophisticated grievance machinery which we have developed by trial and error in this House. I thought that in the Whyatt Report, to which we have all paid considerable attention, this was not adequately given credit by the author of that admirable document.
I was also glad that the right hon. Gentleman referred to the importance of correspondence between the Private Member and the Government. Obviously Ministers, whoever they may be, do not want their Departments to get a name for individual cases of injustice, and clearly 66 the limitations of Question Time, to which the Whyatt Report drew attention, are largely to be complemented by the advantage which the power of interrogation gives to the individual of arguing his case on paper and, if need be, by personal representations, or even the leading of a deputation to a Minister where the matter sufficiently deserves it.
Hon. Members on the Floor of the House are not limited to the Adjournment Debate. With experience in our procedure, we can bring our questions of grievance within the ambit of debate on general legislation, and I should be surprised if examples are not found today. They can also be brought forward in general debate, with the assistance of the Chair, or in debate on the Money Bills or on the Supply Days, when different areas of administration are properly made the subject of inquiry on the Floor of the House. We must not underestimate the value of the existing procedure and we must also be careful to inquire, as some hon. Members on both sides of the House have already inquired, as to how far the Bill's proposals will assist and how far they will undermine the work of an efficient and responsible Member of Parliament under the procedures which we have developed.
The right hon. Gentleman appeared to think that there was some kind of dilemma there—that one could question the efficacy of the Bill on the grounds that the possible area of its operation was too narrow, and that one could question its efficacy on the ground that the possible effects of its operation might be to damage the position of the individual member, but he appeared to think that one could not do both. I would dispute that and shall point out some of the weaknesses, as they seem to me, of the proposal as it has developed.
In his natural habitat of a country with a maximum population of about 7 million, the Ombudsman or the Parliamentary Commissioner is a sort of uncle figure. He is a man with a tiny staff of whom it can be said with confidence that he examines personally every individual case which he is given from every source. I do not believe that it is possible for a single official to do that here, with our vastly larger population, and I believe that the Bill makes the office plausible only at the expense of defining its 67 functions in such a way that the Ombudsman will be unable to carry out a useful purpose usefully.
Let us look at some of the limitations contained explicitly or implicitly in the Bill—explicitly because of what it says, and implicitly when it is read in conjunction with the policy statement in the White Paper, of which it is the perfectly faithful intepreter. Matters of Ministerial or official discretion are excluded. What is the difference between discretion and maladministration? We are not told. What is clear is that the Enaharo case, for instance, would have been outside the province of the Ombudsman, as would the issue of industrial development certificates and a vast number of discretionary things which are precisely the subject matter of Parliamentary complaint.
Policy is outside the province of the Ombudsman, in spite of the fact that the operation of policy upon the individual citizen is the very heart and soul of the Member of Parliament on either side of the House seeking to give effect to the grievances of his constituents. Matters needing legislation are outside the Ombudsman's province; matters covered by a tribunal are outside his province; matters relating to Government contracts—a fruitful source of injustice—are outside his province, as are matters relating to the nationalised industries—and these for all practical purposes include the Post Office, having regard to the small print at the end of the Schedule; matters affecting the police, such as the McWalters case, are outside his province; and, above all, personnel matters are outside his province.
My criticism of the Bill is that it provides a grievance machinery which carves up the areas of possible grievances in what must ultimately be an arbitrary way. The hon. Member for Nelson and Colne (Mr. Sydney Silverman) pointed this out in relation to local government, but it is equally true in relation to many of the spheres of activity which I have mentioned. A grievance machinery which carves up the machinery of government in such a way will render that machinery largely ineffective to do what it is designed to do, and I shall come in a moment to the way in which this could be remedied. Grievance machinery must not be differentiated if it is to be effective machinery in 68 the hands of a Member of Parliament desiring to play his proper part in criticising and controlling the Executive.
This brings me to the position of hon. Members under the Bill. We must be particularly careful and cautious in the welcome we give to proposals of this kind. I accept the good faith of the right hon. Gentleman and his colleagues in saying that they sincerely believe that this is a powerful new weapon in the hands of the Private Member. I wonder, first, whether it is, and for this purpose I make the assumption which I did not make for my first point that there is an area called administration which is not policy and not discretion, in which tribunals are not available, from which the courts are excluded, and which has nothing to do with personnel or contracts. I doubt whether there is, but if there is let us consider how it will work, first from the point of view of the member of the Executive and the individual hon. Member, and second, and even more important, from the point of view of the constituent and the responsibility of the individual Member for his constituency and his constituent, and the relationship of confidence that should subsist between them.
First, from the point of view of the Minister, suppose one finds an example of personal grievance which amounts neither to the misuse of discretion nor to the inevitable consequences of a doubtful policy and one writes to the Minister. The Minister can take a very simple course based not upon bad faith but upon the kind of pressures to which all administrations are subject. The genius of this House largely consists in the ability of hon. Members to bring Ministers here for criticism and to defend their conduct on the Floor of this House. That is why this House is reported and Congress is not, because there the members cannot bring their Ministers on to the Floor of Congress at the suit of the individual member to question them about their conduct.
That is why, for instance, foreign Parliaments adopting the method of Ministerial responsibility are reported and the London County Council was not and its successor is not. The genius of Parliament consists in the dramatisation on the Floor of the House of the questioning by a Member of a Minister. A Minister faced with such a complaint as I have mentioned will offer to refer it to the 69 Ombudsman himself, or alternatively and rather more subtly, invite his correspondent to refer the matter to the Ombudsman if he does not like the Minister's Answer. By that he achieves every possible advantage. In the first place, while the inquiry is going on, he will stall on further criticism.
§ Mr. Sydney Silverman
Suppose the Minister concerned were so unco-operative as the right hon. and learned Gentleman is describing, what is in this Bill to prevent the Member of Parliament from exercising every one of the rights he now has?
§ Mr. Hogg
May I follow this up, because I think I am on precisely the same point as the hon. Member for Nelson and Colne, although I would prefer to deal with it in my own way? If he does, in fact, decline the Minister's invitation, the Minister, coupled with his Parliamentary majority, and coupled with an Answer which at any rate on the surface appears plausible—we know from experience how plausible official Answers can sometimes appear when they are truly perverse—will add for the benefit of hon. Members behind him, "I invited the hon. Member to refer this matter to the Ombudsman and he declined. Does that not show that there is nothing in it?" If he accepts the Ombudsman's proposal, the Minister will either quietly accept the recommendation when it comes without there being any advantage to the hon. Member or, if the Ombudsman reports in favour of the Minister, he will claim that this rejection of the complaint disposes of the case. I am quite certain that this, if it works at all, will work to strengthen the hands of the Executive at the expense of the individual Member.
§ Mr. Denis Coe (Middleton and Prestwich)
The right hon. and learned Member seems to want it both ways. Will he accept that, under the present Bill, if an hon. Member is able to go to the Parliamentary Commissioner and the Parliamentary Commissioner carries out a full investigation, the Minister will not be able to give what the right hon. and learned Gentleman referred to as perverse Answers to the hon. Member in the present situation?
§ Mr. Hogg
On the contrary, I think he will give perverse Answers and invite 70 us to go to the Ombudsman for a private inquiry. But before coming back to that, I want to look at the obverse of this matter, the relationship between the Member of Parliament and his constituents, because I think this is even more important and even more doubtful. Hon. Members opposite, and I think one of my hon. Friends, raised the question of the relationship of Members of Parliament between one another. I do not know of the experience of other hon. Members, but I have already received three requests to put matters to the Ombudsman.
§ Mr. Crossman
It is not fair to talk about "the Omsbudsman". We have explained that the Parliamentary Commissioner differs from the Swedish model. I wish the right hon. and learned Gentleman would describe the proposal in the Bill as it is.
§ Mr. Hogg
I have no desire to be discourteous. But for that reason I have described, I believe I am correct in referring to the new official as an Omsbudsman, and I regard his christening as a Parliamentary Commissioner as a concealment of his real nature. But I will call him by any other name which the right hon. Gentleman prescribes if I can remember to do so. All I am trying to do at the moment is to see the operation in practice of what is proposed. I have already received three requests to put grievances before the Ombudsman, or the Parliamentary Commissioner, whichever we call him. It is not insignificant that the requests mentioned him by name and called him "Omsbudsman", which is how he is known to the public, whatever the right hon. Gentleman says.
What is an hon. Member to do when faced with this situation? Clearly the constituent would be wholly dissatisfied if the Member dealt with his request on existing lines. Let not hon. Members think that this has anything to do with the personality of the particular hon. Member concerned, because we are all in this kind of situation. The constituent is wholly dissatisfied with the service he would receive in the ordinary way. He would regard what his Member of Parliament now does as second best to this new broom which is being introduced into our Parliamentary system. 71 Is the hon. Member to say, "No, I will in fact raise it on the Adjournment; I will write to the Minister; I will ask a Question."? In that case, what the constituent will do is to write to another hon. Member and say, "I have written to my own constituency Member and he does not seem sufficiently interested to take it up with the Parliamentary Commissioner."
I beg the House to believe that I am not inventing cases. Hon. Members will know that I have been a member of one House of Parliament or the other for very nearly 30 years. During that time I have fought as a constituency Member one unsuccessful action after another to stop purely unnecessary material coming before the authorities. I have tried to do my duty in that respect, but in each case the sheer pressure of constituency opinion has compelled me to do what I was unwilling to do, and I do not believe that I am less conscientious or responsible than the average Member. In practice, if the right hon. Gentleman believes that the Member of Parliament will act as a sieve to reduce the case load of the Parliamentary Commissioner, he is absolutely deluding himself. There will be a mass of stuff coming forward, and he will not be able to hold it back. This is true in relation to hon. Members on this side of the House and in relation to those opposite.
§ Mr. William Molloy (Ealing, North)
Is not the argument of the right hon. and learned Member that a mass of stuff will come forward almost proving the necessity for this form of Parliamentary Commissioner? The right hon. and learned Member cannot have it both ways.
§ Mr. Hogg
I have never sought to have it both ways, but I have never said that the mass of stuff will result in genuine complaints being remedied. I believe there is a mass of grievances, some of which will prove wholly frivolous on the face of it and some will prove frivolous on investigation, but most of it will be outside the terms of reference of the Parliamentary Commissioner altogether. The right hon. Gentleman has not given us a single instance in a modern case of where the Parliamentary Commissioner could be used nor has he given us 72 a fair positive definition of his terms of reference as contained in the Bill. On the contrary, we being in some doubt, as hon. Members clearly are, as to the exact limits of his jurisdiction we shall be driven into asking the Parliamentary Commissioner himself to define his terms of reference as he goes on.
§ Mr. Crossman
I gave one or two instances in concrete form in regard to planning permissions. I sought to shorten my speech, but if necessary I could take Department by Department and show what is out of order and what is in order. It is slightly improper to suggest that there is not anything to be done because I did not list it and make a speech longer even than it was.
§ Mr. Sydney Silverman
I am following what I think is a very interesting argument. What I am not sure about is whether the right hon. and learned Gentleman is arguing for an extension or for a limitation of the jurisdiction conferred upon the Commissioner by the Bill.
§ Mr. Hogg
What I was about to do when the hon. Gentleman asked that very pertinent question was to answer that very point myself. I was about to say that, although I am myself wholly unconvinced of the existence of a field of activity such as this appropriate to be dealt with by this machinery, I recognise that the Bill will become law. It is an experiment which has to be made, because it is supported by not only the Government of the day but by a very highly respectable body of public opinion which wants it tried. I was anxious not to leave a purely negative criticism as my only contribution to the debate.
I personally feel that the Government should rid themselves of the idea that the individual Member of Parliament should play the precise part figured for him in the Bill and in the right hon. Gentleman's speech. I am far more 73 attracted by the original suggestion contained in the Prime Minister's speech at Stowmarket, to which the right hon. Gentleman referred. Let the Government rid themselves of the idea that they can reduce the case load on this new official either by defining his territory precisely and casting off matters of discretion and matters of local government, or by trying to sieve it through the individual Member of Parliament. Let him go back to the original model on which Sir John Whyatt based his analogy, that of the Comptroller and Auditor General, who is subject to the Public Accounts Committee.
Contrary to the general impression, the Public Accounts Committee is not an example of a specialised committee in the House. It is a general committee. It covers the whole field of financial administration and so, under its authority, does the Comptroller and Auditor General. He audits the whole of the public accounts—in most fields every year by a spot audit, and in some selective fields by an individual audit—but he works to the requirements and under the surveillance of the Public Accounts Committee.
Let the House be asked to set up a generalised committee, a Grievance Committee, which will control the work of the Parliamentary Commissioner. Let it make it its business to refer to the Parliamentary Commissioner either individual complaints or generalised complaints to which it feels that adequate ventilation has not been given. In dealing with matters referred to it by individual backbenchers, let it make it its business to ensure that the individual back-bencher has already exhausted, so far as is reasonable, the existing grievance machinery—not acting pedantically or overbearingly, but as experienced Members of Parliament who form a Select Committee of this kind can be expected to act. Let the new Ombudsman or Parliamentary Commissioner work to the directive of that committee, and let it be chaired by a senior Member of this House, with respected Members of both sides giving him guidance.
That, I believe, would be to give us a new form of grievance machinery. It is grievance machinery which is consistent and compatible with our existing grievance machinery. Moreover, it is a 74 model which could be used within the committee system to build into every local authority in the land, where the grievance machinery is far more needed than it is in the realm of central government.
§ Mr. Crossman
I am interested in the suggestion being made by the right hon. and learned Gentleman. He has done what I asked him to do in considering the case which the Prime Minister put for a Select Committee. Do I understand that he is saying that his one modification, which would be not quite the same as we propose, is that the complaints for the Parliamentary Commissioner would be channelled to him, not from the individual Member direct, but that every individual Member's complaint would first have to be approved and sifted by the Select Committee? If that were the case, then that is something which we would have to argue about. Is the point that back-benchers should not be allowed to go direct to the Parliamentary Commissioner but that their grievances would have to be sifted by a Select Committee?
§ Mr. Hogg
I think that the Leader of the House has the point, but he should reflect upon it, as I hope he will do, without jumping to the defence of his original speech quite so rapidly. He rightly asked me to consider the Prime Minister's suggestion. I have done that, not in any party spirit, but in the light of my own criticisms of these proposals. I have already given my reason for thinking that the new machinery will undermine the position of the individual Member of Parliament vis-à-vis the Executive, and that it will undermine his position vis-à-vis his constituents.
But if, after exhausting his existing machinery, he can then go to a Committee of the House, consisting of Members from both sides, and say to its chairman or its members, "This is something which demands investigation" and if, under the authority of such a Committee, the Minister can be brought to book, in truth and in fact the individual Member of Parliament would be given an additional weapon in his hands, which is what the right hon. Gentleman has asked for. The difficulties relating to his constituents would cease to be effective, because he would not be able to yield to a demand that in the first instance the matter goes to the ombudsman. Finally, 75 the difficulties between individual Members would be smoothed out because they would ultimately be examined by a Committee of the House which would be aware both of its functions and its responsibilities.
§ Mr. S. C. Silkin (Dulwich)
Is the right hon. and learned Gentleman really saying anything more than that before the authority, whoever it may be, whether Parliamentary Commissioner or Select Committee, examines a particular case it ought to be satisfied that all the existing grievance machinery has been gone through? Is there anything in the Bill that prevents the Parliamentary Commissioner from exercising his discretion precisely in that sense?
§ Mr. Hogg
I think that there is everything in the Bill as at present drafted and as at present sought to be administered by the Government which would prevent that. It would be wholly unacceptable that a Member of Parliament should be told by an official, however eminent, that he was not to exercise a piece of machinery open to him by law. But it would be perfectly legitimate for a Member of Parliament to be told, as he would be told in the case of something referred by him to the Public Accounts Committee, by the appropriate Committee of the House, "At the present stage the Committee does not wish to intervene".
Whatever grievance machinery the House adopts, there will necessarily remain a difference of philosophy, which is not connected with the grievance machinery, between hon. Members opposite and us on this side of the House. The need for a grievance machinery is created by the vastly encroaching and developing power of the Executive and of public authority generally on the individual. We on this side of the House believe that the need for a grievance machinery will be reduced only by reducing that encroachment.
§ 5.10 p.m.
§ Mr. Norman Haseldine (Bradford, West)
As a Yorkshireman, I am honoured to represent a constituency within a great Yorkshire city. Bradford is renowned not only throughout the length and breadth of the land but throughout the world. The contribution made by the citizens of Bradford to our industrial 76 effort is considerable, not only in the wool textile industry which earned £155 million in exports last year, but also in the field of engineering and many other diverse industries.
I rejoice with my hon. Friends who represent Bradford that the Prime Minister will be installed as the Chancellor of the new University of Bradford on 5th November. This is a fitting tribute to a great Yorkshireman by a Yorkshire city. Our university will, I am sure, make a notable contribution to the industrial and academic life of the city and the region, continuing the valuable work which it commenced as an institute of technology.
My predecessor in this House, Arthur Tiley, was well respected on both sides. I am sure that he was in all respects an excellent Member. He served this House as a managing trustee of the Members' Contributory Pension Fund, and for his special abilities in this field and for his contribution we are all grateful. He had a reputation as a hard working constituency man and I shall do well to try to emulate his example.
Bradford has a strong feeling for politics, and many a lead has been given by the City of Bradford. It is a city which has never been afraid to venture into new fields or to try new methods. To speak, therefore, in this House as a representative of Bradford on what I regard as a vital matter of reform and modernisation of Parliament is in keeping with the tradition of this City.
The presentation of the Parliamentary Commissioner Bill is in itself praiseworthy. Not only is it a redemption of yet another election pledge which we on these benches gave; it is a bold step in modernisation and an acceptance of greater humanity in Government. In our system surely it is our responsibility as back benchers to see that this is so, and at the same time to recognise that for the good of all there can never be too many checks on government.
The Swedish Parliamentary Commissioner, appointed over 150 years ago, was, I understand, appointed against the wishes of the Government of the day. It is heartening, therefore, that this Measure should come to us as a Government Bill. The appointment of a Commissioner will, I believe, strengthen rather 77 than weaken the power of the back bencher, and, with it, the citizens' rights.
In my very short experience in this House I recognise, as the Study of Parliament Group said, thatMembers cannot themselves effectively pursue the ramifications of individual cases through the departmental machinery, or themselves check that official explanations, in cases of alleged grievances, are reasonably based on complete and accurate information.That a citizen need not bring a matter through his own Member is important and removes immediately a problem which well might arise from the citizens' point of view. We must never lose sight of the fact that the whole purpose of the Bill is to enable investigation of administrative action taken on behalf of the Crown.
I shall I not be alone in wishing that this Bill gave to the Commissioner greater powers and a wider field of investigation, and within reasonable time such a demand can reasonably be made. I am persuaded, however, that experience will be the great teacher and legislator in this matter. This Bill falls far short of the powers and field of the Danish Commissioner but here, too, experience in a limited field has been the forerunner of wider legislation. We start in the knowledge that the appointment will in itself be a great deterrent, knowing that there is such a check on the abuse of power.
I find Clause 10 somewhat vague, concerning the laying of special reports before the House and the provision for an annual report. The assurance given by my right hon. Friend the Prime Minister on 4th August, that it is the intention to appoint a Select Committee, will be widely welcomed and I am sure that others will join me in hoping that we can still be more enlightened on this point. We are at a stage in matters of reform where opportunities to introduce legislation of this nature, fully in line with the sincere desire to modernise, should not be lost for one moment in relation to this piece of legislation which in itself is a great step forward.
That this Bill restricts investigation of any action taken by a Government Department or other authority to which the Bill applies, but specifically exempts a local authority, is undoubtedly one of the most criticised aspects of the Bill. My right hon. and hon. Friends on the Front 78 Bench are well aware of this, as they are equally aware that perhaps the greatest number of complaints arise out of actions by local authorities. I am sure the House will emphasise this fact again today. For my part, I am prepared to gain from the initial experience of the operation of the Measure as it is presented, but I believe there will be a growing demand for early widening of powers.
I hope that in the winding up of the debate we shall be enlightened on the interesting point made twice by my right hon. Friend the Prime Minister at Question Time in August, that there is nothing to prevent others, particularly the major local authorities, from setting up their own machinery, instead of having it done centrally for them. Without expanding the argument, I feel that many will share the view that there will be widespread dissatisfaction if we leave this matter for individual authorities to investigate complaints against themselves. This is precisely the atmosphere that many wish to avoid.
It is because we have trust in the nature of the appointment by this House that such a solution at local level would be widely unacceptable. I trust that experience will quickly enable us to grant powers to the Commissioner to initiate inquiries on his own initiative—such matters as may be revealed in the Press, and which may be considered by a Select Committee as suitable for investigation.
As time and experience proceeds, the Commissioner will, no doubt, find it essential to enlarge his senior staff, or it may, indeed, be considered advisable to appoint a deputy Parliamentary Commissioner. Would it not be worth while considering the appointment of a woman to such a post? I suggest, with respect to the womenfolk, that not less than 50 per cent. of the grievances will emanate from the fair sex.
I am enthusiastic to see this experiment get off the ground. I shall be tolerant about the initial inadequacies, but this must be more than a mere token of modernisation; it must be—and I am sure the House wishes this—a real determination to see grievances investigated and in all cases to see that justice is done.
We surely want to see the office of Parliamentary Commissioner respected. We shall want to see that Ministers do not 79 interpret too widely Clause 11(3) which contains the expression:… would be … contrary to the public interest.This exercise is surely for the public interest, for respect for Government and for respect for Parliament and Parliamentary institutions. It must be democratic and, again, it must be seen to be democratic.
§ 5.20 p.m.
§ Sir Lionel Heald (Chertsey)
It is always an honour to congratulate a new hon. Member on his maiden speech, and I am particularly glad to have the opportunity of following the hon. Member for Bradford, West (Mr. Haseldine), because he succeeded, as I am sure the House will agree, in making, without being in the least controversial, a very definite contribution to the debate and showing us that he is going to be not only very interesting in subjects concerning the rights of the individual citizen, but also a means by which the citizen may feel happier about the way in which he is governed.
I believe that the hon. Gentleman has considerable experience in public relations with a very large and well-known organisation, and it may well be that it is that experience which prompts him to be very zealous for the individual citizen. In that respect, I hope that I shall have many opportunities of co-operating with him, although no doubt there will emerge subjects on which we shall not agree as we do about this one.
I am glad to be able to agree with him about the general desirability of the purposes of the Bill. I shall certainly not oppose it. I did not oppose the idea when it was introduced some years ago. I have always been interested in it. But I must say that the complications and, to some extent, confusion of the discussion today is due to a cause which, I am afraid, impels me to say that the House has not been properly treated over the Bill.
I remind the House that there have been no opportunities to debate this matter. There was a White Paper in October 1965, and there has been no discussion of that at all. I can only find one speech on the subject, and that, I am sorry to say, was mine. I spoke about it in the debate on the Address in 1965, when I tried to point out some of the defects that have been discussed already 80 today and to ask that they should be taken into account, that there should be opportunity for debate on the White Paper before the Bill is drafted, and that, when the Bill did arrive, serious consideration should be given to the proposal, which has been endorsed by the Study Group under the chairmanship of Sir Edward Fellowes, and including such eminent persons as Professor Crick, that it should go to a Select Committee, where the sort of difficult subjects we have been discussing today, and about which we still do not know much, could be gone into.
Without repeating what I said in November, 1965, I will try quite shortly to indicate what I have in mind. I take as my text the statement in the White Paper on which the Lord President rested much of his case. I am sorry that he is not here. He has just chosen this moment to go out, but perhaps he will be apprised of what I have said. The White Paper stated:We shall give Members of Parliament a better instrument they can use to protect the citizen, namely, the services of a Parliamentary Commissioner for Administration.As I see it at the moment, and as I said last November—there has been no change from the White Paper—that just is not the case, except to a very limited extent.
During the sixteen years I have been a Member of this House, I have had many cases of grievance which I have dealt with personally, and I have found that a very large number of these have concerned matters excluded by the Bill. Indeed, if we are to interpret "maladministration" in the way in which I think it will be interpreted, I consider that more than half the sort of cases I have had to deal with and have dealt with will be excluded. I have taken up cases with Governments of both parties, and I have always found—and I certainly include the present Government in this—that the junior Ministers in particular have been most helpful in many cases. I know that many of my hon. Friends have found the same thing.
I have had cases from the Navy, the Army and the Air Force of individual grievances. For example, I remember a very bad case involving a question of married quarters. That was raised and dealt with, but such cases are "out"—all of them—according to the Bill. We ourselves will be able to deal with them, but we shall not have the assistance of 81 the Ombudsman. Therefore, although the right hon. Gentleman says that he is going to sharpen our swords, we shall not be better off with such cases at all. I have also had cases concerning the Post Office and postmen and they have been dealt with. They will not be able to be investigated by the Parliamentary Commissioner. As Members of this House, we have the privilege of writing direct to the Chairmen of the National Coal Board and the British Transport Commission, and I hope that we exercise due discretion in doing so. I have done so myself, and my representations have been dealt with. But such cases are also excluded by the Bill.
I have had cases concerning the Colonial Service, but they are to be excluded. British subjects abroad will be excluded. So will the police and the hospital boards. Yet all these are matters which Members of Parliament can deal with now and I cannot help thinking that some sort of Whitehall Protection Society has been at work behind the scenes, because the general public were originally given quite a different idea about what this Bill would do.
I have here a most interesting document—an extract from the New Statesman of 25th September, 1964, by a gentleman called Mr. Michael Stewart, M.P. I will read some of what he wrote. It is interesting to know that his name is not among those on the back of the Bill. When I have read out this quotation one may understand perhaps that he is probably rather relieved that his name is not included. He wrote:The Commissioner will be concerned with those episodes …he gives several categories of these, the third of which is,… where all the authorities have behaved correctly, yet the result is absurd or unjust.But that is exactly what we have been told today is not to be. A case which is not a case of maladministration is to be excluded. After all, some of the greatest bureaucratic injustice is done extremely efficiently. Further on in his article, this eminent' member of the Government whose name is not on the back of the Bill wrote:Further, there are cases involving the police or staff of prisons or mental hospitals where evidence conflicts and the executive 82 wishes to protect its servants. A tribunal under the 1921 Act may be too ponderous; yet the collective authority of parliament, rather than of a single M.P., may be needed to discover the truth. It is this collective authority which an Ombudsman … would represent.In other words, the appointment of an Ombudsman would enable us to deal with questions of police or of hospital administration. Now, however, we are being specifically told that the Parliamentary Commissioner will not deal with such cases. Where are we? The Lord President is not here and I suppose that I may have the same result from this debate that I had last November, when not a single word was said about the matters I raised. I did not speak at great length, but since then I have not heard a single word about it, although I said that those Conservative lawyers who are interested in the matter would be particularly glad to co-operate in putting forward suggestions or taking part in informal discussions.
Where are we? There is the Secretary of State for Economic Affairs, who thought that was what it was going to do. A lot of people were told that that was what it was going to do, and they think so today. I have given people the sort of list that I have mentioned to the House, and I have told them that those matters will not be in. They have said that they do not believe it. I was talking about it the other day to several people at a place on the Lancashire coast, and they said that they did not believe it. But, apparently, it is true. That has surely got to be investigated. As for the boundary between maladministration and discretion, that is something which will cause the greatest difficulty. It is the kind of thing which the Parliamentary Study Group thought ought obviously to be the subject of careful consideration and discussion by a Select Committee.
I do not say that these matters cannot be dealt with by amendment. However, our experience so far suggests that we may well have the same attitude from the Government as we had about the Selective Employment Tax and other matters, where they listen to the debate—often they do not even listen to it—and take absolutely no account of arguments put forward from this side without any political bias or partisanship. I hope that on this occasion we shall be told that some notice will be taken of genuine 83 criticisms and difficulties which are put forward.
I think that I have said sufficient by being able to quote the words of a right hon. Gentleman who is now a very important member of the Government. I believe that he is now number 3 in the triarchy. That is what was thought by a man for whom we all have the greatest respect and who is more interested in the individual and his rights than many people; that is what he thought "we were going to do. Well, "we" are not.
The present situation is a very serious one, where a Bill dealing with a matter of the greatest importance is going forward in a fog of uncertainty. I still think that the Select Committee procedure would be the desirable one for the Bill, because I am afraid that we shall get into committee, that amendments will be put down and voted upon on party lines and there will be no constructive amendment to the Bill at all. I do not believe that that is what the House wants. I am sure that there could be genuine co-operation between the parties and that we want to try and forge a useful instrument. However, at the moment I can only reinforce the views of the Society of Individual Freedom, which has described the Bill as "half-baked".
§ 5.34 p.m.
§ Mr. Hugh Delargy (Thurrock)
I hope that the House will forgive me when I say that the Bill gives me personal satisfaction. I was about the first person in the country to say that we should have a Parliamentary Commissioner. Over seven years and eight months ago I began a newspaper column with the words:What we want is an Ombudsmand.In that connection, I would like to say something about the word itself. I hope that it will now be dropped, although I have been using it myself for about eight years, because it is now being used by opponents of the Bill to smear the issue, and it is being used deliberately because it is a foreign word. However, I would urge people who are opposed to the Bill and who are using this foreign word at least to get it right, because there is no such word as "Ombudsman." He does not exist. The word which the Scandinavians use is "Ombudsmand", and, if anyone wants to call him that, let them do so.
84 The right hon. and learned Member for Chertsey (Sir L. Heald) said that until today there had only been one speech on the subject in the House of Commons and that that was his own in November 1965. However, several speeches were made in the House on 19th May, 1961, during the course of the Whitsun Adjournment debate. It was fairly lengthy, as Adjournment debates go, and lasted about two and a half hours. At the end of it, the Conservative Government spokesman, the then Solicitor-General, was optimistic about such an office being set up. He said that all the Government were waiting for to solve the problem of individual grievances against the State and its servants was the publication of the findings of Sir John Whyatt. He inferred that, after that, they would go straight ahead and appoint a Parliamentary Commissioner.
Sir John Whyatt was then in Denmark, having been sent there by "Justice" to see whether or not their system might be introduced into Britain. Shortly after the debate, he published his report and was enthusiastic about having a similar office in Britain. However, from that day, we did not hear another cheep out of the Conservative Government. It ill becomes any member of the Opposition to blame the present Government of inattention to the matter when, having promised to do something about it, they never mentioned it again.
It did not surprise me, however, and it does not surprise me now. Before the matter was first discussed, I said that neither of the two main parties would accept the idea until there was a big public demand for it, at which time they would both go head over heels for it. That forecast was only half true, because the Labour Party has accepted the idea even though, regrettably, there has been no great public demand for it. I have been talking about it for nearly eight years and, during that time, I have received fewer letters about it than I have received in one week about Radio Caroline and Radio 390. If the mail of hon. Members is anything to go by—and because one has half a dozen letters on a subject, it does not mean that everyone is thinking about it—the one subject which the British public is passionately interested in is pirate radios. Nevertheless, the 85 present Government have adopted the idea, and they are to be commended.
I can see already that there is far more opposition to it than I had anticipated. Already we have read opposition to it in the Press, and now we hear it in the House. We had a long speech from the righ hon. and learned Member for St. Marylebone (Mr. Hogg), and I knew that he was opposed to it because we had a radio discussion about it a long time ago, during the course of which I rebuked him for using the word "Ombudsman".
Some people say that it will not work. Some say that it is not necessary. Others say that it does not go far enough. The right hon. and learned Gentleman is one of those who say that it will not work. Whereas people admit freely that it works admirably in smaller states such as the Scandinavian countries and New Zealand, they say that it will not work here because our population is very much larger. I find that argument extremely odd, because I should have thought that, the larger the population, the more grievances there may be.Quot homines tot sentetiae …I drop that one in to show that the right hon. and learned Gentleman and my two right hon. Friends are not the only ones who were taught Latin. It means, in this context, that there are as many opinions as there are men, and I would say that there are as many grievances as there are men, so I do not see any force in that argument.
Others say that the Bill is not necessary. As the right hon. Member for Enfield, West (Mr. Iain Macleod) wrote in a newspaper this morning, every constituency has its own Ombudsman, a sentiment which was echoed by my hon. Friend the Member for Aberavon——
§ Mr. Delargy
This is not an argument, it is only a slogan. It may please some constituents, but it will not please the better informed ones. Of course a Member can render great service to his constituency. He can write to Ministers, or he can see them 86 privately. He can ask Questions in the House, and raise personal grievances on the Adjournment, but there are severe limits to what he can do, and we all know them.
At Question Time a Member asks a Question. The Minister reads the skilful and evasive answer which has been carefully prepared for him, and to the supplementary question he gives an answer which again his skilful advisers have got ready for him. Only the Member and the Minister know what it is all about anyway. Everyone else in the House, including Mr. Speaker, wants to rush on to the next Question, and at the end neither the Member nor his constituent is any better informed than at the beginning.
Similar dangers lie in the Adjournment debates. There can be long delays. We hope to be lucky in the ballot, or for our subject to be chosen by Mr. Speaker, but we cannot all be accommodated at once, and when we finally come to the Adjournment, to where these personal grievances can be raised, and where this immense power that we are supposed to have can be used, it is either late at night or early in the morning. The day's business is over, and one's colleagues on both sides have gone to bed. The Press have gone home, and there is no publicity for the grievances. It is too late for the morning editions, and too far away for the evening papers. The only persons present as a rule are Mr. Speaker, the Minister, the Member and the faithful reporters of HANSARD. I do not think that this gives such immense power to the back bencher that he does not require further power, and this he will get under the Bill.
That does not mean that the Bill as presented—and very well presented it was by my right hon. Friend—is perfect. Many of the questions raised here will have to be settled in Committee. The complaint made by the right hon. and learned Member for Chertsey seemed to me to be an argument not for having a Parliamentary Commissioner, but for having several; we are not giving him enough to do; he is not getting enough authority.
The back bencher will retain the power that he has now. The Bill will not take that away, but there are people who say that the Bill does not go far enough. My hon. Friend the Member for Holborn 87 and St. Pancras, South (Mrs. Lena Jeger), whose delightful column I read regularly, made some criticisms about that this morning. She is right, as she always is. Unlike the Swedish official, the Parliamentary Commissioner will have to wait for complaints to be sent to him. He will not be able to go out looking for them. Local authorities will not come within his jurisdiction. Perhaps "jurisdiction" is the wrong word, because he will not have any jurisdiction. They will not come within his terms of reference, nor will the Armed Forces, or the police. He will not be able to inquire into any of these matters, but, as my right hon. Friend said when introducing the Bill, we are getting not an Ombudsman, but a Parliamentary Commissioner. Anyway I should like to see the thing get started, and I welcome it for the reasons which I have given.
Everyone is delighted—or at least nearly everyone—that the man appointed to the post is not a lawyer or a judge. It could, with great profit, be written into the Bill that all lawyers will forever be ineligible for this post.
§ 5.45 p.m.
§ Sir Hugh Lucas-Tooth (Hendon, South)
The hon. Member for Thurrock (Mr. Delargy) welcomed the Bill by saying that what we want is an Ombudsman. He then went on to admit that the Leader of the House chided my right hon. Friend for saying that the Bill would produce an Ombudsman. I do not think that this is a mere matter of words. I agree with the hon. Gentleman that what we want is more power for the back bencher, and what I fear is that the Bill will take it away and not give it.
§ Mr. Delargy
If a journalist wants to capture the attention of his readers, he does not begin his article by saying that what we want is a Parliamentary Commissioner. It is easier, and more likely to succeed, to say that what we want is an Ombudsman. In any case, that was eight years ago.
§ Sir H. Lucas-Tooth
The general purpose of the Bill is attractive. It attempts to solve a problem which I think we all feel severely in the House, and which is certainly felt severely by many people outside. The immense increase in public administration has produced many difficulties, 88 and indeed hardships, and undoubtedly it will go on doing so increasingly.
There are two problems here, and they were referred to by the Leader of the House in his speech. There is, first, the constant demand for some means of reviewing decisions made by officials. Secondly, there is the need for some better means of investigating complaints made against officials. Those are two separate problems though they often overlap one another.
The existing machinery for dealing with them both is, of course, the Member of Parliament. Officials are responsible to a Minister. The Minister is responsible to Parliament. Every citizen has access to his Member of Parliament, the Member can write to the Minister, he can see the Minister, or he can raise the matter in the House. Unfortunately, however—and I think we all recognise this—the effectiveness of the Member of Parliament is declining. Officials, and, I am sorry to say, even Ministers—Ministers on both sides; I am not making a party speech—tend to cover up for their Departments, and who can blame them? While this is going on, the sheer volume of administrative work is tending to clog the table of every Member and to make his job more difficult.
We see that in the difficulty which we have in getting down a Question which will be answered orally. Even now, and there has been some improvement recently, it is sometimes a matter of six weeks or two months before one has a chance of getting down a Question for oral answer, and getting an Adjournment debate is something which some of us think is almost an impossibility. Even I can remember during my time in the House hon. Members getting up at Question Time and after getting an unsatisfactory answer saying, "Mr. Speaker, I beg to give notice that in view of the unsatisfactory nature of that reply I shall raise the matter on the Adjournment tonight". We have moved very far from that even within the 40 years that I can remember in this House.
There is another factor which is tending to make the Member less efficient, and that is the growing strength of party organisation, with what is generally called the professionalisation of Members 89 of Parliament. I do not mean to say anything derogatory about any hon. Members. What I mean is that we are tending to become more full-time, and more dependent on the party machine. That goes for hon. Members on both sides of the House. As a result, it is more difficult for a Member of Parliament to criticise as fully as he might what is going on within the Department of one of his hon. Friends—if his hon. Friends are in office. He is also inclined to over-state the case when the other side is in office. Even if what I am saying now is something of an overstatement I am not overstating the opinion of many people outside the House—which is just as bad.
Every hon. Member receives complaints from people outside his constituency, saying, "I do not like to write to my own Member about this because he is a Labour Member", or a Conservative Member, as the case may be. I have tried to estimate the number of personal complaints which I receive about the actions of officials of one sort and another. I mean complaints about pensions, postal services, policemen, planning decisions, the choice of schools, and so on. I receive about 500 of these each year, and if this is a fairly representative selection it is clear that about 300,000 such complaints are received by all hon. Members each year. All these are objections to actions taken by officials. When they come to us they generally take the form of complaints of maladministration.
The questions which we are all putting to the Government this afternoon are: How widely is the Bill intended to extend? How far will the Commissioner's work really go? What do the Government really intend? Shall we have 10 cases investigated a year, or 100, or 1,000 or 10,000? What is in the Government's mind? The Leader of the House indicated that it would be a smallish number, but he did not give a precise figure. Clause 5, which is the important Clause in this connection, provides that the Commissioner may investigate a matter whena member of the public … claims to have sustained injustice in consequence of maladministration.If there has been injustice there must have been maladministration. Even this Government would not claim that any of 90 their deliberate actions was intended to produce injustice. Yet injustice is always claimed. Every hon. Member will agree that such letters from his constituents are always couched in terms which indicate that they feel that they have suffered some injustice. I do not believe that the words "in consequence of maladministration" add anything to the meaning. Maladministration can have a narrow meaning. It can mean corruption or neglect, or misfeasance, but it can also extend to ineptitude. I do not want to make a party point, but do not the present Government regard ineptitude as maladministration?
§ Mr. Crossman
It was on the list that I read out. Perhaps I read out the list too fast. It was a longish list, but it included ineptitude as well as turpitude.
§ Sir H. Lucas-Tooth
How can there be injustice unless there has been inepitude of misfeasance of some sort? In other words, this is wide open. It is open to the Commissioner to consider every one of the 250,000 or so cases which he could consider under the provisions of the Bill.
What do the Government intend to do? How do they intend to draw the line I listened with great care to what the right hon. Gentleman said, and to me it would seem extremely difficult, until an investigation has been made, to say of any specific case, whether there has been misfeasance or ineptitude or something else. Although it is not provided in the Bill, I understand the intention to be that the Commissioner shall not come in until the Member of Parliament has made some investigation. No doubt in the ordinary way that will take the form of a letter addressed to the appropriate Minister, and that Minister's reply.
The Member will be under the strongest possible pressure and temptation to pass the papers at once to the Commissioner, for reasons which have been put forward by my right hon. and learned Friend the Member for St. Marylebone (Mr. Hogg). The great majority of hon. Members are at present unable to go into these matters because they have no access to officials. A Member may not be satisfied with the reply that he receives and 91 may feel fairly sure that his constituent may not be satisfied with the reply but will come back with a request that the matter should be submitted to the Commissioner, and the Member will at once send the papers to the Commissioner.
One of two results can occur. There may be many disappointments. If that happens everyone, inside and outside the House, will say, "What is the good of sending papers to the Commissioner? He does not do anything", and the whole Act will fall into disrepute and disuse. Alternatively, there will be a misuse of the Commissioner. He will have to consider a vast number of cases without the proper care which should be taken, or perhaps with an enormously inflated staff. The result will be an undermining of the responsibility of Members and therefore of their work.
I do not know whether it was argued by the right hon. Gentleman this afternoon, but the Bill has been presented in the Press as being intended to help the common man vis-à-vis bureaucracy. That is what is generally felt outside. But it will do nothing to help the common man about the type of questions with which he is concerned—his pension rights, the choice of school for his child, the prevention of his home being pulled down or spoilt by some development, or something of that kind.
There is a real need for the Bill, and I shall not vote against it on Second Reading. There is a need to check the relatively rare case of bureaucratic misfeasance. That is what the Leader of the House was probably trying to say. But the Bill will need a great deal of amendment in Committee to produce that result, and there will have to be better machinery for the investigation of official dereliction. I agree that the present method is very hit or miss; it very often depends on the Member to whom the case first goes. Many Members take up such cases by correspondence. They may get a weak sort of answer; they write to their constituents and say they are sorry, and that is the end of the matter. Other complaints come to more active Members. There is a row in the House of Commons and there is a public inquiry. Many a good public servant has suffered as a result of such an inquiry and many 92 an unworthy fellow has profited as a result of the actions of great champions of freedom. But if there is to be such, machinery it must be used only in comparatively rare cases.
I should like to ask the Government three questions about the Bill. First of all, Clause 4(2) limits the scope of the Bill to functions exercised on behalf of the Crown. I imagine that that would make it applicable to functions exercised by agents of the Crown. I should like to ask, however, whether it is by servants of the Crown only. This is a matter of some importance. If the Commissioner could inquire into the actions of agents, it would greatly extend the possible scope—I think, usefully.
Second, is the Bill applicable in the case of those functions where the Minister has a responsibility for the efficiency of the body concerned—for example, the police? I imagine that there is no doubt that actions by the police in London would or might be subject to investigation, but I am not sure about police outside London. From what the right hon. Gentleman said, I think that the Bill, as at present drafted, would not be applicable to functions where there is a right of appeal to the Minister, that is to say, planning. This narrowing will completely destroy the value of the Bill.
There was a debate in another place on this very subject. It was an important debate, in which Lord Denning made an important speech, and cited three examples of what he thought were cases which gave good grounds for something in the nature of a Parliamentary Commissioner. Every one of those three would, I think, be excluded from the Bill as it is at present——
§ Sir H. Lucas-Tooth
The first was Mrs. Woollett's case. That was one of land which had been requisitioned, on which the requisition was rescinded, then de-rescinded and then rescinded again, to put it shortly. The second was a case concerning a chief engineer of Southend, who gave an incorrect undertaking about permissible use of land. The third was the refusal of a licensing authority to grant a taxi licence and to hear the evidence on which the licence was being claimed.
These were the cases given. All the really important cases, the ones which the 93 right hon. Gentleman and I both have in mind, will be excluded from the Bill and I think that all the wrong cases will be included in the Bill and will place an absolutely impossible task on the Commissioner as he is now envisaged. That is why I want changes made here.
Does Clause 5(3) prohibit inquiry into questions of naturalisation and deportation orders? Having been a Home Office Minister, I know how much those questions arouse annoyance and anxiety in the breasts of those affected and I know something of the difficulty of inquiry into those cases. I should like an answer about this.
Third, how far is the Bill retrospective? It seems, from Clause 6(3), as if the Bill would be retrospective for 12 months but it does not say so. The wording makes it look as if, when the Bill comes into force, any old case can be taken up during the first 12 months of the working of the Bill. I should like to know the right hon. Gentleman's views about retrospection. This would be important to a certain number of people.
§ 6.5 p.m.
§ Mr. A. J. Irvine (Liverpool, Edge Hill)
This is not a party issue which the House is discussing: it is a House of Commons matter concerning members of the House and the question of how best our functions can be performed. To my mind, one of the greatest privileges of being a Member of the House is the opportunity which one has of taking up with a Government Department or a Minister the case of a constituent who has suffered injustice. Anything in the least detrimental to that responsibility and privilege of ours is to be deplored. Henceforward, in a difficult case, we are invited to hand over the task to a Parliamentary Commissioner.
This is, in principle, to the detriment of hon. Members and will be so regarded in the future when this debate is seen in perspective. We seek what are conceived to be the advantages of specialist committees, morning sittings and so on, but all these do not weigh in the balance with the privilege and responsibility which we are here shrugging off. I do not want to develop alternative proposals more than a certain distance in this Second Reading debate. I was interested in what was said in an excellent maiden 94 speech by my hon. Friend the Member for Bradford, West (Mr. Haseldine) and in a point also made by my hon. Friend the Member for Thurrock (Mr. Delargy). They said that as things are at present, when hon. Members who seek to trace a grievance and an injustice to its source and to put it right by their own efforts and not by "passing the buck", pursue it to the room of the Minister or whatever lion's den is thought appropriate, they are met by certain difficulties. It was suggested by my two hon. Friends that difficulties stand in the way of the efforts made by hon. Members under this head.
I would acknowledge that that is so. I feel strongly, however, that, if it is possible to give to the Parliamentary Commissioner special powers to investigate matters and have greater discovery of documents and greater powers of inspection than have been available up to now, it is, by the same token, well within the capacity of the House to build up and work out a system under which hon. Members could have like protection for this purpose. Safeguards would be required no doubt. It would be a difficult task, but it is well within the capacity of the House to work out a method whereby powers and advantages which it is proposed should be given to the Parliamentary Commissioner should be available to hon. Members.
If most of my colleagues—I find this to be the case—feel the need of assistance from a Parliamentary Commissioner, I take account of that. Of course I do: it would be arrogant if I did not. But, on that view, the Commissioner ought, in my opinion, to be a colleague of theirs, a member of the House. This is the contention which I have pressed within my party whilst consideration of this matter has proceeded.
It is in my view a task appropriate to be undertaken by a senior Member of this House. It could be allocated to such a Member for the duration of a Parliament. In my view that would be the best way to deal with it and—though this no doubt is open to argument—I think that on the whole it would be better undertaken in any one Parliament by a Member of the party in Opposition for the time being. I will not go into the details of that proposal, but I suggest that to achieve a development on those 95 lines is much more in line with Parliamentary practice than the proposal in the Bill. It would be well within the capacity for improvisation and the skilful handling of human affairs which this House for a long time has been regarded as possessing. This House is, and should be, at its best when working out between individual Members of it and parties a solution to this kind of House of Commons problem.
If we gave to an hon. Member the kind of responsibility which I have just suggested, it would place him in a special relation with his colleagues. There would be a certain independence attaching to his position, marking him off from his colleagues in the House. His constituents might have the disadvantage of being represented by someone, who, because his colleagues gave him this position, was somewhat withdrawn from the party conflict. This I regard as the only major objection to this proposal. To my mind it does not outweigh the advantages of the kind of approach to this whole matter which I recommend to the House.
But what is worst of all—and I speak of this, I trust, as an acknowledged and recognised warm supporter of Her Majesty's Government—is that, as we all know, the whole matter has for all practical purposes been prejudged. There is a Parliamentary Commissioner designate. I have no doubt that if the selection had to be made of someone outside the House, this was an admirable selection, but the House is being used as a rubber stamp. It is perfectly clear that this is so. This Second Reading debate is the purest formality. The Parliamentary Commissioner designate has been journeying in the world, I understand, to study matters which are regarded as relevant to the duties which he is to undertake. The whole thing has been decided. This is as startling an instance of this House being used as a rubber stamp as I have ever come across in the whole of my experience.
This is not the way to treat Parliament. I have no doubt whatever that on that point an obvious and serious blunder has been committed in naming the Parliamentary Commissioner designate before this debate takes place. It is the worst thing possible for the House of Commons that it should be treated in this way. I shall 96 say no more about that because, having expressed the view which I feel bound to express, I insist on the opinion that the policies being pursued by the Government in difficult times are for the most part correct, and certainly infinitely preferable to the unformed and ill-digested proposals put forward by the Opposition.
But my right hon. Friends must remember—and I should particularly like the Leader of the House to remember it, because, heaven knows, he has had long enough experience on the back benches—that if they are to prevail over current difficulties, a serious regard for opinions expressed in this Chamber must be deep-rooted in their minds. It is of paramount importance that muddle and an over-weighted bureaucracy should be avoided. Objectives should be clear and as simply stated and achieved as possible, so that the public can understand what is going on. To achieve these purposes, which are tremendously important, particularly, in my view, for those on this side of the House, in the current situation, it is on the whole best that this House should at all times contribute and be seen to contribute to the shaping of events.
§ 6.15 p.m.
§ Mr. Bryant Godman Irvine (Rye)
For a great many years I have had the privilege of following the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) around various establishments in different parts of the country. I can honestly say that during the whole of that time I have never been able to find any great measure of agreement between what he said and the views which I wished to express. Today I have had the agreeable experience of finding a good deal of what he said entirely in accord with the views I hold. I hope that I shall not embarrass him in any way by saying so.
The fact that the Parliamentary Commissioner has already been appointed before we have even had the debate shows the contempt with which the Government are treating the House. Surely at least it would have been desirable for them to allow this debate to take place so that they could consider what hon. Members said and see the type of person required for the appointment. That at least would let hon. Members feel that the speeches which they were making might have some influence on the Government.
97 When I first read what was proposed, my view was that there was very little in it which would be of any assistance for the ordinary back bench Member. I came to that view because, having had a little experience in Scandinavia, I knew that there were a great many differences between what went on in those countries and the way in which this Parliament is organised. There have been passing references to some of these divergences today by the Leader of the House, my right hon. and learned Friend the Minister for St. Marylebone (Mr. Hogg) and others. I want briefly to refer to one or two more of these differences to show how suspect I think is the ancestry of this Bill.
We have had reference, for example, to the very small population in Denmark—4½ million—and I suppose that it is for this reason that the Ombudsman is able to say, "I have never refused to see someone who insists on seeing me personally". I do not know whether the Leader of the House feels that that will be the right way to run the office of Parliamentary Commissioner in this country. If he does, it will be rather a difficult arrangement to make.
I thought that I went with some care into the differences between Scandinavia and ourselves. I said that they do not have the situation of M.P.s taking up grievances by Questions and Adjournment debates. We have taken this into account and hope to strengthen M.P.s in that position. Clearly in our case the Ombudsman will not take over the job; he will reinforce the M.P. in his job, not take it over. This was explained at great length in opening the debate. The answer to the question is, "No".
§ Mr. Irvine
I was simply laying the foundation of my speech, and if the right hon. Gentleman had contented himself for a moment I hope he would have found that my next observation was of some relevance. I was about to say to him that there are two further reasons why the position in Denmark is entirely different. One is that when Ministers give their awards they have no legal obligation to give any reason.
§ Mr. Paul B. Rose (Manchester, Blackley)
Is it not a fact that since last year, as a result of the intervention of the 98 Swedish Ombudsman, the civil servants have to give their reasons?
§ Mr. Irvine
I was talking about Denmark, and what happens in Sweden is, I suspect, of no great relevance to that point. I hope to say a word or two about Sweden in a moment, and then perhaps the hon. Member would like to join in.
The main point I put to the right hon. Gentleman is that hon. Members in Denmark are elected on the basis of proportional representation. I had better leave it there because I would soon find myself out of order. However, the result is that in that country they have five Member constituencies and a Danish hon. Member represents at least 250,000 people. If one speaks to a Danish hon. Member, one finds that it is quite impossible for him to go around the whole of his constituency or to be as closely allied to his constituents as we in this country are. Indeed, if one speaks to the average Dane one finds it rare for him to know the name of his hon. Member. In circumstances of that nature, it is vital and essential to have an Ombudsman to do the work which hon. Members do in Britain.
In Sweden there are three Ombudsmen. I had the privilege not long ago of having dinner with all of them. We need not consider the work done by the Military Ombudsman in that country because a similar proposition is not before us. But, as for the other two Ombudsmen, not only have they an entirely different history but they do entirely different work compared with anything which I understand the Leader of the House is proposing for this country.
The Chancellor of Justice in Sweden was first appointed in 1713 because the King was out of the country for 12 years and somebody had to keep an eye on things and see that the administration was working. About a century later the Swedes altered the arrangement and defined his responsibilities in the Constitution of 1809. That is what he is still doing today, with certain modifications, one as recent as 1948.
When I had the privilege of asking him what he did—and he was good enough to take me around an attractive old palace, in a part of which is his office—two points were of particular interest. 99 First, he is responsible for the Freedom of the Press Act, 1949, and, in particular, this means that he is largely dealing with prosecutions concerning pornographic material in magazines. That has nothing to do with the sort of proposition the right hon. Gentleman the Leader of the House is proposing. The second of his important responsibilities stems from the fact that all advocates in Sweden must belong to the Swedish Advocates' Association. On any occasion when the Association criticises the professional standards of a Swedish advocate, a report must go to the Chancellor of Justice, who then decides whether or not there should be an appeal.
The Swedes also have a Civil Ombudsman. His post was established in 1809 because someone was wanted who would not be associated so closely with the Crown and the court. So Mr. Bexelius, who has been appointed to take charge of these responsibilities, finds himself without any instructions. While he is appointed by Parliament, by agreement between the parties no hon. Member of that country must in any way try to get him to take up a case. It is improper for an hon. Member in Sweden to ask the Civil Ombudsman to investigate an injustice. As a result, the Civil Ombudsman tours the country, visiting all sorts of places like courts, municipal governments, police, gaols, guardrooms, mental hospitals, institutions for alcoholics, homes for children and so on. In that way, he discovers the matters which he believes need his attention.
Some of the differences between the Swedish organisation and ours are so profound that certain facts must be borne in mind. For example, since 1776 all documents used as part of decisions made by Ministers are made public. Anybody can look at the files, and I commend that suggestion to the Leader of the House to urge on his brethren in the Cabinet. If only they could get over that difficulty we might not need an Ombudsman at all, and I will refer to documents later.
Another difference is that the Departments are entirely independent of the Minister. The judges and officials in Sweden are liable to heavy penalties if they are found to be in dereliction of their duties, and I am referring to penalties which are far higher than any that exist in any country. Perhaps most 100 important of all, there is no appeal from any administrative decision and no explanation is given about how such a decision is arrived at. If one is conversant with the system operating in that country, one cannot help being aware that an Ombudsman of that type is necessary in those circumstances, although it cannot be related to what goes on in this country. That is why I believe that the ancestry of the Bill is so misleading and why it is not relevant to the circumstances in which we find ourselves.
When talking to the Civil Ombudsman I asked him what sort of work he did and I found the greatest difficulty in following exactly what that work entailed, because he said that it was his task to see that the judges did their work properly. I discovered that the judges in Sweden are responsible for seeing that all the relevant evidence in a case is called. If a judge does not see that that is done, it is not the advocate's duty to see that all the facts are brought to the judge's attention. It is for the judge to see that it is done and, therefore, the Civil Ombudsman is a sort of court of appeal and reviews all these decisions.
The situation in New Zealand is also entirely different from the arrangements which exist in this country. There are three particular differences to which I will refer. First, in the New Zealand House of Representatives there are two committees to deal with public petitions. Only one sits constantly, but anybody can bring a petition to the New Zealand House and it is immediately considered by a public committee.
Secondly, New Zealand has no inquiries in the way that we have them in our Ministries before a decision is taken by a Minister. In that country a decision is made by a Minister and virtually no indication is given about how it has been arrived at. Thirdly, there are very few tribunals in New Zealand compared with Britain and, in that country, each tribunal has its own rules which are worked out to deal with individual requirements.
When we consider the possibility of having a similar arrangement to the setup in New Zealand, some of the comments made in the relevant debate in the New Zealand House of Representatives would surprise hon. Members, and 101 particularly the right hon. Gentleman the Leader of the House. The New Zealand arrangement cannot be regarded as a particularly good parallel. For example, I commend to the right hon. Gentleman what was said by the New Zealand Attorney-General. He said:Think of what value he could be to an Opposition! After all, in a debate on certain issues the dice to some extent are loaded in the Government's favour. The Government is in possession of all the facts. The facts may be in departmental files, and in some cases perhaps they may inadvertently not be brought to the attention of Government members. If this parliamentary commissioner is able to get all the facts and present them to Parliament it must be of great advantage to everyone. I have participated in debates, as a member of an Opposition, and I have been somewhat hampered because the Opposition did not have all the facts. I hope this machinery providing for a parliamentary commissioner will help remedy that situation.There is a suggestion, that the Leader of the House might like to consider, to add to the responsibilities of the Parliamentary Commissioner.
The work done in New Zealand by the Parliamentary Commissioner is, again, designed for dealing with something entirely different from the problems we have here. Land in New Zealand is taken virtually without any inquiry at all, and many speeches were made about the importance of changing the basis upon which land should be taken over, and so on. The Deputy Prime Minister said how important it would be to have an opportunity to get someone to look at the way in which railway stations were allocated. He gave the example of a railway line going through one of the villages in his constituency where the Minister had said that there would be no station. The Deputy Prime Minister said how nice it would be if only there were a Parliamentary Commissioner who could have that matter properly investigated.
What I am trying to put to the Leader of the House is that the ancestry of this proposition he is putting to us today is not in any way related to the type of problems with which we in this House have to deal. During the time I have been a Member I suppose that I have had at least as many cases put to me as has my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth). I can think of three in particular, none of which, as far as I can see, will be covered by this 102 Bill. One is the case of the man who first asked me if I would look into some difficulty he had had when he left the Police Force in 1925. A number of years have since passed, and he is just as dissatisfied about that decision now as when he first came to me. What shall I say to him when he writes, as he doubtless will, urging me to put the case before the Parliamentary Commissioner? All we shall find is that it is a case which is not available to the Parliamentary Commissioner.
A second case I can immediately recall is connected with difficulties that arose in Tanganyika some years ago when a member of the Colonial Service left his employment. Again, I cannot see that as a matter for the Ombudsman as proposed. I have a similar case, relating to the terms of appointment to the Colonial Service many years ago and, again, I fail to see how it will fall within the requirements of the Bill. Looking at the proposals now put before the House, and speaking from my experience as a Member since 1955, I see really little in the Bill that would be of the slightest assistance to me, nor can I see where it will be of any significant assistance to any of my constituents.
My reason for urging on the Minister a few moments ago the importance of having documents available, as they are in Sweden and in other countries, is that I feel that that is the only important provision in this Bill. When he sets out in Clause 8 that documents will be made available to the Parliamentary Commissioner, we have something which could be of very real assistance to Members of Parliament. But Clause 8 having said that documents will be available, we find in subsection (3) of Clause 11 that there are so very many ways in which they are not available.
The Minister says "No", but perhaps he will look at the wording. Subsection (3) refers to any document or information of which the disclosure… would be prejudicial to the safety of the State or otherwise contrary to the public interest …I do not believe that I have had any difficulty with the Minister with whom I have dealt both in Government and in Opposition that could not easily be covered by that wording.
§ The Financial Secretary to the Treasury (Mr. Niall MacDermot)
I am not sure 103 that the hon. Gentleman has understood the provisions of the subsection. This is not dealing with what documents would be made available to the Parliamentary Commissioner. As was said by my right hon. Friend, all documents, with the exception of Cabinet papers, will be available to the Commissioner. This subsection deals with the question of what documents the Parliamentary Commissioner can publish in his report, and it is there that the protection is necessary if he is to be given these completely free-ranging powers, including seeing most secret and confidential documents.
§ Mr. Irvine
I am much abliged to the hon. and learned Gentleman for clearing up that point for me, because I feel it essential that the Parliamentary Commissioner, at least, should be allowed to look at all the documents——
§ Mr. Irvine
If, in some other countries, everyone is allowed to look at the documents, it does not seem to me to be at all unreasonable. The Leader of the House wags his head, but in Sweden documents used in reaching a decision are all available, including the files and the minutes made by the Minister. I would therefore commend that point to the Leader of the House. In my submission, the main way in which back-bench Members could be helped would be the way in which documents might be made available to the Ombudsman, and I hope therefore that the Bill will be accepted.
§ 6.36 p.m.
§ Mr. Denis Coe (Middleton and Prestwich)
I am glad to give a general welcome to the Bill. The debate gives us a chance to discuss the wide-ranging ways in which we can deal with the redress of abuses in our administrative machinery—a chance that is all too rare. One sometimes gets the impression in this House either that we think that our administrative machinery is perfect—and we have had an expression of that this afternoon—or, alternatively, that we do not have sufficient Parliamentary time to debate the subject. I was also delighted to hear my right hon. Friend the Leader of the House advocating a course of action which, in effect, would mean a lessening of the power of the Executive. To be 104 fair to him, that is very much in character, as his past writings have shown that the procedure of Parliament should be adapted in this way.
There have been notable attempts in the past to tackle this general problem, and I suggest that in a sense, this present discussion is a continuation of the discussions which led to the formation of the Donoughmore Committee in 1932 and the Franks Committee in 1957. In each case we were attempting to come to terms with the increasing, and in my view desirable, activity of the State by evolving principles on which to base our administrative procedures, and the administrative machinery to make those procedures effective.
I can understand hon. Members opposite finding some difficulty in accepting this type of Measure. Their whole philosophy of politics, as the right hon. and learned Gentleman the Member for St. Marylebone (Mr. Hogg) said earlier, rebels against the idea of an interventionist State, yet I believe that in their hearts they know that a measure of State action is necessary. It therefore behoves us in this House so to evolve the procedural and grievance machinery of the State to produce the right approach. I suggest that the Opposition's negative approach to the State has meant that they have been unwilling to accept changes that would bring that about, and the question is, how can we get a more sensitive machinery in order to tackle this problem?
The Opposition—and particularly the right hon. and learned Member for St. Marylebone—have given a barely qualified approval to the Bill, and we on this side have a right to ask where they stand in regard to this Measure. They have given no real evidence that they are either for or against it. If they merely intend to allow the Bill to go through because they think that there is some sort of public opinion in favour of the creation of some form of Parliamentary Commissioner, they are running away from their responsibilities——
§ Mr. Charles Fletcher-Cooke (Darwen)
Would not the hon. Gentleman think it possible that, as in his own party, as expressed in speeches today, some hon. Members on this side are in favour of the Bill and some are against it?
§ Mr. Coe
We on this side have never been afraid of controversy within our party. The Opposition, as a party, must make up their mind and vote accordingly tonight, but I have not yet seen much evidence that they are prepared to do this.
I would like to look at the establishment of the Parliamentary Commissioner under three headings and to deal with them as the Danish Ombudsman dealt with them when he talked about his job. He said that the Ombudsman must have the confidence of Parliament, of the population and of the Administration. The mere fact that there is at least some measure of agreement among certain hon. Members opposite will, I suggest, make a start in showing the confidence which Parliament must have in the establishment of this new office.
Now that the Opposition have had their say about the early timing of the appointment of the first Parliamentary Commissioner in this country, I hope that they will join with hon. Members on this side and accept that the office is established and that they will give to the first recipient of the office every possible confidence in carrying out his job of building up a new Department.
The confidence of Parliament in the new office must extend to Members of Parliament themselves in using the office responsibly and willingly. I approve of the way in which complaints will be channelled through a back-bench Member of Parliament. I cannot accept the arguments which have been adduced—I admit from both sides—that this will somehow lessen the authority of a back-bench Member. I believe that his being able to decide whether to go through the channel of the Parliamentary Commissioner or to deal with a complaint through the normal channels already available to him will give the back-bench Member added authority which he does not at present possess.
When hon. Members in one breath suggest that we need reform of Parliament because the back-bench Member does not have enough power and in the next breath say that we do not want this innovation because it will lessen that power, I suggest that there is here an unrealistic conflict of opinion and that we are kidding ourselves if we think that we already have all that we need.
106 Parliament must also show confidence in the office by ensuring that the annual reports of the Commissioner are debated in this House. All too often, because of pressure of Parliamentary time, the Government of the day are able to put a report on one side. I would like a definite commitment that when the annual report of the Parliamentary Commissioner is submitted to Parliament, early time will be found for its discussion. Let us make no mistake about it: if we do not debate it, others will. The Press, television and other outside channels will debate it, thus taking away, in effect, an essential function of this House in discussing grievances. I would like to feel, therefore, that this will be done. I hope that Parliament will show its confidence in the office by a flexibility in extending the powers where we consider this to be necessary.
The second area in which confidence is necessary is among the population. On this the success or failure of the office will depend. I recall the comment made by the New Zealand Ombudsman that most people who have a grievance are not anxious to take legal remedies. What they want is an assurance that their suggested grievance is carefully considered, that they will be given a careful answer and a full explanation of why a certain decision has been taken and that in cases where there is a perfectly legitimate administrative reason, it will be carefully explained to them.
From the comparatively short time that I have been in public life, I am convinced that what people want more than anything else is a simple explanation of the reasons for administrative action and confidence that their sometimes unfounded fears or grievances will be sympathetically considered.
I suggest that in the Parliamentary Commissioner we have an identifiable office which is free of party politics and free of the Executive. In this sense, I believe that it will engender in the ordinary public a feeling of confidence. I believe that this growing confidence which the public will get in the Commissioner will in itself also strengthen the bonds between the Member of Parliament and his electorate as they come to recognise the Member of Parliament as a link man, someone who can take 107 this extra step of trying to deal with their grievances.
One point which was raised by the Bill and the White Paper is the provision that the Parliamentary Commissioner can allow people legal representation, but according to the White Paper legal aid will not be given. I appreciate that this is the position with existing tribunals, but I wonder whether the lack of legal aid in cases like this—I hope that they will be rare in any event—might produce two standards of advocacy before the Parliamentary Commissioner. I should like to be given an assurance about this.
I turn, thirdly, to the confidence of the Administration in the new office and I refer first to the place of the Civil Service. As in other countries, when an Ombudsman was first suggested there was an initial reaction by the Civil Service against the prospect. I think I am right in saying, however, that in each country where an Ombudsman operates the Civil Service is now quite happy with the situation. Civil servants are happy to believe that through an Ombudsman—in our case, a Parliamentary Commissioner—many of the unjust accusations which are made against them can be fully ventilated and the Civil Service vindicated. On top of this, I believe that the Civil Service will be helped by the way in which certain administrative regulations which may be clumsy can be corrected by the Parliamentary Commissioner drawing Parliament's attention to the fact.
One point which I find surprising is the way in which the Bill envisages full investigation by the Parliamentary Commissioner of the work of civil servants but no investigation of their conditions of service. I recognise that there is a problem of the Royal Prerogative in connection with civil servants, but I should have thought that something could have been done.
The position of the Parliamentary Commissioner in relation to Ministers has been suggested as a way of lessening Ministerial responsibility. I find some of the classical definitions of "Ministerial responsibility" far removed from reality. The establishment of a Parliamentary Commissioner who is responsible to Parliament, as in the case of the Comptroller and Auditor General, should strengthen Ministerial responsibility. I would go so 108 far as to say that in some respects it may reinstate Ministerial responsibility.
I was happy to hear my right hon. Friend the Lord President of the Council say this afternoon that the use of the Ministerial veto will be extremely limited. I am sure that this will be welcomed by the House. I should like to be convinced, as I am not at the moment, that it is right to exclude regional hospital boards, management committees and the like. To draw again on the experience of New Zealand a very large number of cases dealt with by the Ombudsman in that country relate to health matters. Independent investigation of complaints in this sector should help to bring together the general public and these public boards.
Looking finally at the general implications of the Bill, one source of worry is, no doubt, the volume of complaints which may arise. Other countries where the office has been established are much smaller than ours and, therefore, the position of one man is perhaps, more easily identifiable. I consider that the channelling of complaints through Members of Parliament will lessen the number of complaints, but we can judge this only in the light of experience. Nevertheless, I feel that the Government are generally right to limit the scope of the office except where I indicated otherwise.
Hon. Members have said that the Parliamentary Commissioner will not have jurisdiction in certain sectors. Yet it is worth noting that in New Zealand, it is in fields such as social security, pensions, Customs and Excise and Inland Revenue that the Ombudsman has received most complaints. And these will be covered by the Parliamentary Commissioner. I recognise the particular difficulty of local authorities and I am sure that something will have to be done. Although I think that we will have to find a solution in respect of local authorities, I am equally certain that the answer is not a great number of local Ombudsmen appointed by leading local authorities. Here I must take issue with my right hon. Friend the Lord President. I also hope that we shall be able to do something about the police, and the nationalised industries as well, although in the latter case machinery is already available, but is not used properly. It would be wrong to assume that by appointing a Parliamentary Commissioner we have finally solved all the problems of 109 maladministration. As the Whyatt Committee pointed out, perhaps new tribunals are required. Certainly, unfairness as opposed to maladministration exists under a number of existing Acts. Again, if we are to have full public confidence in the inquiries and tribunals system, then I think that improvement is needed here. Personally, I would like to see the office of the Lord Chancellor taken right out of politics, and I think that the Franks Committee was right when it argued that inspectors., however impartially they do their job for the Ministry of Housing and Local Government, would be seen better to be doing their job impartially if they were under the Department of the Lord Chancellor.
These are points to consider as we continue to adapt the machinery of Government to be efficient, responsible, and, above all, sensitive to any injustice which may be inflicted upon those whom it is intended to help. I would argue that the establishment of the Parliamentary Commissioner is a move in this direction, and therefore I welcome this Bill.
I should like to end by recalling what the Danish Ombudsman said recently about his office:The fact that the Ombudsman exists and more and more people are aware that he exists in itself makes it less likely that injustice will occur.Here we have the element of sensitivity which modern government requires. It amounts, I believe, on the part of the people to ready acceptance of the benefits of State action on the understanding that such actions will be just and that grievances will be readily investigated and corrected. In this context the establishment of a Parliamentary Commissioner is a most valuable addition to our machinery of Government.
§ 6.52 p.m.
§ Miss J. M. Quennell (Petersfield)
I should like to begin by apologising to you, Mr. Speaker, and to the right hon. Gentleman the Leader of the House for being some minutes late and missing the first part of his speech. In July I was invited to give a lecture on Parliamentary procedure some 70 miles away, and, unfortunately, not being a prophet or a clairvoyant, I thought that the House would be in recess and I accepted—and that has come home to me with some 110 vengeance today, because it is a matter of great regret to me that I missed the first 20 minutes of the right hon. Gentleman's speech, and because it will become boring to hon. Members who listened to him if I refer to matters which may have been dealt with already in the right hon. Gentleman's speech.
Like my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth), I, too, have been culling my correspondence files with some glee during the Recess. I assumed, as he did—and perhaps it would be possible for whoever winds up the debate to clear up this point—that this Bill would have legal effect to some year in retrospect. Therefore, I went through my correspondence files for 1965. I then looked very closely at the Bill, and I was very disappointed, because it seemed to me that very few will come within its scope.
Under the Bill there is a sum of £200,000 which, it is thought, will be adequate for the office of the Parliamentary Commissioner. My hon. Friend has had approximately the same number of letters that year as, I suppose, most other hon. Members, and I certainly have. It seems to me, on the evidence of my own correspondence files, since, as my hon. Friend said, the only letters about the Parliamentary Commissioner were letters of grievance, that there will be something like 250,000 grievances which Members will tend to forward to the Parliamentary Commissioner, and I very much doubt whether that sum of money will be adequate.
On analysing last year's correspondence I find that the greatest bulk of it was of letters expressing opinions on legislation before the House, for or against it, or just expressing political opinions one way or another. Excluding those, I found that the headings under which the correspondence fell came out as follows: planning and rates were the next largest items in last year's correspondence; followed closely by finance and tax matters, and housing and rents; next pensions and National Insurance cases; then agriculture; telephone and postal services; Home Office and home affairs; local affairs and services; statutory boards; education; health and hospitals; Ministry of Defence and Service men and matters; foreign and Commonwealth matters and complaints against the B.B.C. came at the bottom.
111 Of that list it seemed to me that two headings would fall within the purview of the Parliamentary Commissioner, namely, finance and tax matters and Home Office and home affairs. Therefore, I went through those headings rather carefully only this morning.
In every case I have taken up with the appropriate Department, one has had a sensible and reasonable and comprehensible letter of explanation; if not, one has been lucky enough to secure a satisfactory decision, sometimes a reversal of an original decision by an official. It is appropriate to say something about the level of our administration. On the whole, I think it is reasonable to say that, where Members can make out a reasonable case to be investigated, I do not think we do too badly by our constituents, and it is not a bad thing to say so in this debate.
One has, however, to face the fact that the public have a very different image of what it is the Parliamentary Commissioner will be able to do. Only yesterday I had a letter from a gentleman abominating something and demanding to know how he could approach what he called the Ombudsman. Whether or not the Leader of the House objects to the name, that is the name by which the Parliamentary Commissioner has become known and is called already. That correspondent demanded to know how he could approach the Ombudsman directly to complain bitterly about the services available in restaurant cars on British Railways. I had to write back and say that I was very sorry but he could not do any such thing under the Bill as it now stands.
I fear that a phrase in the Labour Party's manifesto of 1964 may have something to do with this, the phrase about humanising our administration. There are so many of what are popularly regarded as matters for the Ombudsman, but which are matters taken wholly out of the Bill, and it will take a fairly long time to make the public understand what in fact the Parliamentary Commissioner can and cannot do. It needs to be said again that he cannot concern himself with the police.
I would mention again the speech of my hon. Friend the Member for Hendon, 112 South, who pointed out that the Metropolitan Police come under the Home Office, as they do, as distinct from other police forces in the country, and this is a matter which needs some clarification. The Parliamentary Commissioner cannot concern himself with the courts; he cannot concern himself with State boards; he cannot concern himself with local authorities; nor with matters dealt with or covered by the tribunals or judicial bodies. It needs to be said and emphasised over and over again that he has no executive powers. Once he has made his report, that will be the end of the matter as far as he is concerned. He is not, in satisfaction of a complaint, going to hit some official over the head with some specially devised weapon. This is a point which needs to be made quite clear.
There are one or two other things which strike me as being of some interest and which I would ask the hon. and learned Gentleman to explain, if he is going to wind up the debate. Two versions of the Bill have been published, one last February and the other last July. They are substantially alike, but not entirely. In the second version, which we have before us, the Parliamentary Commissioner is clearly seen to be a Crown appointment, which he was not in the first version. This strikes me as being a little curious, and it raises a possible anomaly in that an official who is a Crown appointee will be asked to investigate Crown Departments. I therefore think that perhaps the first version of the Bill was the better.
In various speeches today hon. Members have referred to the Scandinavian Ombudsmen, each of whom has been a jurist of some eminence although not necessarily a practising lawyer. I think that in the case of Denmark he is a very eminent law professor, but our Parliamentary Commissioner-designate is a former civil servant. There could be an anomaly in that a Crown appointee was investigating a Crown Department and having to investigate the actions of former colleagues as a result of complaints received. However, it may well be a very good thing to appoint a former civil servant to the post on the principle that the best gamekeeper was formerly a poacher. Poachers turned gamekeeper will know all the tricks of the trade.
Certain other anomalies are drawn to the attention of the Government in the 113 Annual Report of the Council on Tribunals, 1965. Paragraph 13 refers to the difficulty of drawing a clear dividing line between the Commissioner's sphere of action and that of the Council. It says:The Commissioner will report to Parliament, whereas the Council reports to the Lord Chancellor and the Secretary of State for Scotland; and while any member of the public who wishes to make a complaint to the Council, can make this directly to the Council, it is proposed that a complaint to the Commissioner shall be only at the instance of a member of the House of Commons.There are differing practices between the two offices. It seems to me that we could develop the Parliamentary Commissioner's office and the Council into a more uniform practice so that they could become a more important weapon for the correction of abuses.
My final disappointment with the Bill concerns the end of Schedule 3. In 1965 I had some satisfaction in two hard cases lingering over from 1964 in which I was convinced that justice had not been done. One concerned a former colonial civil servant whose health broke down and who had been unable to get any compensation or pension. The second related to a woman whose husband died in the service of his country. She had been granted a pension as a war widow, but was denied the exemption from probate normally granted to the widows of Servicemen who the in the service of their country.
When I look at paragraph 10(b) of Schedule 3 I fear that hard cases of this type will be excluded from the operations and interests of the Parliamentary Commissioner, for matters which are not subject to investigation include service in any office or employment under the Crown, or any authority listed in Schedule II, which covers practically all the Departments of State. Paragraph 10(c) of Schedule 3 will operate in their cases.
When people come into conflict and feel that they have a grievance with the central Government it is because they fall under one or two of these headings. There are very few occasions in my experience as a Member of Parliament when grievances arise in any other way. Therefore, while one looks at the Bill hopefully one also looks at it rather as I looked upon another matter which came before us just before the House rose and which I welcomed with "modified rapture". I hope that we can do a great deal to improve this 114 Bill in Committee, but at present my views on it are of very modified rapture.
§ 7.07 p.m.
§ Mrs. Lena Jeger (Holborn and St. Pancras, South)
The debate has shown how the relationship of the individual citizen to the State is one of the oldest and most intractable problems in our democracy. It has become infinitely more urgent because of the growing impact of Government on the individual in our society. I do not complain of this, but nothing is more deflating to the liveliness of democracy than for the individual citizen to feel a sense of helplessness when he confronts authority.
I welcome the Bill because I think that it will give a new aspect to this very old problem. It will provide some additional way of bridging the gap, which many people feel is widening dangerously at present and has been for many years. Having said that, and knowing that my right hon. Friend the Leader of the House needs no praise from me, I wish to save the time of the House by concentrating not on the advantages of the Bill, which I shall support, but on pointing out one or two difficulties and omissions, because I very much hope that during the Committee stage there will be some very radical alterations to it if it is to be as effective as I believe is necessary.
First, I shall deal briefly with the question of the police. The relations between the police and public represent a most sensitive area. I maintain a great admiration for the proposal by three members of the Royal Commission on the Police, which reported in 1962, who suggested that a Commissioner of Rights should be appointed. They stated:If the Government were at any time to decide to institute an Ombudsman for the whole field of public administration then he could absorb the police complaints as well.They suggested that pending such an appointment we might well consider having a Commissioner of Rights who would examine complaints from the public, M.P.s and others on police matters. He would have the right to call for documents, visit premises, interview individuals, and publish his findings as a report. A great deal of thought has been given to the question of complaints against the police, and I raise it with some emphasis today, because I think that it 115 would be in the greatest interest of the police forces if the police were not the final arbiters in cases concerning their own conduct or the conduct of other members of the force at any level.
I found recently when I was in Sweden that, far from civil servants or the police objecting to the kind of machinery which has been described as existing in that country, they welcomed the fact that so many complaints could be so freely brought as a kind of protection to themselves. The fact that in Sweden on the civil side 90 per cent. of the complaints proved to be unfounded was reckoned by public servants as a great advantage to themselves. There was no sense of injustice about this machinery of investigation.
I am puzzled about the police, because I find that the Home Office is in the list of Departments which can be subject to investigation, but according to the White Paper there is a specific exclusion for the exercise of powers in relation to investigating crime. I ask my right hon. Friend, does this mean that the conduct of police in matters not affecting investigation of crime come within the orbit of the Parliamentary Commissioner if they happen to concern the Metropolitan Police, because they come under the Home Office? Does it mean that police outside the Metropolitan force are entirely excluded in all aspects of their conduct from this machinery? If so, I think it is all the more important that at some other time, and perhaps in some other context, the whole question of the relationship of the police and the public should be given further consideration.
Of course, the problem of vexatious complaints is very persistent in this field, but in my view it is better to examine 100 malicious complaints than to refuse one justified appeal. I agree with Burke that "ever it is a general popular error to imagine the loudest complainants of the public to be most anxious for its welfare "but often the quieter the voices the more attentive authority needs to be.
I feel very perturbed on the question of local authorities. We all know of this very wide area of complaint which concerns relations between the individual citizen and the local authority. It seemed to me that my right hon. Friend the Leader of the House suggested that 116 it might be a good idea for local councils themselves to consider setting up a kind of local commissioner. I know at least one large local authority which has been discussing such a proposal. I ask my right hon. Friend, if local authorities wanted to do this, would they not need statutory powers? Would they not need protection from the district auditor for expenditure on such matters? If a local council itself made such an appointment, what about the powers of discovery of documents which may not all be in the town hall?
§ Mr. Eric Lubbock (Orpington)
Perhaps I can help the hon. Lady. Croydon already has an officer called a "complaints officer". All he does is to answer general inquiries from the public relating to council matters. I do not think it necessary to have statutory authority to make such an appointment; he is an ordinary member of the council staff who helps members of the public.
§ Mrs. Jeger
I agree that there is an extension of the public relations officer idea, but I was thinking of something different, an extension of the Parliamentary Commissioner idea, a local commissioner who would have power to send for papers, power of investigation and report. I cannot see how such appointments could be made without further investigation. I submit that in Committee on this Bill would be the right time to consider whether this proposal is desirable or not.
I am not wholly "sold" on the idea of every local authority in the country making such an appointment. Maybe we should think in terms of some regional form of appointment, but I am absolutely convinced that the concept the public has that at last Parliament is doing something to give them justice in the matter of raising grievances will meet with disappointment if such a large area continues to be excluded. Most work of local authorities is carried out in the form of statutory duties laid upon them by this House. I can see all sorts of difficulties in finding the dividing line. I can think of at least two.
I think of parents who write complaining that the Minister of Education is not fulfilling his duty under the legislation to give a free choice of schools because there is only a church school in the 117 village and those concerned are not church people. Presumably the Parliamentary Commissioner might be asked to look at such a complaint. It may be that the local authority in its building programme and development programme or in its failure to provide a school bus is the real point of failure in the development of the rights of parents, in that case to exercise rights granted under the legislation.
I will not weary the House because everyone must know of examples, but one of the most bitter letters I have ever had cams to me from a man who is an invalid and had been kept waiting for 18 months for an invalid car to which it was agreed he was entitled because of the nature of his disability. I put this matter to the Minister of Health and, with his customary courtesy, my right hon. Friend looked into it very closely. We found that the car had not been delivered because the local authority had some responsibility in the matter and had not allowed a shed to be provided although it was essential before the man could take delivery of the invalid car.
There are all sorts of difficulties of this kind. I am afraid that if we merely hope that local authorities will provide a kind of sophisticated version of the complaints officer the most slothful local authorities will avoid doing anything although they may be the very ones where inquiries should be made most strictly.
§ Miss Quennell
The hon. Lady has been referring to local authorities and their appointment of complaints officers. Does she not agree that probably Croydon and the larger boroughs would find it easier to discover someone with the necessary qualifications than for minor local authorities, in whose areas injustices and grievances arise just as much, which would find extreme difficulty in discovering anyone suitable for the job?
§ Mrs. Jeger
Exactly. That is why I said that we might have to look at this matter on a regional basis in many cases: but let us agree to look at it. I think the Committee stage of this Bill is the right place to examine the whole question.
I very much agree with an hon. Friend who referred to hospital boards. I find that in the relationship of the public with hospitals and clinics and the whole apparatus of medicine there is the greatest 118 difficulty. Often this is because people are confronted by these authorities at a time of sickness, sometimes of death, and in any case a time of stress and anxiety. It may be that they need more than normal help and understanding of what has happened and in getting the information to which they feel entitled. This is all mixed up with various forms of medical secrecy which give to many hospitals an authoritarianism which scarcely survives in any other institutions in our country. We see that the Ministry of Health is on the accessible list, but we are given to understand that the regional boards which carry out certain functions on the Minister's behalf and local authorities which carry out responsibilities for clinics and welfare services are apparently excluded from this form of examination.
As the Home Office is on the list of Departments admitted, what about the various institutions which local authorities run through their children's departments? Shall not we be able to ask the Parliamentary Commissioner to look at some appalling maladministration in a children's home merely because it is said to be the responsibility of the local authority? Could it not be argued that this is a Home Office responsibility, because it is under the authority of the Secretary of State for the Home Department that many of these institutions are run?
The whole question of children in care is another matter about which I am deeply concerned, because again this seems to fall into the category of the local authority. Perhaps in Committee we should extend the Bill to cover cases where local authorities are carrying out statutory duties and where there has been some failure.
Housing is another obvious problem. Where do we draw the line between the responsibility of the Minister and that of local authorities for housing, particularly on planning?
Then there is the whole exclusion of matters of law referred to in the White Paper. Without going into a great deal of detail, I believe there is room there for some revision. I have also to raise the question of officials who are appointed by Ministers but who appear to have independent status that would exclude them from this Bill. I make no apology for mentioning that I have tried elsewhere to call attention to the cases 119 of two widows. One widow was granted a certificate of presumption of death by a Scottish court, and she took the certificate to the Inland Revenue. It paid out her husband's post-war credits, accepting the certificate of presumption of death as sufficient evidence of her widowhood. A commercial insurance company paid out the man's life assurance. The widow took the same certificate to the Ministry of Pensions and National Insurance, as it then was, but it did not want to know. She was informed that, in the view of the Ministry, the certificate of presumption of death did not constitute her right to be regarded as a widow within the legislation
It might be argued that the answer here was to take the matter up with the Minister; but the Minister would have to say that the Insurance Commissioner to whom the woman appealed was an independent person and the Minister would have to tell the Member of Parliament that there was nothing to be done about the insurance officer's decision. That case occurred in Glasgow.
Another woman obtained an identical certificate from the court in Edinburgh. Who would be so bold as to suggest that there was any difference in the standard of justice between the courts in Glasgow and those in Edinburgh? I would not dare to do so. This was under the same law—the Presumption of Life Limitation (Scotland) Act, 1891. This widow took her certificate to her local Ministry of Pensions and National Insurance office, and it paid her the pension.
Various people have written to me and said, "Is not this a lovely case for the Ombudsman?" People still use that word, so ignorant are they of the limitations of our Parliamentary Commissioner. I am left with this question unanswered: are officials who are appointed by Ministers but whose independence is written into the terms of their appointment to be independent also of any examination by the Parliamentary Commissioner? My right hon. Friends might wish to say that they should be, but I should like to have some explanation of this and I hope that at some time someone will tell me how I can explain to the widow in Glasgow why she does not get a pension, while the Edinburgh widow, who 120 has an identical piece of paper in her hand, does get one.
I am a little disappointed about the question of the Armed Forces. My right hon. Friend suggested that this was a completely separate question, and in Sweden there is a separate individual who deals with the Armed Forces. The office in Sweden was set up in 1915 because it was felt that once conscription was brought in soldiers were entitled to the fullest rights of citizenship. I know that it is difficult always to combine the rights of citizenship with the duties of the Armed Forces, but it is our duty to try. The closer men and women in uniform feel they are within the orbit of the citizen's rights, the better for any forces in any country. If the answer is that, as elsewhere, a second commissioner would need to be appointed, I am not worried about that. I should have thought that the Committee stage is the place where an Amendment in these terms could be tabled, and I would hope that it would at least be given consideration and would receive serious thought.
§ Mr. MacDermot
Is my hon. Friend asking about relations between the Armed Forces and the civilian public, or is it some—and, if so, what—matter within the administration of the Armed Forces which she wants brought within the scope of the Parliamentary Commission?
§ Mrs. Jeger
In Sweden the latter is the case. I was delighted to find from some of the reports of the Military Ombudsman for a recent year that he had dealt with a captain who had been rude to a sergeant and with a sergeant who had been abusive to a lance-corporal. It might well be felt that we have within our existing arrangements methods for dealing with such cases, and I do not want to appear trivial, but I think we should examine the possibility of giving Service men and women the same rights as those enjoyed by citizens out of uniform.
§ Mr. Lubbock
Could I give the hon. Lady a much more important example of the sort of job which could be taken up by a military ombudsman? He could inquire into an unjust refusal of release of a Service man, as in the case of May-hew, a young man serving in the Navy, who was refused release to take up the offer of a place at a university.
§ Mrs. Jeger
It was only for the sake of brevity that I did not go into some of the more grievous examples.
It has been said that we do not want the Parliamentary Commissioner to be flooded with work and that perhaps we should begin with these limitations. However, it is a rather dangerous idea to start a new scheme, which has been given a very warm welcome, in one direction if it is intended to do something different later. If a beech nut is planted, an oak tree does not grow. Although we may not get the oak tree, I wish that we were at any rate planting an acorn.
I hope very much that in Committee the spokesman for the Government will feel able to take cognisance of the anxieties of Members over these various matters and ensure that there is an expansion of the powers so as to make this office into what many people are looking forward to having, namely, that of a Parliamentary Commissioner who will be the friend of the individual and who will be seen and understood to be such.
§ 7.29 p.m.
§ Mr. Gwynfor Evans (Carmarthen)
I wish to draw attention briefly to two matters only. The first concerns the administration of the Bill. The second concerns its contents. The matter of administration concerns Wales. I wonder whether it would be possible for Wales to be considered as an entity for the administration of the Bill. It is a special case. There are special circumstances. It may be said that the country is too small, but, after all, it compares in size with the Scandinavian countries where officers of this kind are doing very fine work. If there were an officer in charge of an area the size of Wales, he would be able to take into account the kind of complaints to which the last hon. Member referred.
§ Mr. John Rankin (Glasgow, Govan)
Is the hon. Gentleman advocating a Parliamentary Commissioner for Wales? I want to advocate one for Scotland.
§ Mr. Evans
I would be glad to see the same thing done for Scotland. In an area of that size, it would be possible to have local government complaints taken into consideration. The area is not too big. In relation to Wales, the Commissioner should have special knowledge of the Welsh background and even of the 122 Welsh language in order to do justice to many cases which might come before him.
The other matter to which I should like to refer is connected with the content of the Measure, and one Clause which vitally affects its purpose. As the Bill stands, the complainant must himself decide whether he has an action in law. The burden is put on his shoulders, or perhaps on the shoulders of his Member of Parliament. The complainant must first find out, as I understand the Measure, whether he has a remedy by way of proceedings in a court of law. To ascertain that, he may have to seek a declaration by the High Court or he may be obliged to bring his complaint before the Commissioner, only to find that his remedy lies in the law courts. In this way he may incur expense in one place, to be told that his complaint should have been brought before another jurisdiction.
This is the kind of situation which used to exist as between Chancery and common law. There is no guidance at all as to matters which may be both legal as defined by this Bill and therefore competent for the courts, and non-legal and therefore matters properly assigned to the Commissioner. Both legal and non-legal matters may be very closely linked together. What is the position then? Is the Commissioner excluded from considering the matter because of its legal content, or should there be two sets of proceedings and both of them perhaps costly for the complainant?
What if there is a discrepancy between the findings of the Commissioner and the findings of the court, each working in his or its own particular sphere? I feel that the Bill as it is throws a very heavy burden of proof upon the complainant. He has to prove that it is reasonable to bring the matter before the Commissioner. The standard of proof demanded of him is very high. It is the kind of standard demanded in the criminal courts in criminal cases. This could prevent the hearing of many meritorious complaints and it could deter aggrieved persons. I believe that the Bill is an excellent——
§ Mr. Crossman
May I repeat what I said in my speech? We are fully aware of the problem that the hon. Member has raised and we made special arrangements so that if all the courts were to deter 123 somebody from putting his case, the Commissioner would feel entitled to hear the case, even though it had been covered in the courts. I have said that, and I hope the hon. Member will do me the honour of believing that I meant what I said.
§ Mr. Evans
I am glad to be assured that that is not so, but that is the fear that many of my legal friends have, and I have been asked to express it here.
I support the Bill warmly. I think it has an excellent purpose. I think it can be a means whereby Parliament and the public can more effectively control the Executive. I do not share the fears of hon. Members on this side of the House in that matter, but we must ensure that this purpose is achieved fully.
§ 7.35 p.m.
§ Mr. Sydney Silverman (Nelson and Colne)
I take it that the question before the House today is purely one of principle. We are not concerned with details. We are not concerned with discussions, for no doubt we shall have many of them when we reach the Committee stage. What the House is being asked to decide today is whether in principle it is in favour of this experiment being made or not. On that question I should like to express my bitter disappointment at the attitude of the official Opposition.
The right hon. and learned Member for St. Marylebone (Mr. Hogg), who opened for the Opposition, told us that he was anxious not to be guilty of a merely negative opposition. What he did was much worse than that. He damned with faint praise, assented with civil leer and, without sneering, taught the rest to sneer. All his supporters during the whole of the afternoon have been sneering away to their heart's content. What we are doing here is making a hesitant, tentative and perhaps not quite adequate approach towards the greatest constitutional amendment that this House of Commons has ever approached since the days when universal suffrage became applicable to our electoral system. It will be remembered that that was a phased approach, a very 124 gradual approach, taking something like 120 or 130 years. I hope the phasing of this amendment to the constitution will not take as long as that. I hope we shall go along much more rapidly.
I invite the House today to give a warm and generous welcome to the principle which the Bill contains, and I wish the Government every success in proceeding along those lines until we get an effective Parliamentary Commissioner. I have my own criticisms of the Bill and, in view of what I have said already, I do not propose to take much time over them; but I think the terms of reference are too limited. I think the powers are inadequate and some day, as we clear away the undergrowth, as we become accustomed to the practice of the kind of procedure that we are contemplating, I should like us to encourage ourselves to become a little bolder than we have so far been. However, I concede that in an amendment of this kind, a fundamental constitutional amendment, we have to go carefully and gradually. I only hope that we shall not be too careful or too gradual.
What is the constitutional amendment that we are approaching? We are endeavouring, I should have thought, to make the individual House of Commons back-bench Member's defence of his constituents against the Executive more effective than it has ever been. I speak, if I may say so, as a kind of professional back-bench Member. I have absolutely no doubt—and I have been here a year or two now—that if the powers contained in this Bill had been operative 20 years ago, I would have been a great deal more successful than I have ever been in defending my constituents under the old system.
We shall no longer be dependent on an evasive reply delivered nonchalently by a Minister from a paper written for him in his office. We shall no longer be prevented from knowing exactly what influenced the Minister in making the decision complained of. We shall no longer be deprived of access to at any rate some of the documentation on which his case is based. We shall no longer be dependent, if we are dissatisfied, on a half-hour Adjournment debate, taking place under impossible circumstances. Nor shall we be dependent, if ever a case is tested on a Division of the House, 125 on a Division conducted on purely party political considerations.
Surely all this is a great improvement. Surely we should welcome it. Certainly keep one's doubts and hesitations; certainly do what one can do to make such improvements as are possible or as the Government will accept or as can be forced upon the Government if they refuse to accept. But what I am pleading for today is that we should not be half-hearted and timorous or doubtful about the principle.
I ask that we should not say that, because we cannot do this or that or the other for the moment, we are content to be a wet blanket on what might turn out to be the most effective constitutional amendment of our time. It is in that spirit that the House should approach the Bill. I reserve my rights, as does every hon. Member, to put forward Amendments in Committee but I have no doubt whatever—and this is what disappoints me in the attitude of the Opposition—that the House should give if not an enthusiastic at least a very warm welcome to the Bill.
§ 7.42 p.m.
§ Mr. Jeremy Thorpe (Devon, North)
I apologise for not being present during the whole of the debate. I was sitting in a Select Committee upstairs, like the right hon. and learned Member for St. Marylebone (Mr. Hogg). However, I have a note of what was said in my absence. Obviously, one welcomes any Measure which will extend the citizen's right to obtain redress against the executive. That is a far more important constitutional gain than increasing the effectiveness of a Member of Parliament, although that may well be a useful by-product of this reform.
We should ask ourselves, however, why this has come about. It has come about for two reasons. The first, obviously, is the extent of Government control over the affairs of the citizen. This has tremendously increased during the last 60 years, to a very large extent with general support. But it has obviously involved administrative decisions which have been taken. There is, of course, a point at which there are philosophic differences as to whether particular powers for particular 126 purposes are too great or not great enough.
The second reason is that the job of the Member of Parliament has changed dramatically and I am not certain that this is necessarily a good thing. We should examine the job of the modern M.P. because it is the increase and the nature of the work he has to do which have partly made this Measure necessary. Earl Attlee, in a candid moment from the security of the peerage, said that Members of Parliament today were becoming more and more like relieving officers.
§ Mr. Thorpe
Perhaps that is financially a more desirable alternative. I am grateful to the Lord President and accept his correction.
We are getting more and more of what I would call the "dustbin" cases—the sort of case where an M.P. is asked to see that a dustbin collection is made twice a week instead of once. Of course that is really nothing to do with us. It is purely a local government affair. There are also matters relating to planning. To a certain extent, some are properly preferable to the Minister of Housing and Local Government but many others are quasi-judicial in nature or may be pending as the subject of appeal or as the awaited result of an appeal following an inquiry.
Perhaps the most dramatic case of abuse of an M.P.—and I hope that I do not embarrass my hon. Friend the Member for Orpington (Mr. Lubbock) for mentioning it—occurred after a certain by-election which had some political significance and in which wide issues were involved. His first telephone call from a constituent was at 2 a.m. The lady said that she wanted her M.P. at once because a dead badger had been thrown into her backyard and she wanted him to see that it was removed. My hon. Friend, with his usual efficiency, got on to the local health authority, and such was his influence that the badger was speedily removed. Of course, with proper regard for the rights of local authorities, my hon. Friend was not prepared personally to intervene, because that would have been flouting their authority.
I think that there will be a great temptation to pass on what I might call the "dustbin" cases to the Parliamentary 127 Commissioner, and this must be strenuously avoided. I hope we shall remember that the object of having the Commissioner may well be to enable certain research and investigations to be carried out for Members of Parliament who at certain times have no facilities and sometimes have not the necessary training.
I recall a case relating to a firm in my constituency. It felt that it was entitled to a certain concession in regard to repayment of Excise duty on a certain form of oil. Tied up with that was a complicated claim relating to the licensing of its vehicles. It happened that, at the time, I was able to plough through about 110 pages of documents and the matter interested me from the lawyer's point of view. But, clearly, this should not be the job of a Member of Parliament. It is not necessarily a job for a solicitor, but it could well be a case for some legal assistance being given to an hon. Member by the Commissioner. There are often matters of great complexity which might contain an issue of individual liberty where a gross injustice may have been done and should be righted.
I hope that we shall not regard this—the Lord President does not, judging by what he said—as an excuse for saying that hon. Members need not be made more efficient by the creation of Select Committees which will probe the executive and possibly the provision of research assistants. The establishment of a Parliamentary Commissioner is in no sense a substitution for that. But it is important that we should get the right procedure under this Bill. I take the point made by the hon. Member for Nelson and Colne (Mr. Sydney Silverman) but it in no way indicates lack of enthusiasm if one supports the suggestion put forward by the right hon. and learned Member for Chertsey (Sir L. Heald) for the appointment of a high-powered committee, possibly a Select Committee, as the best way of considering the Bill when it receives its Second Reading—I hope without a Division.
§ Mr. Sydney Silverman
I did not want to prolong my speech with detail, so I hope that the hon. Member for Devon, North (Mr. Thorpe) will allow me to say that I would hate to have some cushion of a Select Committee interposed between the back bencher doing his job by his 128 constituents and the Parliamentary Commissioner.
§ Mr. Thorpe
For once the hon. Member's lucidity failed him. Two suggestions have been made about Select Committees in connection with this matter. The one put by the right hon. and learned Member for Chertsey is that a Select Committee should deal with the Committee stage of the Bill and that it might well be able to receive a certain amount of evidence of experience and be able to probe reasons for exceptions or exclusions. In this way, at the conclusion of the Committee stage, the House would have the widest possible information.
The other suggestion was by the right hon. Member for St. Marylebone—that in order to obviate the difficulty of an M.P. being disinclined to refer a matter to the Commissioner, the first application should be made to a Select Committee, which would then have to be satisfied that the ordinary Parliamentary machinery had been explored.
There will be a lot of disappointments, and what we must also make quite plain is the people who cannot be helped. There are a lot of people, some of them in my own constituency, who believe that as soon as we have a Parliamentary Commissioner or Ombudsman, their individual problems at last will be solved. It is only right and fair to them and to the Commissioner that we should make plain that those who have had a lack of success in the courts cannot be helped. It may be that they were out of time, possibly they were not able to get legal aid, possibly their counsel were bad or their solicitors failed to turn up, possibly they were not able to get their cases adequately presented and came away feeling that the judge was biased or that the magistrate did not listen to their pleas in mitigation. People get a sense of grievance about such things, and it must be made absolutely clear that however much they may feel they have been wrongly dealt with by the courts, this is not an appointment which can assist them.
I always think that one of the most tragic features about constituency cases is the person who has suffered a rebuff at an early stage and thereafter has nursed a grievance against the world. I had one such case of an insurance battle where, for five years, a man had been fighting his case. It was possible to assist him 129 through an ex gratia payment by the Minister of Pensions and National Insurance, and his claim was settled. However, he was still miserable, because he had conditioned himself to that. I do not know whether he was more miserable because he had succeeded and it was no longer a battle to fight than if he had been left as he was.
It is important that local government has been excluded. The number of local government as opposed to national government matters which are referred to me are enormous. By and large, the ability of a Member of Parliament to be able to refer a case to a Minister, with the knowledge that civil servants will go through the case with a tooth-comb and the Minister will write back under his own signature knowing that the matter may be raised in the House itself is an efficiently refined tool for airing the rights of constituents at Whitehall level.
When one comes to local government matters like compulsory purchase orders, procedures for road widening schemes which will take part of someone's front garden, the zoning of children for particular schools and so on, those are matters about which people feel strongly. If we leave those to local government, we are not likely to get very much reform. To its great credit, Bristol Corporation has set up its own Ombudsman, but it is unlikely that local government generally will do it in 25 years unless there is impetus from this House.
If there were a Select Committee set up, I would like to know more about the possible creation of regional commissioners or Ombudsman to deal with parliamentary and local government complaints. After all, there are many hospital cases where perhaps the descendants of someone who has died in a hospital may not feel able to bring an action for negligence and may not want to but who may want reassuring on particular aspects of the case. If such a case is referred to the Minister of Health, very often there will be an inquiry and then a meeting. By and large, the hospitals are very good in trying to reassure those who have lost relatives as to the medical treatment and everything else that was done for the deceased person. But there are cases involving hospital boards, gas, electricity and water boards where it is just as vital for the citizen to have some 130 form of remedy and some way of getting a complaint scientifically investigated such as that which exists between the House of Commons and various Ministries.
I want now to make three further points. The first is that there are certain matters excluded from the Bill which were initially in the White Paper. Subject to correction, among the exclusions are the Chancellor of the Exchequer, the Duchy of Lancaster, the Lord Privy Seal, the Ordnance Survey, the Paymaster-General, the sub-departments of the Scottish Office and the office of the Minister without Portfolio.
§ Mr. Thorpe
If that is not so, I stand corrected. I may be wrong about one or more of them, but I think that those are at least some of the exclusions which were within the purview of the White Paper.
Local government matters are among the exclusions which I have mentioned. In addition, I should have thought that the security services were a very serious exclusion. I should have thought that the security procedures ought to be available for inspection by the Parliamentary Commissioner. One can think of certain cases where it would be very helpful if one could refer a matter to him, even if a Minister were subsequently to plead the protection of Clause 11(3).
Another matter which I should like to mention is this. What is the position about a case where a citizen's claim has been referred to an administrative tribunal? I am thinking particularly of an agricultural tribunal, because I was concerned in the case of a small egg packing station in Cornwall where the then Minister of Agriculture was persuaded to refer the case to a committee of investigation set up under the Agricultural Marketing Acts. It took us two years to get that case on its feet, for the simple reason that we had to raise funds not only to finance the hearing of the case but also to stave off some of the pressing debts of that firm. The firm has now won in the sense that the committee has held that the Egg Marketing Board acted against the public interest and exercised its discretion wrongly, so much so that it very nearly bankrupted the little firm which I 131 represented. However, not one penny piece has that firm been able to recover, and it is still facd with meeting large bills. All that the Minister has done so far is to ask the Egg Board for its opinion of the report.
In a case such as that, would the Minister of Agriculture have the right to refer the findings of the committee to the Parliamentary Commissioner and say to him, after he has decided what he is going to do, "Do you feel that this is a case where compensation should be paid? Is this a case where there should be some form of an ex gratia payment? What would you, as Law Commissioner, think the fair and proper thing to do? "It may be said that that is asking him to move into the field of administration, that it is a policy decision and would eventually be for the Minister. But I can see cases arising, because statutorily the Minister can only refer to a committee of investigation, where the Law Commissioner would be precluded from entering on the scene.
I take it, also, that legal aid would be available, particularly in view of Clause 7(3)——
§ The Solicitor-General (Sir Dingle Foot)
I think that the hon. Member for Devon, North (Mr. Thorpe) means the Parliamentary Commissioner and not the Law Commissioner.
§ Mr. Thorpe
Yes, I stand corrected. I mean the Parliamentary Commissioner. I take it that legal aid would be available, either retrospectively or otherwise, by reason of Clause 7(3). That seems to me to be an unsatisfactory way of allowing a litigant to recoup after the event, and I wonder if the Financial Secretary will say a word about it when he comes to wind up.
This new office can be an extremely useful weapon for back-bench Members, but it does not remove the necessity for giving hon. Members additional power to cross-examine the Executive, not the least in standing committee, and therefore should not be allowed to push even further into the background the possibility of parliamentary reform, although I think that the Leader of the House is now bringing it into the light of day.
The right hon. and learned Member for St. Marylebone raised the danger of a 132 constituent writing to his Member of Parliament, the hon. Member saying, "I do not honestly think that this is a case to refer to the Parliamentary Commissioner", and then the constituent taking it up with another hon. Member saying, "Well, of course, Mr. So-and-so is a Liberal, or Tory, or member of the Labour Party, but, as you know, I am a firm supporter of your party. Will you please handle it?".
In fact it will not occur, because, unless some procedure is worked out, I suspect that most hon. Members will not risk that happening. They will push it straight to the Parliamentary Commissioner, and the pressures against exercising that discretion will be very great indeed. Therefore, whilst I do not entirely accept the Select Committee idea, I believe that some formula should be worked out. This is another reason why a Select Committee would be valuable for the examination of this Bill.
Having said that, I know that the House will agree that we are extremely fortunate in the personality of the Parliamentary Commissioner selected, and I know that, certainly from this bench, we would like to wish him well in his task.
§ 8.1 p.m.
§ Mr. David Weitzman (Stoke Newington and Hackney, North)
I am glad to follow the hon. Member for Devon, North (Mr. Thorpe), but I am a little disappointed that he did not give us some of his experiences in his recent retail adventure. I am sure that we would have listened with interest.
I have listened to most of the debate. In my view, the Bill involves a discussion of what is not an easy problem. For once I do not agree with the forceful view expressed by my hon. Friend the Member for Nelson and Colne (Mr. Sydney Silverman). I do not think it is simply a question of saying that this is a great constitutional Measure, a great step forward, that we ought simply to welcome it and leave it to the Committee to deal with all the details. I think that during this Second Reading debate we should voice our doubts about this matter.
The need for what has been called grievance machinery, or rather further grievance machinery, has been well recognised. The Whyatt Report has been 133 published, and it is important to remember that it was the result of an inquiry in which the Lord Chancellor's Department and the Treasury co-operated, an analysis of a great deal of evidence from many sources, and a firsthand study of the system in other countries, and that it came down strongly in favour of further grievance machinery. I listened with great interest to the right hon. and learned Member for Marylebone (Mr. Hogg), and again I am afraid that I disagree with my hon. Friend for Nelson and Colne. I do not think that this is a matter of party politics. I share many of the doubts expressed by the right hon. and learned Gentleman, but I think we have to recognise that hon. Members have considerable grievance machinery at their disposal. We have the right to ask Questions, to raise a matter by means of correspondence, to raise a matter on the Adjournment, or to debate it in Supply.
However, as has been said by many Members, the power of the Executive has increased, and goes on increasing. When Members put Questions, or raise a matter of complaint in debate, the Minister's reply is his Department's reply. A Member has no access to the files, and he cannot effectively query the Minister's reply. Therefore, whether we adopt the view expressed by my right hon. Friend the Leader of the House to-day, or the views expressed by the right hon. and learned Member for Marylebone, I think that there is a need for some further Measure which will assist Members in their efforts on behalf of a constituent. I expressly use the phrase "assist Members", because Members are jealous of their rights, and if I thought for a moment that the Bill would cut down their rights in any way, I would be completely opposed to it.
§ Mr. Sydney Silverman
Does not my hon. and learned Friend agree that the Bill, so far from cutting down the rights of Members, reinforces their powers and their rights in many of the respects in which he has just said they are inadequate?
§ Mr. Weitzman
I do not know why my hon. Friend said that. I was going on to say the same thing, that the Bill reinforces Members' rights. A Member will be able to go to the Parliamentary Commissioner to query a reply which he 134 has been given and get the facts checked. A citizen who feels that he has suffered some injustice because of failure on the part of a Government Department will for the first time have the right to have the matter investigated fully.
I said that I appreciated what had been said by the right hon. and learned Member for Marylebone about the difficulties which may arise. I rather think that those difficulties go more to a criticism of the limitations on the powers of the Parliamentary Commissioner than to the creation of the office. Despite what my right hon. Friend the Leader of the House said, I think that the Commissioner's powers are too limited. My hon. Friend the Member for Nelson and Colne rather deprecated any criticism of this Measure. He took the view that it could be amended in Committee, but it seems to me that it is during this debate that we should look at how the Bill is drafted, and look expressly at these limitations.
§ Mr. Sydney Silverman
I apologise to my hon. and learned Friend for interrupting him a second time. Although I made only a short speech, I devoted a substantial part of it to saying how inadequate the Bill was and suggesting that these inadequacies ought to be carefully, and indeed ruthlessly, examined, and if possible amended in Committee.
§ Mr. Weitzman
It is true that my hon. Friend said that we could amend the Bill in Committee, but he rather deprecated the views expressed by many hon. Members on both sides about limitations.
§ Mr. Weitzman
I think that these limitations are important, and that they should be discussed adequately during this debate.
Clause 5(2,a) says that the Commissioner shall not conduct an investigation in respect ofany action in respect of which the person aggrieved has or had a right of appeal, reference or review to or before a tribunal constituted by or under any enactment or by virtue of Her Majesty's prerogative.A number of examples have been given today and I propose to mention one with which I have been concerned.
One of my constituents went into the Navy in 1941 He was then perfectly fit in every respect. There was no question 135 of ill-health. He complained bitterly of ill-treatment in the Navy which brought on mental illness. He was sent to hospital, and after a time he was returned to duty as fit. He was later discharged as being mentally unfit. He has been denied a pension because it is alleged that his incapacity is not due to his service in the Navy. I failed to get satisfaction from either the Minister of Defence for the Navy, or from the Ministry of Social Security as it is now.
I should have thought that that was a case which might well be dealt with by the Parliamentary Commissioner because many documents are involved. There could be an examination of the Department's files to see exactly what the position was and to see that justice was done. This is a dreadful case. The man is mentally ill now, and he feels that he is suffering a terrible injustice. I apprehend that if I endeavoured to send this case to the Parliamentary Commissioner it would be said that the person concerned had a right to appeal to a tribunal, and therefore under the provisions of the Bill the matter could not be raised with the Commissioner.
I recognise that, as a general rule, it may be said that it is difficult to refer to the Parliamentary Commissioner cases which normally go before a tribunal, and that if the Commissioner dealt with cases of that kind he might be swamped with inquiries, but, having said in Clause 5(2,b) that the Commissioner shall not conduct an investigation in respect ofany action in respect of which the person aggrieved has or had a remedy by way of proceedings in any court of law",the subsection contains the important provisothat the Commissioner may conduct an investigation notwithstanding that the person aggrieved has or had a remedy by way of proceedings in a court of law if satisfied that in the particular circumstances it is not reasonable to expect him to take or to have taken such proceedings.Why not extend the proviso to special cases concerning tribunals so that the Commissioner has power, at his discretion, to deal with such matters?
Clause 6(3) provides for a limitation of 12 months in respect of complaints, but it also provides that the Commissioner has power to deal with a case although 136 the complainant knew of the matters in question more than 12 months before. That is an important provision, because many complainants who have nursed grievances for more than 12 months have not been able to pursue them because the Commissioner had not been appointed.
The Bill is drawn in rather a curious way in respect of the exclusion of certain matters set out in Schedule 3. I suggest that the exceptions set out in paragraphs 8, 9 and 10 of that Schedule should be re-examined. Many hon. Members today have commented on these paragraphs. I ask the House to consider paragraph 8 which relates toAction taken on behalf of the Minister of Health or the Secretary of State by a Regional Hospital Boardand so on. Why is that excluded? I know of no good reason. I have heard no reason put forward today. Then there is paragraph 9. I am sure that the right hon. and learned Member for St. Marylebone will be particularly interested in this provision. I am certain that any lawyer will be. It relates toAction taken in matters relating to contractual or other commercial transactions, whether within the United Kingdom or elsewhere.Does that mean that any matter in respect of which a contractual or commercial transaction is involved is completely ruled out? It is a most extraordinary provision, because it seems to exclude all sorts of things.
It is not suggested that the Parliamentary Commissioner will deal with actions where there is a breach of contract—where the facts can be sued for and the matter can be tried in a court of law. Nobody suggests that. But many other cases would appear to be covered by paragraph 9. In my view the provision is drawn so widely that it would preclude anything relating in any way to a contractual or commercial transaction.
§ Mr. Thorpe
This is a very important point. Does the hon. and learned Gentleman consider it possible that even the Crichel Down case could be excluded? Contractual relations with a Ministry were there involved.
§ Mr. Weitzman
It would cover all sorts of things. I cannot understand how these words can have got into the Schedule, or how the Government intend to implement such a provision.
137 Paragraph 10 has created a tremendous argument in relation to that part of it which concerns the Armed Forces. I know that my right hon. Friend the Leader of the House has said that the question of the Armed Forces is a different matter and that we might have a separate Parliamentary Commissioner to deal with grievances in the Armed Forces. The point is that we have not got one. Are we to wait? Are we to pass this Bill first and then, some years later perhaps, deal with grievances in the Armed Forces? We are concerned with grievances in the Armed Forces in peace time and not in war, and I can see no valid reason why there should not be someone, independent of the Executive, to examine grievances of this kind and examine the files in Government offices.
If it is said, "There is too much work for a Parliamentary Commissioner", the Bill provides power for him to appoint staff, and there is no reason why staff should not be appointed to deal with these matters. I regard grievances on the part of members of the Armed Forces as among the most important that hon. Members have to deal with. I regret the inclusion in the Schedule of paragraph 10(a).
Paragraph 10(c) concernsservice in any office or employment, or under any contract for services in respect of which power to take actionand so on. I suppose that this rules out the Civil Service, or anything in connection with a contract where the Crown is concerned. Why? Is not the Civil Service in a stronger position in respect of grievances than are other people?
It may be said, "We are trying this as an experiment in the first instance". If that were said I might understand it if there had also been a promise that if the experiment were successful the powers would be extended. But the Bill seems to have been so drawn and the powers of the Commissioner so limited as to make it difficult to see what advantage we are getting from it. This was a great opportunity for the Government to deal with the grievances of many classes of people. We have given the Parliamentary Commissioner power to engage staff and there is no reason why he should not be given ample staff to deal with the various categories to which I have referred.
138 I want to refer to the powers of the Commissioner in remedying a complaint. I gather that he will report the result of his investigations to the Member who has made the complaint, and if an injustice has not been remedied he may "if he thinks fit" make a special report to the House. If he does not think fit, presumably nothing can be done, although an injustice may have occurred. I should have thought that the Commissioner should be empowered to recommend what should be done to remedy a grievance and, where there is a case for compensation, what compensation should be granted.
I am glad to see that by the provisions of Clause 8(3) the Crown is not entitled to prevent the production of documents by pleading privilege, as it does in certain actions in court. I wish we could have that provision extended to actions in court.
Under Clause 11(3) a Minister may certify that the disclosure of a document or information would beprejudicial to the safety of the State or otherwise contrary to the public interest".I realise that documents will be available in full, without privilege being claimed, to the Parliamentary Commissioner. I realise that this power in regard to a certificate refers only to the publication of documents thereafter, but what is meant by the wordscontrary to the public interest"?It appears that any Minister may say, "This is contrary to the public interest". He does not have to say why. The provision is too vague. It gives a general power to the Minister, and in my view it should be deleted.
I welcome the Bill as a step forward. I agree with my hon. Friend the Member for Nelson and Colne that it is an important constitutional Measure. I am glad that the Government have redeemed their promise, made in the Gracious Speech in 1965, to bring in a Measure of this kind. If it is successful its provisions should be extended to cover local authorities by the provision of a Commissioner for local authorities, or a similar provision. Undoubtedly many grievances arise in connection with local authorities, and some machinery should be provided to deal with them in the same way that the 139 Bill provides machinery to deal with matters concerning Central Government. I hope that it will be successful, but if it is found that the experiment is not dealing adequately with the problem, I hope that the Government will not hesitate to take steps to adopt some other course. This is an experiment—an important experiment—and its results should be watched with great interests and attention. Whatever the remedy, the need for machinery of this kind is certainly essential.
§ 8.21 p.m.
Mr. Harold Garden (Birmingham, Selly Oak)
I should like to congratulate the hon. Member for Thurrock (Mr. Delargy) and the former Member for Carlisle, who initiated debates long ago on this subject. We ought to thank them for the work which they put in. I joined in the debate which the previous Member for Carlisle initiated in 1961. I am sure that although they might have been discouraged at that time, much good has come from what they said then.
Hon. Members opposite should not charge my hon. Friends and myself with being opposed to the idea of a Parliamentary Commissioner. Many of us consistently supported the idea and this should be more widely recognised. Nevertheless, we must voice our disappointment that the Bill does not fulfil the ambitions which many of us had for the institution. It falls far short, as has been said by almost every speaker.
I want the Minister to tell us how far he is prepared to go and whether he can entertain any of the suggestions made today. At the moment, the Bill will not do the job which was envisaged. The public will shortly find from experience just how much of a cheat the Bill is on what the Prime Minister and the Labour Party promised in the election.
The list has been mentioned. Local authorities, the police, the Health Service, nationalised industries, the Post Office and other such institutions are excluded. These are serious omissions. I disagree with the suggestion that about a quarter of a million cases would come before the Parliamentary Commissioner. When this list is excluded, very few cases will be left, as it contains the meat of the matter.
The cases under these heads ought to come within the Parliamentary Commissioner's 140 duties. I support what my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) said on this subject. The omission of the police from the Bill is important. As most of us know-to our cost, we are unable to put Questions to Ministers about police, except for the Metropolitan Police. We are not allowed to question Ministers on the detailed workings of the police. Such questions are ruled out of order. The police will still be able to sack a man from the force, to appoint or discharge anybody, without a Question from an hon. Member being possible. The Bill ought to have included the police.
There is the famous case of the gynaecologist who was sacked by a hospital board and not reinstated although he was tried and vindicated in the courts. This kind of case will still be possible, although it is a famous one which has been cited in support of a Parliamentary Commissioner. There was the Glanfield case of the electric pylons. This also will not be covered. Nor will the case of the doctor who was ruined just because of a bad decision by hospital authorities.
I received the other day details of a genuine case, a complaint by a woman who found that officials of the Gas Board had illegally entered her premises in her absence. I took this up with the Board and they more or less admitted that they were wrong. We shall not be able to bring this sort of case to the Parliamentary Commissioner.
It is important that local authorities should have been included, even for their own sakes, and I cannot accept the suggestion of the right hon. Gentleman that each of them should appoint its own commissioner. This must surely be wrong. All sorts of conflicting decisions would be made by local authorities, sometimes within a few miles of each other. The Minister should tell us whether it will be possible for us to put questions about the Parliamentary Commissioner and, if so, to whom. Supposing that the Commissioner is not able to report because of delays by Ministers. Will we be able to put Questions about those delays? Will he be able to tell us about the delays and enlist our help? These are things which we ought to know.
I am glad that so many other hon. Members have covered so well points 141 which I had in mind. To what extent is the Minister prepared to alter the Bill? It should have been a non-party Measure, perhaps not brought in by the Government at all but by way of a Private Member's Bill, so that we could have had a free vote on this—not that it will be opposed, so far as I can see. I welcome the Bill and am glad, even with the criticisms I have made, that we have it. I could not oppose it, but I must warn the Government that this must not be the last word. They ought to accept Amendments in Committee.
The public will be disappointed when they find what is excluded from the Bill's scope. Besides the possibilities which we could have entertained, many members of the public will not be satisfied. They suffer a great deal at the hands of authority. Some of these things could not be dealt with by means of such a Bill as this, but there are trade union practices from which people suffer and about which they write to us—kangaroo courts and conspiracies and so on—and these things should be looked at.
How we can get protection against outside authorities I do not know, but they are authorities and they hurt the public just as much as some of the authorities which we know so well. I am sorry to say that the Bill will not help very much to change the public image of Members of Parliament or of local authorities. I hope that I am wrong and that the optimists are right, and I hope that we can look forward to something better being fashioned out of the Bill.
§ 8.30 p.m.
§ Mr. John Lee (Reading)
Like my hon. Friend the Member for Nelson and Colne (Mr. Sydney Silverman), I am one of the Members on this side of the House who frequently finds himself in disagreement with the Government Front Bench, and, like him, I am in the happy position this evening of being able to give unqualified support to a Government Measure. Although many of the criticisms which have been made are thoroughly justified, and I intend to add a few of my own in the time available to me, we should not lose sight of the fact that this is a most astonishing constitutional innovation. Hitherto a Member of Parliament has been regarded in the strict legal sense as being a. legislator, and the duties which we perform by way of looking after the 142 interests of constituents, important though they are and normal though they have become in the eyes of almost every hon. Member, were something which grew up long after hon. Members first came into existence and long after the primary function of a Member was recognised to be that of legislator and of a provider of financial supply. For the first time, the Bill enshrines in the constitution our duties to our constituents in the matter of personal grievances.
My hon. Friend the Member for Nelson and Colne was right to raise the debate to a slightly higher plane when he bestowed praise upon the Government for bringing the Bill forward. It would have been quite easy in the present economic circumstances and when there is a crowded legislative programme—so crowded that it has brought us back some days earlier than is normally the case—for this Bill to have been shelved, and it is entirely to the Government's credit that they have resisted the temptation of doing that and have proceeded with the Bill.
I can think of several reasons why I support the Bill. The first has been mentioned so many times that I hardly need to expand upon it, and that is that the resources at the disposal of a Parliamentary Commissioner are far greater than those at the hands of even the most fortunately situated Member of Parliament who has a battery of secretarial help and perhaps even outside sources to assist him. No doubt when I have been a Member of the House rather longer, I shall be able to organise my time rather better and more efficiently than I do at the moment, but I doubt whether, without the Bill, I should have been able to find a solution to the problem of dealing with the kind of complaints against Government Departments with at least two of which I have had to try to cope in the last six months. They have taken up more time than any single duty that I have been called upon to perform since I have been in the House.
It is also important to remember, when one is investigating a complaint, that one owes not only a duty to the person making the complaint but also a duty to the person and the Department against whom the complaint is made. I understand that there is a Parliamentary convention, and one which deserves to be supported, that one does not pillory people's names in the 143 House. It is therefore very important to bear in mind that whereas names are bound to be thrown about, sometimes indiscriminately, at Question Time, the privacy of the Parliamentary Commissioner's work will go a long way to protecting innocent people from the smear of guilt by association or from the harassment of criticisms, some of which might not be deserved.
Another reason for supporting the Bill is that a Minister investigating his Department, however conscientiously—and I am sure that most Ministers of all parties when confronted with a complaint of a serious kind investigate it thoroughly and to the best of their ability—is put in an invidious position of being at one and the same time constitutionally responsible for his Department, and therefore having to stand up for it at the Despatch Box, and also in the last analysis the disciplinarian of the same Department which he is called upon to defend.
Another reason why we should support the Bill wholeheartedly is that while there is the complainant who will never be satisfied, however thoroughly his complaint is investigated, there may be a few who, even though they do not get the answer they want, are more likely to be satisfied when the matter has been processed by an official or dignitary wholly independent of the Department and of the Government of the day at whose hands they believe, perhaps wrongly, that they have suffered a measure of injustice.
Another reason for supporting the Bill, which I think applies to hon. Members on this side of the House just as much as to hon. Members opposite, is that although we welcome and indeed regard as inevitable the extension of Governmental power, it is a very healthy thing that there should be correctives. We pride ourselves on having an independent judiciary and on having an independent Auditor General—and, as my right hon. Friend pointed out, the latter demonstrated his independence very sharply when dealing, for example, with the Ferranti Bloodhound missile episode. We are adding this new official to the armoury of non-Government scrutineers of Government policy, and it is a happy coincidence that the first appointee is the man who has previously demonstrated 144 so robustly his independence in the office of Comptroller and Auditor General.
I do not say, when I go on this unexpected path of bestowing praise on my Front Bench, that I do not share some of the criticisms which have been made in the debate. I cannot understand Schedule III and I cannot understand the logic behind it. I think that the Minister will be in some trouble if he tries to justify it. It is all very well putting in the Home Office and excluding the police, putting in the Ministry of Defence and excluding the Armed Forces, but it does not make sense. I think that the simple criterion would be that anything on which it is permissible to ask a Parliamentary Question on the Floor of the House ought to be the subject of investigation by the Commissioner.
To those hon. Members who fear that there may be a flood of complaints, there are several things which can be said to reassure them. First, most hon. Members, I am sure, take their duties seriously enough and do not pass the buck by passing on complaints which are obviously frivolous or obviously "phoney." The second reassurance is contained in the Bill: the Commissioner is not bound to carry a complaint to the point of holding a formal investigation. It is obvious that for every complaint which eventually finds itself the subject of a formal investigation and, one hopes, report to the House, there will be many which will not justify going so far. I want to make a suggestion which I hope the Minister will consider and which could help to reinforce the protection of the Commissioner against frivolous and vexatious complaint.
I draw an analogy from the procedures in the courts. There are powers in the courts—not very extensive but useful—so that when a person is suspected, particularly in relation to an appeal, of pursuing a matter which is wholly without merit, he may be called upon to deposit a sum of money, security against costs, and to fulfil a number of other conditions which bind him and which therefore make it that much more inconvenient if, when the matter comes up to be adjudicated, it is shown to be wrong and without foundation, and that is obviously to the disadvantage of the individual putting it forward.
While I in no way wish to whittle down the informality which one hopes 145 will attend the investigations and procedures of the Parliamentary Commissioner, I suggest that the rules might be so ordered that in some circumstances, when the Commissioner is in some doubt about whether a matter justifies the expense of a full investigation, the person making it may be called upon to put forward some sort of financial security.
So far all hon. Members have been arguing from the point of view of the complainant. That is right because we agree that the problem of the complainant, in the large and complicated Government system which we have, is of great importance however one deals with it. But there is the other side to the question—the protection of officials from harassment and the protection of the community against undue expense at the hands of cranky or similar complainants, and I hope that my right hon. Friend will bear this in mind.
Even if my right hon. Friend does not accept the suggestion made by almost all hon. Members—that the sphere of investigation by the Commissioner should be enlarged—I hope that he will accept that there might be a case for allowing the Commissioner the right in certain circumstances to initiate investigations.
As envisaged, everything starts with the hon. Member. This is probably right because, after all, this is an instrument in the hands of hon. Members. However, suppose that a situation arose in which the Commissioner, in the course of his work, discovered a state of affairs which, in his view, merited further investigation, perhaps ranging much wider than the complaint put forward by the hon. Member on behalf of the original complainant? In such circumstances would there not be a case for allowing the Commissioner to enlarge the sphere of his activities?
Many hon. Members have referred to the overlap of Government Departments, particularly regarding local authorities, and one can envisage a situation arising in which, if the Commissioner is not given discretion to do what I have suggested and if my right hon. Friend insists on keeping to Schedule 3, grievances and injustices may come to light and yet the Commissioner will be frustrated from dealing with them.
I reinforce the remarks of hon. Members who think it odd that hon. Members' 146 complaints should be channelled through hon. Members representing other constituencies. I am the only hon. Member of my political party in Berkshire, although I hope that that state of affairs will be remedied at the next election. I find that I am able to work amicably with my colleagues of other political persuasions in Berkshire and I would not think of encroaching upon their constituency matters and I know that they feel the same towards me. It does not seem an adequate explanation to say that an hon. Member's constituent should be permitted—indeed, encouraged—to be shy of his own hon. Member merely because he happens to be of a different political colouring and that the constituent should run to another hon. Member, meaning that some hon. Members will become expert as a sort of catchment area for the matters of other hon. Members. Quite obviously, where the constituent is complaining about a matter where his own Member is Minister, that is a different thing altogether, but I should have thought that to be the only exception that would be permissible. I hope my right hon. Friend will bear it in mind.
I end, as I began, by saying that I think that this is a very remarkable and, indeed, a most exciting and imaginative legislative innovation. I commend the Bill to the House, and hope that it will receive an unopposed Second Reading.
§ 8.45 p.m.
§ Mr. Charles Fletcher-Cooke (Darwen)
I, too, welcome wholeheartedly the principle behind this Bill. I particularly welcome the Government's decision to give the Parliamentary Commissioner the very strong powers of being able to act in spite of the dislike of the Minister, and to have access to internal minutes; and that he shall be met with no plea of Crown privilege. These are very strong powers, indeed—so strong, in fact, that they raise various difficulties in the Parliamentary Commissioner's relations with Members of Parliament. That they are very strong, coupled with the fact that access to these powers is only through Members of Parliament, raises the sort of constitutional problems which trouble not only my right hon. and learned Friend the Member for St. Marylebone (Mr. Hogg) but the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine). 147 It puts Members of Parliament in a very privileged position to have the right to say "Yes" or "No" to the access to these powers, and it is putting too much of a strain on them to suggest that they should act as a sort of screen or sieve.
Let us see what this means. First of all, if they think that they can do better by the normal procedures, it would take a very confident Member of Parliament to believe that he could get from a Department, without the power of looking at internal minutes, without the power of being able to say "No" to any plea of Crown privilege, without the power of actually getting into the Ministry—which is pretty well what the Parliamentary Commissioner will be able to do—as well as, if not better, by the traditional means. I do not believe that any of us in this House believe we could do that in future, and I therefore do not think that the alternative means really will be the alternative means in future.
Secondly, with regard to the sieving or screening process, suppose a constituent tells one directly, "I wish this to go to the Parliamentary Commissioner"—and, of course, a great many people with grievances knew about the Parliamentary Commissioner and are likely to say that directly to one. What is one to do? Provided it is more or less within the ambit of his powers—and that ambit is rather fuzzy at the edges at the moment and will have to be defined much more closely if Members are expected to indulge in this screening process—but assuming it is within the ambit of his powers—however so defined, it will take a very brave Member—certainly a Member with a majority of over 10,000 votes—to say "No."
How is he to arrogate to himself this knowledge without the powers of sending for papers, without the powers of looking at the minutes, however cracky the constituent may seem at first sight? At least 10 per cent. or 5 per cent. of the complaints may be justified, and to expect a Member without the power to look at these minutes and to send for secret papers to be so sure, when directly so asked by his own constituent, is, again, I suggest, giving him too much of a burden. I therefore think that in the very strength that the Parliamentary Commissioner will have—which in many 148 ways I welcome—one is detracting, perhaps inevitably, from the traditional procedures of the back bencher, and also one is taking away to a certain extent his power not to carry on or carry through a case which at present he can exercise more easily. Therefore, this is a serious constitutional matter and it is quite wrong for the hon. Member for Nelson and Colne (Mr. Sydney Silverman) to pretend that because we draw attention to it, we are somehow sneering at the Bill. We are not.
I should like the Financial Secretary when he replies to answer some questions about the principle of exclusion. Although I do not share the view, I understand in logic that if the Parliamentary Commissioner is considered as an alternative method of approach, as the Lord President suggested, to the traditional approach by Question or by Adjournment debate, only those matters which are susceptible to Parliamentary Questions and on which a Parliamentary Question would be in order can be included in, as it were, the extension of the activities of Members of Parliament through the Parliamentary Commissioner. Therefore local government and local authority affairs, as with those of the nationalised industries, must by this logic be excluded although, as everybody has said, we know that perhaps three-quarters of the grievances occur in those sectors. Nevertheless, the logic of the Lord President's opening speech means that they should be excluded because we are not allowed to put Questions on those matters.
If that is right, however, surely it follows that the Parliamentary Commissioner should be empowered to look into all those matters on which we are allowed to put Parliamentary Questions and that the Government should not have it both ways. If that be the logic of the matter, the Parliamentary Commissioner should be allowed, for example, to look into this strange matter in paragraph 9 of Schedule 3:Action taken in matters relating to contractual or other commercial transactions.Suppose, for example, that there is a grievance that somebody is not getting his fair share of Government contracts, that he suspects that there is "maladministration", to use the sacred word in this subject, and that he may have circumstantial evidence to that effect. Why is 149 not that a proper matter for investigation by the Parliamentary Commissioner? What is the logic for excluding it? One could perfectly well put down a Question about that.
If the Government were giving contracts in a way that one considered to be favouritism or in some other way prejudicial, one would be entitled to cross-examine the relevant Minister on the subject at Question Time. I do not see why the Parliamentary Commissioner should not be seized of that matter on the logic of the Lord President's opening of this debate. Indeed, the right hon. Gentleman gave no suggestion—nobody has—why such matters should be excluded.
There are all sorts of matters in this penumbral area of the commercial field. It is noticeable that the Treasury is among the Departments which can be investigated. Does this, however, include such matters as exchange control, which is normally administered by the Bank of England as agent, or, perhaps, as the servant—I am not sure which; this is an area of doubt which has already arisen in this debate—of the Treasury?
Suppose that somebody is persuaded that certain people are being given powers to invest abroad, for example, or to use the Government's exchange control permission more freely than other people in a like case. At present, no reasons are given for the refusal of the Bank of England although there are some malicious persons who think that if one goes to the right merchant bank one is more likely to get permission. Is that the sort of thing that the Parliamentary Commissioner will be allowed to investigate if a reasonable plea is levelled on those lines, and if not, why not? Does it come under the exclusion of commercial matters which for some reason are held to be sacred?
I cannot imagine anything less sacred than commercial matters. I can see some case for excluding questions concerning the Armed Services. I can even see some case for excluding the Ministry of Health and these hospital boards, merely on the grounds, that the load of work would be too great. I imagine that is the justification. I cannot see any other. Why commercial matters should be treated behind this impenetrable screen nobody has yet suggested, and I think it is time 150 somebody did, because, of course, it conflicts completely with the principle, as I understood it, that the Parliamentary Commissioner could do anything which a Member could get at by way of Question, if the Question were in order.
Then, finally, I want to ask something about the strange limitation suggested by the Lord President of the Council that the Parliamentary Commissioner could not investigate matters which had been decided as a matter of discretion, that this was somehow not maladministration but the exercise of a discretion; however bizarre it might appear, however much it might conflict with previous exercises of a discretion on the same sort of facts, it was somehow not maladministration even though it might have caused great injustice.
One of his own supporters in the debate, every word of which I have heard, raised rather a good example of this. What the hon. Lady the Member for Holborn and St. Pancras, South (Mrs. Lena Jeger) did was to raise the cases of two widows, or, at least, two lathes whose husbands had been presumed dead by the courts of Glasgow and Edinburgh respectively, and these presumptions of death were accepted by the authority in Edinburgh as sufficient to pay her her pension as a widow, whereas the authority of the Ministry in Glasgow took the opposite view——
§ Mr. Fletcher-Cooke
That may be, but the cases seem to conflict. I am not saying which was right and which was wrong. All I am saying is that they were different. It was not my case at all, but it was the hon. Gentleman's hon. Lady Friend who raised it.
§ Mr. Fletcher-Cooke
She raised it on rather a different matter. She wondered whether this would be a matter for the Parliamentary Commissioner, within his scope, because she thought that the agencies which had made these decisions were perhaps too independent to come within the direct responsibility of the Department concerned and that therefore the Parliamentary Commissioner would find some inquiries ultra vires.
151 I want to assume for the moment that she was wrong about that, that these decisions had been made by servants of the Crown, of the Department concerned, but that they had been made in different senses. Would the Parliamentary Commissioner then be met, or the Member of Parliament be met, simply by the defence that these were exercises of discretion?—which, I have no doubt, they were; but the fact that they were mutually contradictory might still mean they were exercises of discretion, and perfectly reasonable exercises of discretion, because some people think one way and some people think otherwise on these matters. Can the Financial Secretary give us some of the limits of what is meant by this defence of discretion? Because I believe that if this is analysed, if it is thought through in a proper, honest and intellectual way, it will be found that almost every complaint of injustice can be defeated by this plea that it was an exercise of a discretion and therefore cannot be inquired into or resuscitated. We therefore need a larger exegesis of this troubling limitation, which does not appear in the Bill but which is evidently important because the Lord President took up a great deal of his speech trying to explain the difference between the exercise of a discretion, however foolish it may appear, and maladministration, which is something to do with either turpitude or ineptitude.
With those words the House will realise that, keen as I am on this new arm to see that the Executive does not misbehave, there are logical fallacies in the framework of the Bill which will have to be put right and which will have to be analysed at great length in what promises to be a most interesting Committee.
§ 9.1 p.m.
§ Sir John Hobson (Warwick and Leamington)
Anything that touches the relationships between the citizen and authority or that concerns our constitutional arrangements for dealing with the complaints of citizens is bound to be of vital interest to all hon. Members and, perhaps more important, to all members of the public. We have had a fascinating discussion on this exceedingly difficult topic. Let nobody think that solutions are easy, that we can wave our hands and say that the principle is plain, that it is all perfectly simple and that we can go 152 ahead, because, as was said by the hon. Member for Thurrock (Mr. Delargy) Ouot homines, tot sententiœ … That has certainly been the spirit of the debate today.
The other notable feature of the debate is the general welcome which has been given to the Bill coupled with the expression of widespread anxiety about its exact nature, its likely effect, and the powers, status and functions of the Parliamentary Commissioner whom it proposes to establish. We have had an innumerable list of illustrations of all the things that the Parliamentary Commissioner will not be able to do. I have not heard—certainly not from the Leader of the House—many examples of what he will be able to do. This anxiety as to the real nature of the duty which we shall cast upon the Parliamentary Commissioner has been the principle topic of the debate.
My hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) stated that we shall have a prolonged and fascinating Committee stage. If the rumbustious and enthusiastic attitude of the Leader of the House in supporting the Bill and resisting every breath of criticism about it is any indication of the results of the Committee I regard them with foreboding. But I hope that as a result of today's discussion the Government will see that there are very difficult problems with which hon. Members on both sides of the House are concerned. We are only just beginning to consider the Bill and the problems that arise, and during the Committee stage we may be able to make very considerable improvements in it.
We have been a little introspective in the debate, because very much of it has been concerned with the position of hon. Members only, with what their function will be and how the new Commissioner will be related to it. I should have thought that the principal importance of the Bill was the relationship between the Parliamentary Commissioner and the citizens, and we should concentrate principally in Committee on seeing that the ordinary citizen who has a complaint will get a reasonable remedy and a reasonable new form of assistance from the Parliamentary Commissioner.
Before I come to the details of the debate, I am sure that all hon. Members 153 would like to join with me in congratulating the hon. Member for Bradford, West (Mr. Haseldine) on his admirable maiden speech, which was both fluent and interesting and which was obviously about a subject he had thought about carefully. I am sure we all look forward to his contributions in the future and hope that he will continue to be able to bring to our deliberations that careful mixture of politeness and good argumentation without being aggressively controversial. We greatly enjoyed his speech and I know that everyone would wish to congratulate him.
I think one result of our debate today will be that the public will begin at last to understand that the Government's proposals bear no relation whatever, or singularly little, to what they have generally come to think to be the scope of this Bill. I saw that at Brighton the other day there was great enthusiasm when a lady announced that she had had her rent altered as a result of the efforts of the prospective Ombudsman—I am sorry, Parliamentary Commissioner. Anything more misleading to citizens who did not realise that she was only passing an encomium on his merits and not on his functions, is impossible to imagine. I entirely agree with my hon. Friend the Member for Birmingham, Selly Oak (Mr. Gurden) that the public will steadily begin to understand that this Bill is very strictly limited. I am afraid there will be many who will be disappointed to find that the promised remedies they had expected from this new institution are not to be available to them at all.
I think my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth) made this same point, that many people would be disappointed in this Bill. When I saw the Bill and the limitations contained throughout it, I thought it a very good example of the efforts of that old tortoise we know so well in this House, the Government and the Civil Service, wary of non-exposure of anything that matters at all and reservation of the right to prevent even the slightest exposure, if they wanted to prevent it, of anything of importance.
The justification which the Leader of the House gave to the Bill was rather remarkable. To change my zoological metaphors, he was recommending a very sharp needle for dealing with the 154 elephant. It was like saying, "I have a tremendously sharp instrument which is very acute. It may penetrate very deep, but it will not do much damage and will be used over a very limited field."
As an example of what might have been done, I commend to the House the pamphlet issued by the Inns of Court Conservative and Unionist Association. I am very sorry indeed that my hon. and learned Friend the Member for Kensington, South (Mr. Roots), who sat on this Front Bench and was anxious to express views on that method of procedure, did not have an opportunity of expounding the Association's proposals here.
The Association, of course, looked for inspiration to the French system of droit administratif and proposed a quite different system in which there were judicial investigating committees under which the citizen would be given a remedy by the administrative court which had the duty of looking into allegations about the way in which the Administration was carried on. This is a completely different concept from what is in the Bill. It is a completely different from the Scandinavian systems and the system in New Zealand, but it is one of considerable interest. I am sorry that my hon. and learned Friend did not have an opportunity of expressing that alternative method of approaching the problem. [Interruption.]
I hear the Leader of the House saying in an audible whisper that I was a member of "Justice". He referred to this matter in his speech. I ought to explain that I was never ever present at any meeting of the Council of "Justice" when the Bill was discussed and when the most recent document issued by "Justice" was circulated it was made perfectly plain that it did not represent the views of all members of "Justice". Just as in parties in this House there are considerable divergencies of effort and methods, so with "Justice" there are considerable variations of views.
The proposals in the Bill are not really for a Parliamentary Commissioner. They are for a House of Commons additional agent. "Justice" itself has said, in its most recent memorandum, that it thinks that Members of the other House of Parliament are just as concerned with remedying grievances and that many 155 Members of the other place have taken as active a part in trying to secure remedies for citizens as Members of this House.
To that extent, if we are to use the term "Parliamentary Commissioner", I very much hope that we will consider whether the other place ought not to have some part analogous to our own in considering and dealing with the question of the Parliamentary Commissioner. I will return to that aspect later and will suggest some of the problems which ought perhaps to be considered.
It is true, and this is the great justification for the setting up of the office of Parliamentary Commissioner, as my hon. and learned Friend the Member for Darwen pointed out, that the Commissioner will be armed with powers which Members of neither House of Parliament, certainly not of this House, could possibly either expect to possess or be expected to exercise. He will be able to insist upon an investigation. He will be able to have access to Government files. He will be able to insist on sending for witnesses and be able to have the most detailed examination of all the facts concerning a case. This is the real justification for the Commissioner, and it is one which may be of considerable importance.
My right hon. and learned Friend the Member for St. Marylebone (Mr. Hogg) and the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) were right in saying that to some extent this new office was likely to diminish the status of Members of Parliament. I agree with the hon. Member for Reading (Mr. John Lee): I hope it will be clearly understood, if not actually laid down, that in general, apart from complaints by citizens against their own Members of Parliament who may be the responsible Ministers, complaints, if they are to come through some Members of Parliament, should come through the Member for the constituency concerned in most cases.
I agree with my right hon. and learned Friend the Member for St. Marylebone that on many occasions this new office will provide a considerable alibi for Ministers, who will be able, while an inquiry by the Ombudsman is continuing, to avoid any Questions and to this extent will be able to gain additional time during which the problem may slip into the background, 156 and when the report comes out the heat will be off that particular problem, which may have been greatly embarrassing to them.
I think there might be occasions when this institution will to some extent provide a protection for the Minister rather than a weapon in the hands of citizens who require a remedy.
I need not rehearse all the criticisms which have been voiced about the limitations which exist on the position and powers of the Parliamentary Commissioner, but some notable ones were frequently repeated during the course of the debates. The most frequent was the problem of local authorities. I agree with the numerous speakers who said that the proposal of the Leader of the House that it should simply be left for individual authorities, particularly the greater ones, to set up their own commissioner to investigate complaints is really an inadequate answer.
I come from a constituency which has five local authorities, none of which is very large, and I find the proposition that each of the five should have its separate organisation for investigating complaints absolutely horrifying. Either there must be a resolve that nothing is to be done about local authority problems or complaints against local authorities, or this matter must be done on a national basis, either with regional commissioners or some other form of central organisation.
I have no doubt that when we come to the Committee stage there will be a large number of Amendments which will endeavour to put forward some proposal for dealing with the problems of local authorities. I certainly agree with the hon. Lady the Member for Holborn and St. Pancras, South (Mrs. Lena Jeger) that there is a very difficult problem in those cases where the citizen finds himself suspended between the two stools of central Government and local government. Many of the worst problems that we have to deal with involve knocking two authorities' heads together. It is the citizen who slips between the ordinary machinery of Government who most frequently needs our help. We shall find on those occasions that while we may be able to knock one head with the help of the Parliamentary Commissioner, we shall not have any assistance from him 157 in knocking the other head involved in the problem.
This does not only apply to central and local government. There are all the other fields where the Parliamentary Commissioner has part of the problem, and yet the problem arises out of facts that spread over a far wider field than merely that which comes within the scope of this Bill. Certainly I agree that there is a very difficult problem raised by the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) and my hon. and learned Friend the Member for Darwen about, first of all, contractual relationships with the Government. I cannot understand why, if one says that there is some contractual relationship in any Department, the Commissioner must be excluded. It is almost equal to saying, "You ought to go to a court of law". But if there is a contractual claim, even the Commissioner can in certain circumstances investigate it. I agree with everything that was said by both those hon. and learned Members.
As to commercial transactions, I have at present a case in my constituency where a complaint is made, I know not with what truth, that an invention that was not patented was shown to a Government Department where it was shown to somebody else who allowed it to be developed. That was certainly a commercial relationship and, if the facts are true, it is a case which might very well be investigated by the Parliamentary Commissioner to judge whether the conduct of those in authority concerned with that matter could or could not be justified.
Another notable omission that has only been touched on by the hon. and learned Member for Stoke Newington and Hackney, North is the fact that the Commissioner has absolutely no power to grant any remedy of any sort or description, or any power to grant any compensation. The only result of the activities of the Commissioner will be to make a report. He can make a report and there can be publicity. But publicity is not much help to a person who has lost his home or business or has suffered some other disadvantage wrongfully at the hands of the Executive. While it may be that on many occasions the publicity may result in something being done to put the matter right, I am prepared to lay a large amount 158 of money that public money will never be the method by which it will be put right.
There are many occasions on which the Executive has put people in a position that cannot possibly be altered, and it would be very difficult indeed to remedy that situation by mere payment of compensation even though it were available. Of course, as we all know, the real danger to the liberty of the subject at present is the form in which we so frequently legislate in this House, because we are more and more inclined to give a general power to a Minister to take decisions at his discretion—vital words in this context—and not to consider what limitations and shackles shall be put upon him for the protection of the rights of individual citizens. This, in the way that our legislation is fomented and digested, is inevitable because it comes usually out of the maw of a Government Department which is anxious to see that its hands are not tied, in the honest belief that it can be much more efficient if it has a wide discretion to say what appears to it to be just, and finds it convenient not to give citizens a lot of rights in situations in which they can be obstructive and awkward.
To this extent, if one looks at Acts of Parliament passed before, say, 1939, and the form in which we legislate today, one will find that, more and more, Ministers are simply given discretion to do what they think right. They are given a general indication of what Parliament expects and thereafter it becomes entirely a matter of discretion for them as to how they administer the Act concerned.
Of course, the Parliamentary draftsmen and Government Departments learnt a lot from the case of Liversedge and Anderson in that, if legislation is framed properly, making it plain that the discretion is that of the Minister and the courts are allowed to form no judgment, more and more Ministers are being given discretion to do what they no doubt think is right and to do what they want to be the right thing but which can nevertheless have very serious consequences for an individual citizen.
The real problem that has not been faced in the Bill and which I would like the hon. and learned Gentleman to explain in more detail is what exactly is meant by "maladministration" in this context. It is a very difficult problem indeed to show within the exclusions of 159 the Bill what the Parliamentary Commissioner can do. He cannot embark on questions of policy. I do not think that that is in the Bill but it is obviously implicit. Yet it is rather like telling an efficiency expert that he cannot consider what his board of directors has done. Anyone who has been concerned with Government knows the immense detail on which Cabinets and Cabinet Committees take their decisions affecting quite small matters. But all this would be excluded from the purview of the Parliamentary Commissioner.
If, of course, it is truly a matter of overall Government policy, then I think it right that the Parliamentary Commissioner should not be allowed to investigate—that is perfectly correct because the Government as a whole are responsible to Parliament for policy. The same applies where a Minister undertakes an act which is ultra vires and for which he has no power. Under those circumstances, the citizen has a perfectly good remedy in the courts. He can go there and get a declaration. Apart from that, he may be able to get damages and other remedies from the courts.
While there is a proviso that the Parliamentary Commissioner may allow a matter to be investigated on which there is a remedy in the courts if he thinks that it is reasonable of the complainant not to go to the courts, I wonder when and how he will form that judgment. I have always thought that only in extreme cases should people go to court. They should avoid it wherever they can. But it is a difficult judgment to say whether it was or was not reasonable for a citizen who has a remedy in the courts to decide that he should not pursue the matter in the courts but should go to the Parliamentary Commissioner. It will be exceedingly difficult.
I imagine that the decision will be taken not on the ground that the citizen is in awe of the courts but because his is the sort of matter on which no one would be expected to litigate and that the Commissioner will say, "Despite the fact that you have a remedy in the courts, I will look at it." But in cases where Ministers or civil servants have exercised ultra vires their powers, I would expect the Commissioner always to say, "You have a perfect remedy to show whether this is 160 ultra vires or not by going to court, the proper place for this matter to be investigated." Any act which is ultra vires is generally a matter for the courts. If a Department of State is involved, that is the Government and they are responsible.
What is left, except the discretionary exercise of ordinary powers by a Minister? Of course, I quite appreciate that there may be cases. There will be almost none where there is moral turpitude or sheer malignity on the part of a servant of the central Government, because such cases do not happen once in 20 years, in our experience. As for ineptitude, I dare say that occasionally civil servants do not answer letters promptly enough, or there may be some other occasion where they are a bit slack in the discharge of their duties and there might be complaints. Those are not the cases that really worry the citizen. The thing that really worries him is perhaps the example given by my hon. and learned Friend the Member for Darwen where one civil servant, perfectly properly and quite correctly says, "I have a difficult decision to make. I am going to take this decision. I think it is the sensible solution." It is a marginal case, though it may have disastrous consequences for the citizen, but no one can say that it was not a sensible exercise of Ministerial discretion by the civil servant. Next week, there may be a completely different decision affecting a different citizen. Equally, it is all a matter for discretion.
Another question which I should like to ask is how we get into the Bill the idea that the Parliamentary Commissioner cannot examine decisions taken with the exercise of discretionary powers. It appears in paragraph 11 of the White Paper, but I cannot find a single word about it in the Bill. I have always thought that the great problem of the Parliamentary Commissioner came down to the question of whether we were or were not going to allow him to review the way in which responsible Ministers exercised their powers. That is really the matter about which the House has to make up its mind.
We have a Bill before us which, according to the Leader of the House, excludes the right to look into the exercise of discretionary powers. If that is the position, the Bill may as well be torn up, because 161 it will not do very much good, except occasionally to find that someone has been rather slack in the performance of his duties. But that is not what the citizen is interested in. He is interested in the way in which the Government exercise their powers as they affect the individual citizen. We must make up our minds whether we are going to rely on the Ministerial responsibility to Parliament of those who have the power and in whom Parliament has placed it, or whether, in addition, we are going to allow an official to make a report that the responsible Minister did not exercise his discretion in the right way and made a mistake. I have always thought that that is the great problem about having a Parliamentary Commissioner. Ultra vires acts can be very easily dealt with by the courts.
The uses of tribunals can be easily dealt with as well by setting up tribunals for special occasions. The real crunch about the Parliamentary Commissioner is whether he will have the power to criticise the Minister for the way he is doing what is within his discretion. We are told by the Leader of the House that the Parliamentary Commissioner will not have that power. As I understand the Bill, he is perfectly free to do so.
I hope that the Government will consider whether the individual appointed cannot be made a Parliamentary Commissioner in the true sense, in that he should be removed only on an Address of both Houses of Parliament and not one, that complaints should come through Members of the other place as well as this House if they are to come through Members of Parliament at all, and that reports of the Commissioner should not be made simply to the individual Member through whom the complaint came, but either to both Houses so that everyone may know publicly what is the result of the investigation, as in a judicial process, or to a Joint Select Committee of both Houses which can consider and report on what has been said as a result of the investigation of the Commissioner.
This is a fascinating topic, and we have had a debate which has ranged widely over the problems which the Bill raises. I regret that we did not debate the White Paper before we had the Bill, because there is a great deal more to be said about the Bill and the shape of it, but 162 at any rate we will have the opportunity in Committee of seeing how we can improve it.
§ 9.30 p.m.
§ The Financial Secretary to the Treasury (Mr. Niall MacDermot)
I should like to begin by joining the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson) in the very kindly and well-phrased praise which he bestowed on my hon. Friend the Member for Bradford, West (Mr. Haseldine) for his maiden speech. I suppose that there are not many hon. Members who have been able to make a maiden speech on the subject of Parliamentary reform. If there are, I am sure that no one made his speech as cogently, as thoughtfully and as persuasively as my hon. Friend did, and I am sure that we all look forward greatly to hearing further speeches from him.
The right hon. and learned Member for St. Marylebone (Mr. Hogg) began his speech by saying that this was not a party issue. If by that he means that he hopes that for the future the activities of the Parliamentary Commissioner shall not become a matter for party dispute, and that, as I am sure we all want, he will be looked on as a servant of this House whose activities will not become the subject of party battle, I am sure we would all agree. But if one looks at the history of how we come to have this Bill before us, one realises that it is a party issue, in that part of our election platform on which we were elected was our proposal to introduce a Parliamentary Commissioner.
The proposals before the House follow very closely those of the Committee of Justice to which my right hon. Friend paid rightful tribute earlier today. These same proposals were rejected by the party opposite when it was the Government, and it is interesting to see the reasons for which those proposals were rejected, and to judge some of the speeches which we have heard from hon. Gentlemen opposite in the light of those objections.
The first objection was that setting up a Parliamentary Commissioner would seriously interfere with the prompt and efficient dispatch of public business. I do not think that we have heard an argument adduced today in support of the interests of the Executive. Most of the arguments have been that the Bill 163 does not go far enough in controlling the Executive at different levels, but it was on this ground, first, that the Party opposite rejected these proposals.
Secondly, the proposals were rejected on the grounds that in the then Government's view there was already adequate provision under our constitution and Parliamentary practice for the redress of any genuine complaint of maladministration, in particular by means of the citizen's right of access to Members of Parliament. In other words, it was thought to be unnecessary. When the right hon. Member for Marylebone says, as he did today, that in his heart of hearts he suspects that that rejection by the Government of which he was a Member was in fact a right rejection, I I do not know which, or if it is both, of those reasons he thought was the right one. Today we heard him singing a different tune. He thought that the need for some kind of grievance machinery additional to what we have in Parliament scarcely needed to be emphasised—a need which was utterly rejected by the Government of whcih he was a Member.
When we announced our proposals and they were being discussed during the 1964 General Election, the right hon. Gentleman the Leader of the Opposition added an additional ground for rejecting these proposals. He attacked them as being a threat to the authority of Parliament, and this argument has been put forward again today by hon. Members. Some anxieties on this score have been expressed by hon. Members on both sides of the House. I confess that I find this argument difficult to follow. Whatever criticism may be levelled against these proposals, surely it is not a justifiable criticism to say that they are undermining the authority of Members of Parliament as defenders of the liberties of the subject and of the individual?
The outstanding feature of our proposals—which is carried out in the very name of the Bill—is that we are proposing a Parliamentary Commissioner, a new officer of Parliament, who will be the servant of Parliament and who will report to Parliament under whatever machinery we decide to set up. His services and powers—and it is generally agreed that his powers will be very considerable—can be invoked only 164 through the channel of a Member of Parliament. They will have to derive and spring from an individual complaint or grievance by an individual person or company or body of persons.
Our proposals are tailored to our Constitution. They are based on long experience—lasting now for over 100 years—of the officer of Parliament, the Comptroller and Auditor General. The precedent of that office has been followed very closely in framing these proposals. I have not looked up the records but I have no doubt that when Mr. Gladstone proposed to this House the setting up of the office of Comptroller and Auditor General there were some voices to be heard saying that this would undermine the authority of Members of Parliament in their historic rôle of controlling the Executive. If there were such voices. I should think that they are very dead now. [An HON. MEMBER: "I should hope so!"] Doubtless they have successors. The one thing on which this House is universally agreed is that the office of Comptroller and Auditor General, together with the Public Accounts Committee to which he reports, is a most effective instrument of this House for controlling the Executive.
The need for setting up a Parliamentary Commissioner is a matter on which judgments will vary—and it is a matter of judgment. It is only when we have set up this Commissioner and have had some experience to go by that we shall be able to judge. From the way in which some hon. Members have spoken one would think that the Parliamentary Commissioner will be inundated or flooded with a mass of complaints and investigations, although other hon. Members have said that there are so many exclusions in the Bill that he will have virtually nothing to do. We shall see. In framing our proposals we have tried to extend his field as far as seemed to us to be reasonable and practicable within the sphere of Central Government.
In general, we think that these proposals have been welcomed, not least by the Civil Service. The right hon. and learned Member for Chertsey (Sir L. Heald), in referring to some of the exclusions, said that he thought that the Whitehall Protection Society had been at work. With respect to him, I think that that was a little unfair to those who 165 work in Whitehall, because with virtually no exceptions they are the ones who will be covered by the Bill. It is people outside—local authorities, nationalised industries and so on—who will be beyond the scope of the Bill. The Civil Service realises that machinery of this kind will be a helpful factor in reinforcing confidence by the people in the integrity and fairness of our Administration.
Another thing that we have sought to do is to keep our proposals as informal as possible. We have not tried to lay down in the Bill a mass of detailed restrictions about the way in which this office shall work. We believe that this is a matter best left to the good sense of the House, no doubt operating through a Select Committee. We certainly do not think it right to try to set up the kind of elaborate and formal machinery which is contained in the proposals recently published by the Conservative Inns of Court Association, to which the right hon. and learned Member referred a moment ago. This would undermine the position of Members of Parliament in a way far beyond anything that could be alleged of our proposals. They would also be much more elaborate and costly and would require the services of a great many more civil servants and involve the citizen in more expense in invoking the procedure.
I will deal with as many as I can of the questions raised. I agree entirely with the right hon. and learned Member for St. Marylebone that this is an exeedingly difficult subject to get right. Those of us who have been concerned in formulating these proposals are well aware of that. We lay these proposals before the House with, I hope, a due spirit of humility. We believe that certain of the features which we have incorporated in the Bill are right, and I am reinforced in that belief by the reception which they have had tonight.
I assure the House, however, that in Committee we will certainly try to be as receptive as we can to the wishes of the House. I must make clear the limits beyond which we feel we cannot go, but within those limits we will try to meet the wishes of the House in any proposals which we think are realistic and practicable and can be shown to be such.
One of the questions asked is, why should the complaints to the Commissioner 166 be channelled through Members of Parliament? Why should not the citizen be allowed to complain direct? This, of course, stems directly from our whole conception of him as an officer of Parliament. If there were to be direct access, he would be in an entirely different position. We envisage his supplementing rather than supplanting hon. Members as protectors of the rights of individuals. We also attach considerable importance to hon. Members' acting as a screen from a lot of complaints which could be better dealt with by other methods and we believe that hon. Members, with their great experience of these matters, are best able to judge.
Some hon. Members thought that this would impose a most intolerable burden on hon. Members who would be under pressure from their constituents to refer everything to the Parliamentary Commissioner. We will see how it works out in practice. I do not believe that hon. Members are as pusillanimous as that. When they are clear in their own minds that a certain case is not an appropriate one for the Parliamentary Commissioner or think that it is something which they could take up more effectively and expeditiously with the Minister, they will do so. After all, owing to the nature of the investigations, the reference of a matter to the Parliamentary Commissioner is likely to take more time than one dealt with in some of the other traditional ways.
I was interested in the right hon. and learned Gentleman's suggestion that it might be necessary to develop some further screen. He was suggesting that the Select Committee, if we set it up, should be a screen and that hon. Members would have first to establish that they had exhausted all the other methods of inquiry before they invoked the Parliamentary Commissioner.
I doubt whether we want anything as rigid as that, but I suspect that, in time and with experience, and perhaps after we have seen the first annual Report of the Commissioner, he may have suggestions to make based on his practice and the Committee may have suggestions to make about what kind of approaches the House itself should adopt in order to see that we do not waste the Commissioner's time with irrelevant matters and make the best use we can of him——
§ Mr. Hogg
To do justice to what I was saying, the hon. and learned Gentleman should remember that what I suggested was coupled with the suggestion that many of the exclusions should be omitted, that is to say, that the sphere of the Commissioner should be enlarged to cover the whole field of grievance and that, of course, would be coupled with the Select Committee on Procedure.
§ Mr. MacDermot
I will turn now to that aspect, the other main line of criticisms, our attitude to which is dictated by other considerations, not by the load which we want to put on the Commissioner, but by what are the right activities to ask him to investigate.
Just before that I will deal briefly with the point raised about whether the Commissioner should have the power himself to initiate inquiries. We do not feel that we should impose this upon him. Essentially he is to be there as the protector of the individual, to take up the complaints of individuals, and if we start asking him to become a sort of prosecutor, as opposed to an investigator, this would affect his whole relationship with the Departments and with civil servants in a way which would not be desirable. It would also mean eliminating the right which the individual has at the moment to say, "I do not want my case taken up by the Parliamentary Commissioner. I prefer it to be dealt with by you direct with the Minister".
Having argued that the Parliamentary Commissioner was unnecessary and then that he would undermine the position of Members of Parliament, the right hon. and learned Member for St. Marylebone then elaborated that part of his argument which said that we did not go far enough. He began by dealing with the question of discretionary decisions, to which the right hon. and learned Gentleman devoted a large part of his speech in winding up the debate, and other hon. Members have also referred to it. Surely this is a simple and straightforward matter of principle. Do we want government by Government or do we want government by Commissioner? If we say, as we do in a mass of statutes, that we impose a discretionary power of decision upon a Minister which he will either exercise directly himself or exercise through his officials, do we want in all those cases to interpose a sort of right of 168 appeal to the Parliamentary Commissioner who can then investigate whether he thinks that the Minister, having considered the whole matter perfectly properly and perfectly fairly, and having taken account of all the relevant circumstances and dealt with the matter in a thoroughly judicial way, nevertheless has been wrong and that the decision ought to have been different.
Surely that is not what we want. It is not what we mean by maladministration. What we mean by maladministration is the earlier stage before the decision is taken—whether the way in which the point was reached at which a decision was taken was the way of proper administrative procedures or whether, by reason of indolence or bias or delay, or whatever it may be, the Minister or whoever the person was who took the decision, was not in a position to take a fair and proper decision.
In opening the debate my right hon. Friend sought to assist the House in defining maladministration largely in negative terms by stating what it did not cover. He indicated many kinds of error which he thought it would cover. I was asked to define more positively what we envisage by maladministration. I do not want to be limited to any definition, but I have found very helpful the phrase which Lord Denning used in the debate on the Franks Committee Report when he was asking for some authority to deal with this kind of case—what he calledthe third group of cases which may be described as the Crichel Down cases where there is no tribunal and no inquiry and the question raised is the abuse or misuse of power in the interests of the Department at the expense of the individual."—[OFFICIAL REPORT, House of Lords, Vol. 206, c. 575.]That definition would cover much of the kind of thing that we have in mind. It is not whether he arrives at the right decision but whether the powers which have been conferred upon a Minister and his subordinate officials has been abused or misused in a wrong and improper way. That is the kind of thing we have in mind. We all know from experience the kind of allegations which are made at times and which should and can be the subject of that kind of investigation. I have in mind a particular case which was raised by the hon. Member for Hendon, South (Sir H. Lucas-Tooth) of allegations 169 made against an official who came under one of our Departments in the Treasury. I could not investigate it personally. All I could do was to call upon a senior official of the Department to investigate and prepare a report, which I read very carefully, with the evidence. I was satisfied by the report. I had not had the advantage of seeing any of the witnesses or persons and all I could do was to assure the hon. Member that I was satisfied, and he had to take that assurance. That is the kind of case where I would have felt happier—as probably would the hon. Gentleman and his constituent—to have had an officer such as the Parliamentary Commissioner to whom that complaint could have been referred. It was, in effect, an allegation of personal bias in that case.
I come to some of the matters which have been raised during the debate and perhaps the main one, which has been the theme of many speeches, concerns local authorities. The decision not to extend the Bill to cover the actions of local authorities stems immediately from the decision that he is a Parliamentary Commissioner. I believe that, on reflection, hon. Members will realise that the kind of machinery we are proposing to set up would be wholly unsuitable for investigating the activities of local authorities.
The Commissioner will be reporting to a committee of this House. This House will then have power to investigate, to call for persons and papers and to summon officials. To consider summoning councillors about the way in which they are administering their local affairs would be out of the question. We need, if we feel that it is right and necessary to extend this kind of procedure to local authorities, to devise the proper machinery for them.
§ Mrs. Lena Jeger
Would my hon. and learned Friend not agree that a fair differentiation is to be made between local authorities acting permissively and local authorities carrying out the statutory duties laid on them in legislation passed by Parliament, for which there must ultimately surely be Parliamentary responsibility?
§ Mr. MacDermot
I do not agree. Nor is that distinction drawn when dealing 170 in this House with the question of Ministerial responsibility.
We are awaiting the results of the report of the Local Government Commission. It may be that, following that, we will get some reorganisation in the structure of local government and, in that context and in the light of the experience we will have gained from the Commissioner, it may be possible to devise a similar procedure for local authorities. I accept that this might need legislation, which, of course, we will be prepared to consider at the proper time. Meanwhile, it may be that some of the larger authorities which are in a position to experiment in this sphere earlier than others, will give thought to the matter and put forward proposals about the kind of machinery they would like set up.
A number of hon. Members referred to the position of the police. Again, the police are not controlled by the central Government, and this is the reason for their exclusion. I was asked about the Metropolitan Police. The Home Secretary has responsibilities in relation to them, and any action by him or his Department in the exercise of those responsibilities will come within the sphere of the Parliamentary Commissioner. However, the Home Secretary is still not responsible for individual complaints about the Metropolitan Police.
As for complaints generally against the police, I do not feel that this is a proper sphere, certainly at this stage, for us to consider extending the powers of the Parliamentary Commissioner. We have agreed under the Police Act, 1964, to set up a new complaints procedure, and I suggest that we should first see how that works out.
A number of hon. Members referred to the National Health Service. This is a difficult one which we will want to consider carefully. There are obviously many parts of the Health Service which could not be brought within the scope of the Commissioner. Some parts of it come directly under local authorities, and I do not imagine that we would want the Commissioner to intervene between, for example, the general practitioner and his patient. However, some of the hospital services will be within the scope of the Commissioner—hospitals administered directly by the Minister, such as 171 Broadmoor, Rampton and Moss Side—but to extend it to all the others would be going beyond the sphere of Government Departments.
The exclusion of nationalised industries follows the general principle that what we are concerned with here is the sphere of Government Departments. For the same sort of reasons that we exclude their day-to-day management questions from the responsibility of Ministers and from the answerability of Ministers, so I think we should from the scope of the activities of the Commissioner. The same principle applies to the exclusion in the Notes to Schedule 2 of part of the activities of the Post Office—those parts which will be hived off under the new procedure.
A number of points were raised on the question of contracts and commercial transactions, and I was asked to state the principle. The principle that underlies this is that we envisage the sphere of the Parliamentary Commissioner as being relations essentially between the Government and the governed. When dealing with commercial and contractual relationships between Government Departments and outside bodies we are not dealing with that relationship. They are making ordinary commercial decisions on commercial judgment, and in our view those kinds of decisions ought not to be subject to the views of the Commissioner. I have heard arguments today addressed to the rather narrower and particular point of allegations of favouritism and bias—not the ordinary kind of commercial discrimination, but some improper discrimination, perhaps for wrong motives. I am sure that we will want to look at that kind of point carefully in Committee, but that is the general principle underlying the exclusion.
Exclusion of personnel matters in paragraph 10 of Schedule 3 was referred to by a number of hon. Members. Again, the principle here is that what we are concerned with is the relationship between the Government and the citizen, the Government and the governed, and not the internal relations of employer and employee. [An HON. MEMBER: "Why not?"] We are asked: "Why not?" The question was put in different form. It was suggested by my hon. and 172 learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman): why should not civil servants be put in the same position as others? The answer is that we are doing precisely that, we are putting them in the same position; namely, that their relations with their employers will not be the subject of investigation by the Parliamentary Commissioner any more than any other employees' relationships.
May I point out in this connection that we have already a very well worked out and well tried system for investigating complaints within the Civil Service. The members of the staff side of the Whitley Council themselves do not want the Parliamentary Commissioner to intervene in this field, and that, possibly, is in itself a telling argument in favour of the decision we have taken.
§ Mr. MacDermot
The other half of this point on personnel matters relates to the Armed Services. Here, again, matters of internal discipline, internal relationships within the Armed Forces, are not matters of the relationship between Government and governed. When we are dealing with the impact of the Armed Forces on civilians outside, which can arise in a number of ways, the Ministry of Defence will be subject to investigation by the Commissioner as much as any one else. If it is thought that some further machinery is required for investigating complaints within the Armed Forces that, surely, is a matter to be taken up in the context of the Service debates and within the field of the Ministry of Defence. It is not a matter which falls within the general scope and principle of the Commissioner.
There are many other points that I have not been able to answer, and I look forward to what I hope will be as interesting and constructive a Committee stage to this Bill as our debate has been today. Meantime, I ask the House to give the Bill a Second Reading.
§ Question put, and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).