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Clause 5—(Matters Subject To Investigation)

Volume 739: debated on Tuesday 24 January 1967

The text on this page has been created from Hansard archive content, it may contain typographical errors.

Amendments made: No. 2, in page 3, line 21 after 'by' to insert 'or on behalf of'.

No. 3, in line 35 to leave out 'save at his discretion'.—[ Mr. MacDermot]

I beg to move Amendment No. 4, in page 3, line 43 at the end to insert:

Provided that the Commissioner may conduct an investigation notwithstanding that the person aggrieved has or had such a right or remedy if satisfied that in the particular circumstances it is not reasonable to expect him to resort or have resorted to it.
The Amendment arises from Amendments which were carried in Committee, in respect of which I then had a somewhat rough passage. The Amendments which were moved by two of my hon. Friends went rather far and gave the Parliamentary Commissioner the right to intervene at his discretion in cases where there was recourse either to a tribunal or a court of law. As originally drafted, the Bill excluded from the Parliamentary Commissioner's powers all cases where there was a recourse to a tribunal and cases where there was recourse to proceedings in a court of law, unless he was satisfied that in the circumstances it was not reasonable to expect the complainant to take, or have taken, proceedings in a court of law.

As the Bill now stands as a result of the Amendment in Committee, its effect is that the Parliamentary Commissioner could even investigate a case which had been heard and decided upon in a court of law and could in effect be called upon to act as a court of appeal following a decision of a properly constituted court of the land. I do not think that that position can possibly be accepted.

Therefore, we have put down this Amendment, which restores to the Commissioner the guidance which the Bill originally gave him about the kind of case in which it was proper for him to intervene, that is to say, that if he was satisfied that in the particular case it was not reasonable to except the complainant to have pursued his alternative remedies. But we have accepted the decision of the Committee that this discretion should exist in relation both to tribunals and courts of law.

I need not weary the House by repeating the argument on why we originally sought to draw that distinction. One of the factors that influenced us was that we were anxious that there should not be any occasion for a clash between the Parliamentary Commissioner and the Council on Tribunals. I undertook to the Committee to consult the Secretary to the Council as to whether it would see any objection to this extension. We are informed that the Council would have no objection to the provision, and we are accordingly putting forward the Amendment in this way.

The result will be that where a person has an alternative remedy, whether to a tribunal or a court of law, that will not be an absolute bar to his case being investigated by the Commissioner, who will have a discretion in such cases as to whether or not to investigate. If he thinks that the case should more properly be dealt with by the alternative proceedings he will say so and, in the exercise of his discretion, will refuse to investigate. But if he is satisfied that there are good reasons why the complainant should not have recourse to those other remedies he will then be able to act.

I hope that this will meet the substance of the argument put forward in Committee.

8.30 p.m.

I should first like to express my disappointment with the Government's decision to delete these words. We had a very full discussion about this matter in Committee when no one accepted the position taken up by the Financial Secretary. Even when there was not full agreement with the Amendment then proposed, there was dissatisfaction with his attitude.

My hon. and learned Friend has endeavoured to meet the objection by this Amendment. There is some advance, but it is not enough. The provision gives the Parliamentary Commisioner the right to intervene in a case when he is satisfied that it is not reasonable to expect the person aggrieved to resort or have resorted to a tribunal, court of appeal, or whatever it may be. There is no right where the matter has already been dealt with by a tribunal or court. It is only when the person concerned could have resorted to it, or might resort to it.

This seriously circumscribes the Parliamentary Commissioner's power and I would have thought that it was very much simpler to have said that where there were particular circumstances, it was right for the Parliamentary Commissioner to intervene. I fully agree that it would be wrong to constitute the Commissioner as an appeal court from the tribunal or court which hears the case, but there must be circumstances—and they were cited in Committee—when there are borderline cases when, in special circumstances, it could be left to the good sense of the Parliamentary Commissioner to deal with the matter.

I would have been more satisfied if my hon. and learned Friend's interpretation of the powers of the Commissioner had been right. I quoted a certain case to him and he replied:
"But he tells the Committee…that on the matters that he has considered, the case is so strong that he feels sure there must have been some error somewhere. All I can say to him is that if he were able to convince the Parliamentary Commissioner of the fact, if he could establish a prima facie case to the same extent, that this was a case which cried out for investigation—then, within his discretion, the Parliamentary Commissioner would be able to look into the matter and investigate it".
He went on to say:
"There is a possible administrative complaint which legitimately he could investigate. Is it being said, 'I am not complaining about the decision of the tribunal. What I am complaining about is that the administrative action of the Department was at fault, in failing to lay before the tribunal properly the information which it, the Department, had and which it alone had'. If that is what the allegation is, then, as I have said, that is a matter which can be investigated."—[OFFICIAL REPORT, Standing Committee B, 8th November, 1966; c. 160–2.]
I said that I would be very much more satisfied if I felt that the Financial Secretary's interpretation was correct, but as I read the words I think that in such a case the Commissioner would be bound to say that he was debarred under Clause 5(2,a), because it was an action in which the person aggrieved had a right of appeal to a tribunal or court. It is doubtful whether that interpretation is right.

Surely the proper thing is to try to clarify the position by inserting words which make it clear that the view which my hon. and learned Friend is putting forward is right. I can only express the hope that between now and discussion in another place he will look at the matter again to see whether he cannot clarify the provision by some further words.

I rise only to ask the Financial Secretary one question. I am glad that he has proposed the Amendment for I think that it is an improvement. It says that the Commissioner may conduct an investigation

"if satisfied that in the particular circumstances it is not reasonable…"
I take that to mean that the Parliamentary Commissioner alone is the judge of what is or is not reasonable in such circumstances and that he may not be challenged on that and will not normall be expected even to give a reason. I think that that is most desirable, but I should like to have it officially stated.

I am grateful for the crumbs which fall from the master's table, even if rarely. This Amendment is a great improvement and I congratulate the Financial Secretary on introducing it. I gather that he knows—and I gather that this is the view of the House—that it excludes from consideration any grievance arising before the date on which the Bill comes into force. I read it like that. I wish that my hon. and learned Friend would say who is a person who

"has or had a remedy"
which he has failed to pursue. The trouble is that a grievance may arise the day before. This may be a matter for experts. I never call myself a draftsman.

The second problem which arises is: what is an unexhausted remedy, how does one know what remedies one has and what remedies are within reasonable power? I know that the question of the former Ministry of Pensions and National Insurance is excluded from the Measure, and there are powerful reasons for it, because, if it were not, the Commissioner would have about 50,000 more cases to deal with almost at once, some genuine, some far from genuine.

May I quote a purely legal example from the Ministry to exemplify the point. It concerns a case reported in The Times ten days before Christmas on a decision of the House of Lords. The House of Lords, by a majority, affirmed the decision arrived at by the Court of Appeal, by a majority, which reversed the Divisional Court, which supported the Commissioner of National Insurance in deciding that the decision of the medical appeal tribunal supporting the medical referee and disagreeing on a point of fact with a previous decision of a commissioner which reversed the previous medical referee in agreeing with the medical report. This was an appeal to the House of Lords by the Minister which was lost. I could ask a few questions about the cost of it when I have a little time free.

Who could have advised that lady about Mr. William Charles Crocker, who is very famous for some of his admirable legislative activities, that the applicant had not exhausted his right until he had been before four medical tribunals, two independent commissioners, two judges of the Divisional Court, three judges in the Court of Appeal and five judges in the House of Lords on an issue under an Act by which I was told, on the day I made my maiden speech, that we were cutting all the lawyers out and not having any more nonsense about going to the county court and getting a decision?

I sit once a month in Oldham. People still think that I am a solicitor. I keep telling them I am not and the Chancery Division have said that I am not for Income Tax reasons. Day by day problems are postulated as to what are people's rights. When I get in a mess, I send them to the citizens advice bureau. Who knows the answer to these questions under this highly complex régime? How is the Commissioner always to be able to get a determination?

If I have the privilege of catching your eye, Mr. Deputy Speaker, or Mr. Speaker's eye on Friday, I hope to develop a wholly different matter. Recently, on an urgent point of Customs duty, a man was asked for £30 by Thomas Cook and Son Limited in respect of a wedding gift valued at £29 10s. I approached the Board of Trade which said "There is tax involved. You should approach the Treasury". So I approached both of them and the Treasury said that it would look into the matter. I put down a Question about the tax and the Treasury said that it was looking into it. At the precise moment when it looked as though somebody might say something, a brilliant genius in the Civil Service said, "But you used Thomas Cook. They are a nationalised industry. This is a matter for the Ministry of Transport". My constituent, the nicest of men, was very grateful in the end—

Order. I am having some difficulty in relating what the hon. Gentleman is saying to the Amendment. Would he kindly indicate how it relates to the Amendment?

I do not think I should like to reply to that challenge precisely or to go into a dissertation in the strict terms of the Amendment. I thought that I was rendering a service to the House by delivering two speeches at once and as briefly as I could. I shall not therefore rise again when anything is called for discussion which will make these observations relevant.

With the leave of the House to speak again, my hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman), I think in his disappointment at the form of this Amendment, was really repeating a point of view which he expressed in Committee, which is that he would really like the Parliamentary Commissioner have power to act as a court of appeal from tribunals. With great respect to my hon. and learned Friend, I do not think this would be a workable system. We have a system of tribunals, and in some cases machinery of appeal from them, and there are supervisory powers and supervisory courts, and also we have the Council on Tribunals, from another point of view, supervising the work of those tribunals. I think, therefore, that there would be no end to this system if a disappointed complainant could at any time have yet a further stage and have his complaint heard and investigated by the Parliamentary Commissioner.

His second question, on which he quoted some words of mine in Committee, related to a much narrower point. We were imagining the situation where there was before a tribunal a case in which the facts were peculiarly in the knowledge of the Department, as frequently they will be, where the case had been heard and decided by the tribunal against the complainant, perfectly properly decided on evidence presented, and then information came to light to indicate, for example, that the Department in error had omitted to lay before the tribunal some very relevant material—some medical reports, whatever it might be.

I do not want to lay down the law for all cases, but certainly I think that in some such cases there would be no way to get a case reopened by the tribunal; it would not be a matter which could be the subject of an appeal to the tribunal itself. If that is so then it would not be excluded by the words of Clause 5(2,a), and accordingly the point that I was making was that in those circumstances that failure of the Department to lay the proper facts before the tribunal could be the subject of complaint on an administrative act by the Department. It would be a wholly exceptional case. This is a very fine point, but I was seeking to try to draw a distinction between the Commissioner acting as an appellate tribunal from the court itself or from the tribunal itself and as investigating some administrative failure in the steps leading up to the actual proceedings by the court.

As to the other two points on which I was asked to give an answer, the hon. Member for Hendon, South (Sir H. Lucas-Tooth) asked whether I would confirm that the wording of the Amendment means that it would be solely for the Parliamentary Commissioner to decide whether in the circumstances it was reasonable for the complainant not to have pursued the alternative remedy. I do give that assurance: it would be entirely within his own discretion to decide.

Finally, my hon. Friend the Member for Oldham, West (Mr. Hale) suggested that the Commissioner would only be investigating matters arising out of cases occurring after the date of the passing of the Bill. I think that if he looks at Clause 6(3) he will see that that is not the case.

Amendment agreed to.

I beg to move Amendment No. 5, in page 4, line 4, at the end to insert:

(4) Nothing in this section shall be construed as authorising or requiring the Commissioner to review by way of appeal any decison taken by a government department or other authority in the exercise of a discretion vested in that department or authority.
This Amendment is largely a drafting matter and seeks to overcome the criticism that was made both on Second Reading and in Committee that the Bill as drafted does nowhere in terms exclude the discretionary decisions from the scope of the Parliamentary Commissioner's powers. We take the view that this is inherent in the word "maladministration" itself, but as there was obviously wide feeling among hon. Members on both sides that it was desirable to make this explicit, we propose adding these words which, we believe, will achieve that object. Perhaps the only point on the wording on which I might comment is the use of the words "by way of appeal". We have said that
"Nothing in this section shall be construed as authorising or requiring the Commissioner to review by way of appeal any decision"—
in effect, in exercise of a discretionary power. The reason why we put that in is that we do not want this Amendment to be limiting. As was made clear by my right hon. Friend the Lord President in moving the Second Reading, there are matters in relation to discretionary decisions which will be within the scope of the Parliamentary Commissioner. I can sum it up by calling them matters where the complaint is that the proper administrative procedures were not followed before the stage was reached when the discretionary decision had to be taken. We do not wish to exclude that. The intention of the Amendment and, I believe, its effect is that the Parliamentary Commissioner will be free to investigate all matters of administration —everything, in effect, except a discretionary decision itself.

8.45 p.m.

This is a very important Amendment, although the Financial Secretary may say that it is only a drafting one. It goes to the very root of what the Bill is intended to do. By its wording, as I read it and as the courts and the Commissioner would be bound to read it, if we remove all right of investigation into any matter concerning a Government Department or other authority which is exercising a discretion vested in that Department or authority, we impose a very heavy limitation upon the capacity of the Parliamentary Commissioner to protect the citizen and give him a remedy when a really silly decision has been made.

The Financial Secretary has said that one can look at the procedural background to the discretionary decision, but it is a little difficult—as anyone who has ever administered a Department knows—to distinguish between what is the administrative background and what is a discretion. There is a discretionary element in the way in which any Department is run.

Everyone knows that within each Department there are certain rules and regulations about what is done or not done, and the Minister decides that he will or will not in particular circumstances seek the advice of some other authority. Of course, that is a discretionary decision on his part and, to some extent, a policy decision on the way in which he will run his Department. Therefore, the whole of the preliminary machinery which any Government Department goes through before the actual final decision is taken is, of itself, part of the exercise of administrative discretions by the Minister.

I have always thought that this provision in the Clause would emasculate the Bill. It will leave practically no circumstances in which a Minister will not be able to say, "I took that decision because I had the choice of consulting A or consulting a large class of people. I took that decision and, as a matter of fact, in this Department we never bother to ask the other Departments about questions of this sort. This is something that I have decided, and you, the ombudsman, are not entitled to investigate the matter."

The words, "in the exercise of a discretion" could not be wider. A discretion means no more than liberty of choice. It means, according to the Oxford Dictionary, "The liberty of deciding as one thinks fit, absolutely or within limits". It also means something which is "to be settled or disposed of by the wish of" the individual.

Pretty well everything within a Department is disposed of on the wish of the Minister and on each and every occasion when the ombudsman asks him, "Why did not you do this, that or the other", or asks why this or that step was not taken, the answer will be, "Because we decided that in cases of this sort we would not do that".

I have always thought that the key to the position of the Parliamentary Commissioner was the extent to which he could look at the administrative decisions of a Department, both the internal administrative decisions and the decisions affecting the citizen. Unless he can do both, the citizen will be wholly deprived of any benefit of an investigation by the ombudsman. Only where the Minister is under an obligation to take a particular decision and, therefore, has no discretion himself will the ombudsman be able to complain. In any other case, if there is a choice of courses of action, the Minister can say, "This was my decision. You cannot look at that and there can be no investigation by you, the ombudsman".

I appreciate the Government's desire to shield all Ministers and civil servants from the investigation of the ombudsman in any circumstances where it can be said that the Minister had any responsibility. I quite see that that is the basis upon which the Government are proceeding, but the result of their taking that attitude is that the ombudsman will be almost totally excluded from the files of Government Departments. The result of that attitude and this Amendment is that the Government are now seen to be thinking that discretion is the better part of valour and they are running clean away from the ombudsman.

This is not a drafting Amendment. It goes to the heart of the whole Bill. I recall the words of the Lord President of the Council on Second Reading:

"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 AuditorGeneral—this knowledge should surely put heart into those back benchers who feel they count for not much more than Lobby fodder."—[OFFICIAL REPORT, 18th October, 1966; Vol. 734, c. 43.]
Those words certainly put some heart into this back bencher. Foolishly, I sup-B, pose, we imagined that this brave new Bill would be a step forward and would give us greater power to control the Executive. No one knows better than the right hon. Gentleman how powerful Ministers can be. He was a very powerful Minister himself. He knows also—he has said it often—how weak Parliament is and how largely ineffective are our powers as Members to undertake detailed criticism.

I had hoped, as many hon. Members on both sides did, that the Bill would be a real step forward to alter that situation. It is nothing of the kind. Moreover, if this Amendment, described so innocently as a drafting Amendment, is accepted, it will be the final nail in the coffin of the Bill.

On this Amendment, Parliament has to take a very important decision, a decision fundamental to the whole Bill. Are we to take the narrow view and restrict the powers of the Parliamentary Commissioner to cases in which the Minister has no discretion at all? Is that the object? It seems to be the Government's view now, although it was not their view at the time of the Standing Committee. In Committee, the Financial Secretary said:
"We do not want to exclude from his activities anything which relates to discretionary decisions, because we may get what are true faults of administration, leading up to a discretionary decision, with the result that when the decision was taken it was affected by a fault of administration. In other words, one can fault the manner in which it was taken."
It is worth reading the whole passage because this is such an important matter. The hon. and learned Gentleman went on:
"The hon. Member for Kensington, South, in moving his Amendment, gave some instances of the kind of thing he had in mind —that the person who made the decision had not all the relevant material before him, that some relevant evidence which ought to have been drawn to his attention was not, by the neglect or obtuseness of someone who ought to have laid that evidence before him, or that he based his decision on irrelevant matter, on irrelevant evidence. Now, if this can be shown, if this is the complaint, this is a matter to be investigated, as we conceive it, by the Parliamentary Commissioner for Administration, because he is looking to see whether the proper administrative process has been carried Out."—[OFFICIAL REPORT, Standing Committee 1st November, 1966; c. 69.]
That was the argument put forward by the Financial Secretary, and it seemed a wholly good one at the time. Now he is putting forward a very much narrower interpretation of the powers. The alternative is to take the bolder course and rely simply on the exclusion provided in subsections (2,a) and (b) of this Clause.

The cases which usually come to hon. Members concern planning decisions, because these are the ones which worry people most. Their livelihoods are affected by them, and yet these are the very cases in which we are utterly powerless to assist. A citizen applies for planning permission to build, say, a bungalow. The R.D.C. turns down his application. He appeals, and waits for five months. His appeal is then heard, and he waits another five months before the gets the result of the appeal. He learns that his appeal has been turned down, and he comes to see us. We then write to the Minister. I have done this on many occasions, as I expect most hon. Members have. We write to the Minister asking him to reconsider the appeal, and we get the same reply each time, "There is no power to look at the matter again".

Rightly or wrongly the constituent feels that he has a genuine grievance, that somewhere along the line there has been a failure by the Minister to act in a proper way. It may be said that in those circumstances he has recourse to the courts, but, as the right hon. Gentleman said during the debate, this is a very cumbersome and expensive procedure, and these appeals do not go to the courts except in very few instances. The people affected live with their bitterness for the rest of their lives.

The more I think about the Financial Secretary's speech, the more I am puzzled about the Government's attitude to this matter, and I am certain that many people outside the House will be equally puzzled. I feel that if the Amendment is accepted it will undermine the very purpose of the Bill, and I am surprised that the right hon. Gentleman, who is an enthusiastic—

All that the Amendment seeks to do is to make explicit the interpretation of the Bill which my right hon. Friend gave during the Second Reading debate and which was, inciden- tally, supported by a number of hon. Gentleman opposite in Committee. Indeed, I think that it puts into other words an Amendment proposed by the hon. Member for Hendon, South (Sir H. Lucas-Tooth).

I realise that the hon. and learned Gentleman takes that view, but that was not the view taken by my right hon. Friend. The Amendment says:

"Nothing in this section shall be construed as authorising or requiring the Commissioner to review by way of appeal any decision taken by a government department…"
It says that nothing in this Section authorises the Commissioner to look at any decision.

The hon. Gentleman must read the whole Amendment. It refers to

"any decision…taken in the exercise of a discretion vested in that department or authority".

That does not weaken my point. I am certain that there are many hon. Members on this side of the House, and perhaps on the other side, too, who are anxious about this. We will emasculate the Bill if we take away from the Parliamentary Commissioner the right to look at the exercise of a discretion by a Minister.

It is not true to say that we would emasculate the Bill, because in the speech to which the hon. Gentleman referred I made it clear that discretionary decisions, as the Whyatt Committee recommended, were excluded from the Bill. I said:

"Discretionary decision, properly exercised, which the complainant dislikes but cannot fault the manner in which it was taken, is excluded by the Clause."—[OFFICIAL REPORT, 18th October, 1966; Vol. 734, c. 51.]
9.0 p.m.

After considerable discussion on this matter—in which we considered whether or not this was the proper thing to do —we made it clear, in Committee and on Second Reading, that this was the interpretation. The Amendment does not alter anything but merely makes unambiguous what we candidly told hon. Members was the way we should deal with the issue. We have accepted the Whyatt Report, which suggested that it should be dealt with in this way, and it is, therefore, unfair to say that it is being written into the Bill by this small Amendment.

I am a solicitor and not a lawyer. The difficulty is that although this matter may have been fully argued and discussed—with undertakings and assurances given in Committee and on Second Reading—we must deal with the Bill as it appears before us. I may have got the wrong end of the argument, but as I see it—not as a lawyer—the Amendment does not have the purpose which the Financial Secretary is arguing it does have. I do not believe that it is a drafting Amendment. I have come to that decision having studied it carefully and I trust, therefore, that the Government will not pursue this Amendment.

I am opposed to the Amendment on narrower grounds than those adduced by the hon. Member for Chippenham (Mr. Awdry). Whenever the ombudsman starts investigating a case, the Amendment could be immediately used as a shield by civil servants, who could say, "We are exercising our discretion", and many weeks would go by while the matter is being considered. In his intervention, the Leader of the House referred to his speech in Committee. I did not find the position enhanced by what he said about a discretionary decision being properly arrived at.

Suppose it is exercised on wrong or erroneous grounds. We are concerned here with administrative injustice or injustice suffered as a result of maladministration. One of the things the ombudsman should be entitled to investigate is a discretionary decision vested in a Department which has been arrived at through a completely erroneous process. Suppose a decision has been arrived at through a mistake which could be put right. Is the ombudsman to be excluded from considering that?

I am using the term which is in common use. In all the discussions before the Bill was introduced he was known as an ombudsman. In any case, it would be wrong for the Government to persist with the Amendment in the face of such criticism. If the Financial Secretary considers that the Amendment is not really necessary, it should be left out because the view is widely held that it will circumscribe the powers of the Parliamentary Commissioner and provide a shield behind which civil servants will be able to hide for many weeks.

I regret that I was not a member of the Standing Committee. However, I have taken a great interest in the subject for a long time and, despite the attitude of the Leader of the House, I apprehend that we are entitled to discuss this matter at such length as we think proper.

I cannot help being worried about this matter because we have for nearly two years been pointing out that the ambit of jurisdiction of the Parliamentary Commissioner should be seriously considered. In September 1964, a statement was published in the New Stateman by the present Foreign Secretary in which he said what it was intended that the Parliamentary Commissioner would be able to investigate. He stated:
"The Commissioner will he concerned with those episodes where all the authorities have behaved correctly, yet the result is absurd or unjust."
That right hon. Gentleman, for whom we have the greatest respect and who takes a keen interest in the rights of the individual, did not talk about "maladministration". He did not use any ambiguous language of that kind. He made it clear that if there had been an injustice it would be the job of the Labour Government's great Parliamentary Commissioner to right it. Since then we have been plunging in this morass of the expression "maladministration".

Although I was not a member of the Standing Committee, I have read the OFFICIAL REPORT of the whole of the proceedings and I have found that there was intense discussion about the word "maladministration" and its repercussions in relation to discretion. We have been left in a great state of uncertainty. I share the fear of my hon. Friend the Member for Chippenham (Mr. Awdry) that the Amendment—although I accept that it is not intended to do this—might have the effect, and I believe it will, of creating a danger that the whole value of this system will be vitiated.

Almost every decision that causes real hardship is a decision taken in the exercise of a Ministerial discretion. Sooner or later, somebody will have to decide whether or not it comes within the jurisdiction of the Parliamentary Commissioner. I do not think it could go to the courts and we may assume that the Parliamentary Commissioner will act in a judicial capacity. There is grave danger that, if we accept an Amendment like this, the Parliamentary Commissioner will take a narrow view of his duties. In reading what was said in Committee, I was astonished to find that on more than one occasion the reason given for not accepting Amendments was that to do so would overburden the Parliamentary Commissioner. In the case, for example, of the National Health Service, the reason given was not that he ought to be able to consider it, but that he would be overburdened. This great public benefit produced by the right hon. Gentleman and his friends to enable grievances to be alleviated is to be withheld because there would be too many complaints. What an astonishing thing. The Amendment, as I read it, would cut that down very much indeed.

Time after time one hears the argument that the Minister in question had discretion and had the facts before him. Nobody suggests that he acted dishonestly or had improper evidence. He made his decision in the exercise of his discretion. The boundary of maladministration is a very difficult one to determine.

I feel great anxiety about the acceptance of the Amendment. I acquit the right hon. Gentleman of the intention to do what I have suggested might happen, but surely this is the moment when we should be entitled to deal with these things.

I end where I began. I was a little disturbed to find that when somebody got up and presented a logical and new argument the right hon. Gentleman said that this was all decided on Second Reading. These things are not decided on Second Reading. They are decided when the House of Commons finally expresses its opinion, and that is this evening.

The Amendment proves the critics right when they said that in the production of the Bill the Government had gone back on their promise to the electorate. Clearly, the Amendment shows that from the very beginning the Government had no intention of giving us an effective Parliamentary Commissioner, the Ombudsman as he was called at the General Election by the Government.

Almost the whole of the Bill will be pretty useless if the Amendment is passed. It would be interesting to know what the Parliamentary Commissioner would think about this and about his job if the Amendment is passed, because he will be in an awkward position to be told by any Minister or Ministry that they were only exercising their discretion—and that would apply not only to a Government Department, but to any authority. Those are the words of the Amendment. All the criticism which has been levelled from this side tonight will be amply justified if the Amendment is passed.

I cannot think why the Lord President of the Council puts up the argument that as a defence of the Amendment he has to say, "I told you so". Of course, he told us that this was his intention. We still say, however, that it makes nonsense of the Bill. I hope that the Government will have the decency to withdraw it.

When I was at my first school, we had a rather jolly schoolboy expression for "swindle". We called it "swiz". A swiz was not something which involved any particular moral turpitude on the part of those who were guilty of the swiz but meant that those who were the victims of the swiz somehow felt with justification that they had been swindled.

As the House knows from my speech on Second Reading, I have always regarded the ombudsman as a swiz. Now we have arrived at the moment of truth. We were told originally, in a very grandiloquent speech by the Leader of the House, that the ombudsman would deal with maladministration. We have never really been told what maladministration is. It may be that some esoteric ritual inside the Civil Service has not been observed. I do not regard that as maladministration. If Government policy is involved and injustice is suffered thereby.

we know that maladministration is not Government policy. If it requires legislation to put it right, that is not maladministration. I told the House on Second Reading that it excluded discretion, and I had the powerful support of the Lord President of the Council. The ghastly fact is that when that is excluded, nothing is left except a swiz. We on this side always knew that the whole thing was a swiz, but that was not spelt into the Bill. It did not write down in so many words in a Schedule, "This is a swiz".

The Financial Secretary has described the Amendment as a drafting Amendment. Despite what has been said by one of my hon. Friends, I agree that it is a drafting Amendment. The Bill was always drafted to be a swiz, and now it is spelt into the Bill. I shall vote against it.

The right hon. and learned Member for St. Marylebone (Mr. Hogg) was a Member of a Government which considered the proposals upon which the Bill is based. They were proposals made in the Whyatt Report published by Justice. [Interruption.] The right hon. Gentleman says sotto voce that they were rejected. They were not rejected as being a swiz. Those proposals contained the important principle that the Parliamentary Commissioner should not act as a court of appeal to review every discretionary decision which was made in the course of Government.

It was realised in those proposals, and the reasons were fully set out, why it would not be a workable system if it was sought to give that power to the Parliamentary Commissioner. The right hon. and learned Gentleman suggests that denuded of that power, the Parliamentary Commissioner is a swiz. That was not what his Government said when they rejected the idea. They did not say "We reject this because it would be a waste of time. We reject this because he would be a useless cipher if he did not have

Division No. 251.]


[9.17 p.m.

Albu, AustenBoardman, H.Cant, R. B.
Anderson, DonaldBooth, AlbertCarmichael, Neil
Archer, PeterBoyden, JamesCarter-Jones, Lewis
Atkins, Ronald (Preston, N.)Braddock, Mrs. E. M.Coe, Denis
Bagier, Gordon A. T.Brooks, EdwinColeman, Donald
Bence, CyrilBrown, Hugh D. (G'gow, Provan)Concannon, J. D.
Bidwell, SydneyBrown, Bob (N'c'tle-upon-Tyne, W)Corbet, Mrs. Freda
Binns, JohnBuchan, NormanCraddock, George (Bradford, S.)
Blackburn, F.Butler, Herbert (Hackney, C.)Crawshaw, Richard

Power to investigate discretionary decisions".

9.15 p.m.

The first objection and the first reason given by the Tory Administration for rejecting it was that the setting-up of a Parliamentary Commissioner—it was specifically related to the Justice proposals—would seriously interfere with the prompt and efficient dispatch of public business. In other words, the Conservative Government considered that such powers as we propose in the Bill should be given to the Commissioner would hold up the whole machinery of government. That was their first and major reason for rejecting it. That is the meaningless swiz, apparently. It is remarkable how right hon. and hon. Members opposite change their tune when they go from government into opposition.

I am grateful to the right hon. and learned Gentleman for endorsing what I said at the outset, that this is a drafting Amendment. This is purely making clear and explicit that which we have said from the very outset was implicit in the Bill and was the scope of the Bill. A number of hon. Members opposite who have given careful thought to this have taken the same view as we have. I respect the attitude of those who, like the right hon. and learned Member for Chertsey (Sir L. Heald), take a different view and would like to see the Commissioner act as an appellate court over all discretionary decision. If the Commissioner were to have that power, it would require an enormous addition to his staff for him to be able to review the whole field of discretionary decisions in government. I suggest that that would be unworkable and would bring the whole scheme into disrepute. For these reasons, I urge the House to accept the Amendment.

Question put, That those words be there inserted in the Bill:—

The House divided: Ayes 156, Noes 92.

Crossman, Rt. Hn. RichardJanner, Sir BarnettPentland, Norman
Dalyell, TamJeger, Mrs. Lena (H'b'n & St. P'cras, S.)Perry, George H. (Nottingham, S.)
Davidson, Arthur (Accrington)Johnson, Carol (Lewisham, S.)Price, Thomas (Westhoughton)
Davies, Harold (Leek)Jones, Dan (Burnley)Price, William (Rugby)
Davies, Robert (Cambridge)Jones, Ht. Hn. Sir Elwyn (W. Ham, S.)Probert, Arthur
Dewar, DonaldJones, J. Idwal (Wrexham)Randall, Harry
Dobson, RayLawson, GeorgeReynolds, G. W.
Doig, PeterLestor, Miss JoanRhodes, Geoffrey
Dunwoody, Mrs. Gwyneth (Exeter)Lewis, Ron. (Carlisle)Richard, Ivor
Dunwoody, Dr. John (F'th & C'b'e)Loughlin, CharlesRoberts, Albert (Normanton)
Eadie, AlexLuard, EvanRobertson, John (Paisley)
Edwards, Rt. Hn. Ness (Caerphilly)Lyon, Alexander W. (York)Robinson, W. O. J. (Waith'stow, E.)
Edwards, William (Merioneth)Lyons, Edward (Bradford, E.)Rogers, George (Kensington, N.)
Ellis, JohnMcBride, NeilRose, Paul
Ensor, DavidMcCann, JohnRoss, Rt. Hn. William
Evans, Albert (Islington, S.W.)MacDermot, NiallRowlands, E. (Cardiff, N.)
Finch, HaroldMacdonald, A. H.Ryan, John
Fletcher, Raymond (Ilkeston)McGuire, MichaelShore, Peter (Stepney)
Fletcher, Ted (Darlington)Mackintosh, John P.Short, Rt. Hn. Edward (N'c'tle-u-Tyne)
Foley, MauriceMaclennan, RobertSilkin, Rt. Hn. John
Ford, BenMcMillan, Tom (Glasgow, C.)Slater, Joseph
Forrester, JohnMcNamara, J. KevinSmall, William
Fowler, GerryMacPherson, MalcolmSnow, Julian
Gordon Walker, Rt. Hn. P. C.Mallalieu, J.P.W.(Huddersfield, E.)Spriggs, Leslie
Gray, Dr. Hugh (Yarmouth)Mapp, CharlesStewart, Rt. Hn. Michael
Gregory, ArnoldMarquand, DavidSwingier, Stephen
Grey, Charles (Durham)Mason, RoySymonds, J. B.
Griffiths, David (Rother Valley)Mayhew, ChristopherTinn, James
Hale, Leslie (Oldham, W.)Milne, Edward (Blyth)Tuck, Raphael
Hamilton, James (Bothwell)Mitchell, R. C. (S'th'pton, Test)Urwin, T. W.
Harper, JosephMolloy, WilliamVarley, Eric G.
Harrison, Walter (Wakefield)Moyle, RolandWainwright, Edwin (Dearne Valley)
Haseldine, NormanMurray, AlbertWalker, Harold (Doncaster)
Henig, StanleyNeal, HaroldWatkins, David (Consett)
Herbison, Rt. Hn. MargaretNorwood, ChristopherWells, William (Walsall, N.)
Hilton, W. S.Ogden, EricWhitaker, Ben
Houghton, Rt. Hn. DouglasO'Malley, BrianWhitlock, William
Howarth, Robert (Bolton, E.)Oram, Albert E.Wilkins, W. A.
Howell, Denis (Small Heath)Oswald, ThomasWinnick, David
Howie, W.Owen, Dr. David (Plymouth, S'tn)Woodburn, Rt. Hn. A.
Hughes, Roy (Newport)Palmer, Arthur
Hunter, AdamPark, TrevorTELLERS FOR THE AYES:
Hynd, JohnParkyn, Brian (Bedford)Mr. Armstrong and
Irvine, A. J. (Edge Hill)Pavitt, LaurenceMr. Ioan L. Evans.


Alison, Michael (Barkston Ash)Harrison, Col. Sir Harwood (Eye)Onslow, Cranley
Allason, James (Hemel Hempstead)Hawkins, PaulOsborne, Sir Cyril (Louth)
Awdry, DanielHeald, Rt. Hn. Sir LionelPage, John (Harrow, W.)
Baker, W. H. K.Hobson, Rt. Hn. Sir JohnPardoe, John
Batsford BrianHogg, Rt. Hn. QuintinPercival, Ian
Black, Sir CyrilHolland, PhillpPink, R. Bonner
Brinton, Sir TattonHooson, EmlynPym, Francis
BuchananSmith, Alick (Angus, N&M)Hordern, PeterRamsden, Rt. Hn. James
Buck, Antony (Colchester)Howell, David (Guildford)Ridley, Hn. Nicholas
Bullus, Sir EricHunt, JohnRoots, William
Campbell, GordonHutchison, Michael ClarkRossi, Hugh (Hornsey)
Clark, HenryIrvine, Bryant Godman (Rye)Scott, Nicholas
Clegg, WalterJohnson Smith, G. (E. Grinstead)Sharples, Richard
Cooke, RobertJohnston, Russell (Inverness)Sinclair, Sir George
Cordle, JohnKing, Evelyn (Dorset, S.)Stainton Keith
Dalkeith, Earl ofKitson, TimothySteel, David (Roxburgh)
Dance, JamesLongden, GilbertSummers, Sir Spencer
d'Avigdor-Goldsmid, Sir HenryLubbock, EricTaylor, Edward M.(G'gow, Cathcart)
Dean, Paul (Somerset, N.)McAdden, Sir StephenTaylor, Frank (Moss Side)
Deedes, Rt. Hn. W. F. (Ashford)Mackenzie, Alasdair (Ross&Crom'ty)Turton, Rt. Hn. R. H.
Elliot, Capt. Walter (Carshalton)Maddan, MartinVickers, Dame Joan
Fortescue, TimMawby, RayWeatherill, Bernard
Gilmour, Sir John (Fife, E.)Maxwell-Hyslop, R. J.Whitelaw, Rt. Hn. William
Glover, Sir DouglasMills, Peter (Torrington)Wills, Sir Gerald (Bridgwater)
Glyn, Sir RichardMiscampbell, NormanWilson, Geoffrey (Truro)
Gower, RaymondMonro, HectorWinstanley, Dr. M. P.
Grant, AnthonyMorgan, Geraint (Denbigh)Wolrige-Gordon, Patrick
Grant-Ferris, R.Munro-Lucas-Tooth, Sir HughWylie, N. R.
Gresham Cooke, R.Murton, Oscar
Grieve, PercyNabarro, Sir GeraldTELLERS FOR THE NOES
Gurden, HaroldNeave, AireyMr. Eyre and Mr. More.
Harris, Frederic (Croydon, N.W.)Nott, John

I beg to move Amendment No. 6, in page 4, line 4, at the end to insert:

(4) Her Majesty may by Order in Council amend the said Schedule 3 so as to exclude from the provisions of that Schedule such actions or matters as may be described in the Order; and any statutory instrument made by virtue of this subsection shall be subject to annulment in pursuance of a resolution of either House of Parliament.
I hope that we shall find that hon. Members opposite, who were so moved and so stirred by their anxieties about the Bill being narrowed and made ineffective, will applaud my efforts in this Amendment to widen its extent, and that we shall have enthusiastic speeches supporting it.

The Amendment changes the Bill in an important respect. By it, we meet the feeling that, although it was wise in the first instance to have a very precise definition of the Parliamentary Commissioner's sphere of action, if we give him a sharp sword and powerful instrument and are precise about the areas that he should cover, we should also make it possible to extend those areas without a new Bill by including within his powers areas excluded in Schedule 3. That is what the Amendment does. It enables us by a negative Order—a simple Order in Council—to lay it down that either all or any part of the Schedule 3 areas which were excluded shall be included in the Bill.

The right hon. and learned Member for Chertsey (Sir L. Heald) was rather hoity-toity at one stage, and suggested that the Government did not want to overburden the Commissioner, talking as though the Commissioner would have no work to do. We shall be interested to see, after one year's work and he reports to a Select Committee about the number of cases that he has dealt with, who is right. I do not think that the right hon. and learned Gentleman will find that the Parliamentary Commissioner will not get a long roll of cases.

We have in Schedule 3 areas in which even the right hon. and learned Gentleman would think that the Parliamentary Commissioner and his subordinates would find a lot of work. For example, these areas include the actions of British consuls. This is one of the areas I would have liked to have covered, for it is one where people sometimes feel that they have been badly treated in going to a consul for help. Another area is in relation to overseas territories, while another covers the health services. We are including these in the Schedule in the sense that they can be covered by Order in Council. Other areas include the Civil Service and the Armed Forces.

This Amendment means that we shall be able, if we see fit, to cover all these areas by Order in Council. I shall not dilate on this subject for long but I will point out that, in view of what the Opposition said on the last Amendment, they should welcome this one. If by any chance they were right and we have narrowed down unduly the Commissioner's powers to deal with cases under the present proposals, here we are now giving Parliament power to extend the areas of his work. 9.30 p.m.

As my hon. and learned Friend the Financial Secretary has reminded us, there has been a remarkable change in the Opposition's attitude. Less than three years ago they were complaining that the whole idea must stop because it was dangerous to sound Government. Now they complain that the Commissioner will have too little work to do. The conversion is welcomed as an encouraging symbol of their support for this concept and their belief, expressed in, I suppose, words of great sincerity, that the Commissioner will have too narrow terms of reference. Now we are giving power to extend the terms of reference by Order in Council so that action can be taken if the Opposition's predictions are fulfilled.

The Leader of the House claims certain credit for the Amendment and certainly one rives him credit for bringing it forward. But it will perhaps be known to the House—as he hinted—that the absence of any such power had caused great concern among the Opposition Members of the Standing Committee. He chose to twit us with, first of all, a disbelief in the principle of the ombudsman and what he might achieve. I see nothing inconsistent in being very suspicious of the ombudsman as a major constitutional remedy because, to use the simple phrase already applied, it was "a swiz." Possibly we may be able to shorten the word ombudsman to swiz, which would be an advantage, I suppose, in many respects.

But if we are to have an ombudsman, then it is absurd so to limit his powers by exclusion that one turns him not only into the swiz he started off as but into a double swiz upon swiz. Our objective throughout has been that, if we are to have an ombudsman, it is wrong for the purposes of the public that they should be led to believe that they are going to get opportunities or rights through his powers which were not the case.

I was somewhat amazed to find the Leader of the House suggesting that Schedule 3 was designed to assist the ombudsman in limiting the work he would do. [Laughter.] I gather from the laughter that the House shares the absurdity of that which I had seen. At this time of night, I do not propose to take up a great deal of time. The Amendment gives a glimmer that it may be possible to correct the over-limited ambit of the Commissioner's powers on which both sides of the Committee were thoroughly dissatisfied. To that extent, the Amendment is welcome.

If the right hon. Gentleman is so desperate for some praise of the objectives of the Bill, he might have a few words of faint praise from me, but I am not much impressed by the terms of his argument. He has described this as a sharp sword for the Commissioner, but I see no danger, in the present state of the Bill, that the Commissioner will cut himself with it.

I see the Amendment as an admission on the right hon. Gentleman's part that the powers in the Bill as it stands would scarcely suffice to pull the skin off a rice pudding. It is all very well to say that, at some future date, we may be able to give the public the things they really wanted to see in the Bill. This Amendment is indeed a sensible provision for which I argued in Committee. I said then that we should include such a provision, if the Government were so obstinate as to refuse these powers from the start. I should be interested to know what insuperable objection the right hon. Gentleman sees to bringing in now the actions of British consuls or matters of the Armed Services.

Order. If the Lord President answered the hon. Member he would be out of order.

I was merely observing that, the Lord President having tantalised us by declaring that he had certain views. I would be interested to hear them in due course. We shall no doubt have a debate on the matter then. To say that he has put in the Bill the means for Parliament ultimately to make it decent legislation is no commendation of it, but rather a condemnation.

Amendment agreed to.