§ The provisions of the Railway and Canal Traffic Act, 1888, as amended by any subsequent enactment, relating to the procedure for the determination of questions by the Commission under that Act, including the provisions relating to appeals, shall apply to the determination of questions referred to the Commission under this Act, as if they were herein re-enacted and in terms made applicable to this Act:
§ Provided that—
- (a) the Commission may in any case in which they think it expedient to do so call in the aid of one or more assessors specially qualified, and hear the case wholly or partially with the assistance of such assessors;
- (b) the Commission may hold a local inquiry for the purposes of this Act by any one or two of their members, or by any officer of the Commission or other person whom they may direct to hold the same, and the said provisions of the Railway and Canal Traffic Act, 1888, except the provisions relating to appeals, shall,
2380 so far as applicable, apply to such inquiries, and any officer or person directed to hold an inquiry shall have power to administer an oath; - (c) the Commission may act by two of their members;
- (d) the discretion of the Commission with respect to costs shall be subject to the provisions of the Lands Clauses Acts as modified by this Act as to costs, in cases where those Acts as so modified apply, but shall not be limited in the manner provided by Section two of the Railway and Canal Traffic Act, 1894.
§ Colonel GRETTONI beg to move, to leave out the words "Railway and Canal Traffic Act, 1888, as amended by any subsequent enactment, relating to the procedure for the determination of questions by the Commission under that Act, including the provisions relating to appeals," and to insert instead thereof the words "Lands Clauses Acts, as modified by this Act."
Clause 8 states that the provisions of the Railway and Canal Traffic Act shall apply to the determining of all questions of compensation, and it sets up the procedure under that Act for the consideration of questions which arise out of the acquisition of land. This is entirely a new procedure. Apparently, the Government in drafting this Clause were not able to do away altogether with the Lands Clauses Acts, for they bring them in for one minor purpose relating to costs at the end of the Clause, stating that the discretion of the Commission with respect to costs shall be subject to the provisions of the Lands Clauses Acts, as modified by this Act. I suggest that this new procedure is entirely unnecessary and inconvenient. It would be far better to proceed under the Lands Clauses Acts, determined by many decisions and modified by subsequent enactments. The procedure under those Acts is well understood and is just and inequitable as between the parties appearing before the tribunal. I protest against the Government unnecessarily setting aside a well-established procedure. Government Departments always want to find the short cut and some way of saving themselves the labour and the necessity of the old procedure. They are always glad to find some excuse for setting up a new procedure which will enable them more readily and easily to obtain the end—no doubt, a quite 1 proper one—which they have in view; but 2381 in so going forward they may tread upon the rights of individuals and public authorities.
§ Sir G. CAVEI did not want to interrupt my hon. and gallant Friend in the protest that he desired to make, but is this Amendment, in fact, in order? We have already passed Clauses entrusting certain powers to the Railway and Canal Commission. This Clause simply provides in what manner the Commission is to determine questions brought before it. It simply provides the machinery and modifies the usual procedure of the Railway and Canal Commission. The effect of the Amendment is to cut out the Railway and Canal Commission altogether and to substitute the Lands Clauses Acts. I submit that is not in order, and altogether outside the purpose of the Clause.
The CHAIRMANI am afraid, not being a lawyer, that I am not very familiar with these procedures, but I think it is an argument against the Amendment on its merits rather than a question of order. It does not seem to me impossible for an hon. Member to propose the elimination of the procedure before the Railway and Canal Commission. I was going to ask the hon. and gallant Member how his two Amendments work together. They appear to destroy one another, and I am afraid that I shall have some difficulty in putting the Question to the Committee. Are they consequential?
§ Colonel GRETTONNo, Sir. If I fail to obtain the assent of the Committee to this Amendment, the other [To leave out the words "of questions by the Commission under that Act, including the provisions relating to appeals, shall apply to the determination of questions referred to the," and insert instead thereof the words "or questions of compensation to be determined"] is an alternative Amendment, which I think would improve the wording of the Bill.
§ Mr. STUART-WORTLEYOn the point of Order. If this Amendment is in order and it is carried, we shall have to recast Clause 1 and every intervening Clause. It seems to me that my hon. Friend's Amendment is too late.
The CHAIRMANI think that is so with regard to the first Amendment. It would leave this Clause contradictory to the other Clauses which the Committee have 2382 already passed. I think we had better pass on to the hon. Member's second Amendment.
§ Colonel GRETTONOn that point of Order. My object is to insert the Lands Clauses Acts instead of the Railway and Canal Traffic Act. Possibly my words may go a little too far, but what I want is that these questions, when they come up for decision, shall be determined under the Lands Clauses Acts and not under the Railway and Canal Traffic Act. That is the whole object of my Amendment.
§ Sir F. BANBURYMy right hon. and learned Friend (Sir G. Cave) said that we should have to recast Clause I where the Railway and Canal Commission is already named. I do not think so. My hon. and gallant Friend wants to leave out the Railway and Canal Traffic Act. He does not want to interfere with the Commission. Clause 1 does not name the Railway and Canal Traffic Act, but the Railway and Canal Commission. My hon. and gallant Friend wants to say that the Commissioners shall be guided, not by the Railway and Canal Traffic Act, but by the Lands Clauses Acts. It may be wrong, but surely it is quite open to us to say to the Commission, "In giving your decision you shall be guided by a certain Act."
§ Mr. BRUNNEROn the point of Order. On Clause 5 we have already provided that these decisions shall be under the Land Clauses Acts.
The CHAIRMANIs not the Committee mixing up two things? We are dealing here with the question of procedure, not compensation. That is provided for elsewhere. I think that is the mistake the hon. Member makes. Having referred certain things to the Railway and Canal Commissioners, we must make some provision regarding procedure, as to how the matters are to get there and to be dealt with, and that is what this Clause, as I understand it, does.
§ Sir F. BANBURYSurely it is in order to say that the Commissioners shall be guided by a particular Act of Parliament. The Bill mentions a particular one, and this Amendment refers to another. I maintain that is in order.
The CHAIRMANI must leave this question of merits to be decided by the Committee. It is not, I think, for me to decide the point.
§ Sir G. CAVEThis Amendment really would not work at all. The purpose of the Clause is to determine the procedure under which the Commission are to sit. That is to say, they are to sit as a court, to hear people who come before them, to fix their sittings, and all the rest. The hon. Gentleman wants to put in place of that nothing except that "the Lands Clauses Acts as modified by this Act shall apply to the determination of questions referred to the Commission under this Act." That leaves out the whole of the provisions relating to procedure, and we have no guide for the Commissioners at all as to procedure if we adopt this Amendment. The whole of the provisions relating to the holding of local inquiries, and of having surveyors and assessors, would go. You would have nothing but the naked provision that their procedure should be under the Lands Clauses Acts. What is the meaning of that? What is there in the Lands Clauses Acts that would be used to determine their procedure? They provide for a jury, and all the rest. What has that to do with the Commission?
§ Colonel GRETTONOr an arbitrator.
§ Sir G. CAVEOr an arbitrator. But what has that to do with the Commission? Once you have referred it to the Commission you cannot fit in the Lands Clauses Acts procedure. You have a Commission there already to settle the question, and this Amendment is really impossible. It puts the Act in a position in which it would not work at all. I understand the hon. and gallant Gentleman wants the Lands Clauses Acts to apply to the determination of the amount of compensation. That is a different matter altogether.
§ Colonel GRETTONThat is my second Amendment.
§ Sir G. CAVEYes, that is not this Amendment. This Amendment cuts out the whole procedure, and puts in something which I assure the Committee would not work in any way.
§ Colonel GRETTONI am always open to conviction, and I am impressed by my right hon. and learned Friend's arguments. I therefore ask leave to withdraw this Amendment at this stage, so that we can consider it further when we see the Bill drafted on Report, and when probably it can be raised in a more convenient form.
§ Amendment, by leave, withdrawn.
2384§ Colonel GRETTONI have an Amendment to leave out the words "of questions by the Commission under that Act, including the provisions relating to appeals, shall apply to the determination of questions referred to the." and to insert instead thereof the words "or questions of compensation to be determined."
§ Colonel GRETTONNo, I am afraid it will not read, and I cannot therefore go on with it at this stage. I must get it redrafted. These Amendments have been put into my hand, and they are not my own.
§ Mr. HORNEI beg to move, after the word "of" ["determination of questions"], to insert the word "all."
These Amendments I have put down are for the purpose of fixing the executive tribunal before whom any appeals for compensation are heard. It does not take out of the hands of those who have been appointed Commissioners the determination of whether compensation should be allowed. It only fixes the tribunals before whom cases are heard, and for that purpose I wish to provide that the tribunal shall be of the same character as that set up under the London Building Act. That has worked extraordinarily well, the cost has been small, and the awards have been very cheerfully assented to on both sides. All I have done here is to try and determine particularly that qualified persons should have the duty of making these awards.
§ Sir G. CAVEI quite understand my hon. Friend's object. If we put his Amendments together, as we must do, they come to this: that while preliminary questions are left to be determined by the Railway and Canal Commissioners, the question of the proper compensation shall be determined by a new tribunal set up under the Act on the lines of the tribunal under the London Building Act. It is a very attractive proposal, I agree, for some reasons. I do not think it would save expense. You would have two tribunals for one, but it would have the advantage, that you might select your tribunal in accordance with the duties they had to perform. You might put more surveyors on the tribunal than you have on the Railway and Canal Commission. That is true, but there are considerations which make it impossible for us to accept this Amendment to-day. To 2385 begin with, the Resolution of the House would not, I think, cover this Amendment, so that we could not under the existing Resolution accept and give effect to this proposal. Secondly, we ought to remember that the Railway Commission has this special virtue, that it is adapted to the three countries making up the United Kingdom. It has for its president a judge of the country in which the question arises, and the two other nominated members, you have, therefore, a special arrangement under which you get in each country of the United Kingdom a judge of that country to preside over the Commission. That is a very great advantage, and that is the reason, I think, why hon. Members for Scotland suggested the Railway and Canal Commission, because they know it is especially adapted to Scotland and Ireland, as well as to England. If you had this tribunal, it would really be very good for London, where they have not very far to go, but we might find it very awkward for them to sit all over the Kingdom to hear these cases. These are reasons why the Railway Commission are to be preferred, but at the same time I do not want to shut the door on this proposal altogether. It may be—I do not know—that before this Bill passes through the next stage a Commission may be set up under some other Act which would be appropriate for this purpose, and more appropriate than the Railway and Canal Commissioners. If that should happen I should be very willing to reconsider my hon. Friend's proposal and to see whether effect cannot be given to it. I do not want to shut the door finally on it, but I am quite certain that for the moment we ought not to accept it.
§ Mr. RAWLINSONI do not think the speech of my right hon. and learned Friend quite does justice to this Amendment. He does not suggest, surely, that supposing land is taken in Hampshire, the judge of the High Court, and the two other members of the Railway and Canal Commission, are going down to try that case?
§ Sir G. CAVENo.
§ Mr. RAWLINSONThe system in this Bill is thoroughly bad, and that is why I support my hon. Friend's Amendment, although it is not the one I like best. I should like to see brought in the Lands Clauses Acts as a whole, but this Amendment is better than the Bill as it stands, 2386 which is thoroughly bad. What happens is that the Railway and Canal Commission will appoint a surveyor to try the compensation case in Hampshire. The Lands Clauses Acts give power to the landowners to appoint a surveyor and to the Government to appoint another surveyor, and for the appointment of an umpire, who tries the case where it happens. That is the best tribunal, but I would sooner have my hon. Friend's proposal than that set up under this Bill. I am not cavilling at the position of the Commission, except on the question of the quantum of compensation to be granted, and with regard to that as an alternative to this thoroughly vicious system I support this Amendment, though I would prefer that it should go under the whole of the Lands Clauses Acts, and that a surveyor should be appointed in the ordinary way.
§ Amendment negatived.
§ Mr. POLLOCKI beg to move, in paragraph (b),to leave out the words "except the provisions relating to appeals."
8.0 P.M.
The Solicitor-General has pointed out that the object of this Clause is to enact the procedure which should apply and the code under which the Commission shall sit and determine the questions referred to it. For that purpose, as he explained to one of my hon. Friends, it is necessary to apply the Railway and Canal Traffic Act, 1888, which contains a full series of Sections providing for the various steps which are to be taken in the course of the hearing, giving power to the Commission by rules and regulations which will be made as authorised, to have power to determine the questions that come before them, and, indeed, to form one of their regular courts. It will be observed that in this proviso the provision is made in paragraph (b):
"the Commission may hold a local inquiry for the purposes of this Act by any one or two of their members, or by any officer of the Commission or other person whom they may direct to hold the same, and the said provisions of the Railway and Canal Traffic Act, 1888, except the provisions relating to appeals, shall, so far as applicable, apply to such inquiries."
The Committee will observe in the operative part of Clause 8 that all the provisions of the Railway and Canal 2387 Traffic Act, including the provisions relating to appeals, are to apply, but by virtue of paragraph (b) of the proviso, when the Commission are holding a local inquiry, the provisions relating to appeals are excepted. What are the reasons for that? Let me explain. Under Section 17 of the Railway and Canal Traffic Act it is provided that—
"No appeal shall lie from a Commissioner upon a question of fact or upon any question affecting the locus standi of the complainant."
I suppose that the draftsmen thought that in this case, where the Commission are holding a local inquiry, that that inquiry would relate only to questions of fact, and would not involve more, and therefore it would be unimportant that there should be a power of appeal, because, inasmuch as there is no power of appeal on a question of fact from the Commissioners, it would be unnecessary to give a power of appeal if the Commissioners were only to form an opinion upon a question of fact in applying Section 17, there would be no virtue in the words giving a power of appeal. But let the Committee observe there is no protection that when the Commission holds a local inquiry all that they shall do is to determine questions of fact. That is not so provided. The power that is given to them is to hold a local inquiry. Presumably, when the Commission have gone to some locality, they will form their opinion not only on questions of fact, but it is quite possible they will involve some questions of law. If so, there ought to be some appeal from their decision or determination which is taken when they are acting in the country, just as power is reserved when they are sitting in their proper court in London.
Inasmuch as this inquiry is not limited to mere questions of fact, it seems to be important that these words at present in the paragraph should be deleted. All I am asking is to delete the words, "except the provisions relating to appeals," so that if it becomes necessary at any time, if by reason of the fact of the Commission sitting locally they come to a decision upon a question of law, the person who may be aggrieved by that decision shall have precisely the same right of appeal that he would have if they had been sitting in their own court. I can see no reason why you should shut the door 2388 upon any appeal, and inasmuch as it is quite possible that the determination of the Commission may involve some question of law, there ought to be a right of appeal. It is not sufficient merely to say that the Commissioners will only deal with facts, because if so the proviso ought to be enlarged and should make that plain, but so long as the proviso remains as wide as it is at present, so long is it necessary to give the same power of appeal as is given under the Act of 1888. That is specifically and in terms safeguarded, in respect of the conclusions arrived at by the Commission, in the body of Clause 8. For these reasons, although it may not affect many people— in fact, it may not affect any at all— these words ought to be deleted in order to safeguard the position of an applicant, even though the possibility is that the remote number of cases in which this Amendment may operate may be few.
§ Sir G. CAVEThe Amendment proceeds upon a misapprehension of the meaning of paragraph (b). The matter will arise in this way: The Commission has a point to determine. For the purpose of determining that point they want to be assured of certain facts. For that purpose they send one of their number— it may be one or two, but in most cases it will be one—down to the locus in quo and direct him to inquire and report as to the facts. He comes to no decision upon the main question before the Commission. He simply ascertains the facts and reports them to the Commission. The Commission holds a court and decides the question. From that ultimate decision there is, of course, a right of appeal. We do not take that away. The effect of the Amendment is that there would be an appeal from the local inquiry direct to the Court of Appeal, so that you would have this absurd position: first, the local inquiry coming to certain decisions of fact—it might involve questions of law; I do not think it would, but let us assume that it would—then you get an appeal from that local inquiry to the Court of Appeal. Then the Commissioner makes his report to the Commissioners and they come to a decision, perhaps the other way, not agreeing with their representative, and then there is an appeal from their decision. That is not the intention at all. The result of the local inquiry is simply a report to the general body of Commissioners, who will act or will not act upon it, as they think fit. Upon that 2389 explanation my hon. and learned Friend (Mr. Pollock) will see that it would not be right that an appeal to the Appeal Court should apply to a mere local inquiry, which is an inquiry for the purpose of informing the minds of the Commissioners before they come to their decision.
§ Mr. RAWLINSONParagraph (b) is a very important provision. It is under it that all these compensation cases will be tried, and that the Commissioners will send a surveyor down. Let me take the case to which I referred on the previous Clause, a compensation case in Hampshire. The Commission will send down a surveyor to take evidence as to the value of the land. He will hear witnesses and cross-examine and hold the order of inquiry.
§ Sir G. CAVEHe will then report to the Commission.
§ Mr. RAWLINSONYes, he will make his award or report. In the ordinary circumstances it would be an award; in this case it will be a report. He will have counsel and the expert witnesses before him in Hampshire, and he will make a report, say, that the compensation should be £l,000. The Commission will not hear any more counsel after that. They will simply take the report and say, "£1,000 compensation." The object of this Amendment is to provide that, in a case where the arbitrator—I will call him that for the sake of convenience; he is the person sent down to the country— makes a mistake in law, so that the £l,000 compensation is arrived at by a misunderstanding or a misapplication as to law, the aggrieved landowner may have the power to go to the Court of Appeal, nominally of course, to appeal from the decision of the Commission itself, but practically from the decision of the person who has made the report.
§ Sir G. CAVEThe aggrieved landowner would have that power. The Commissioners will give their decision on those materials I agree, but that decision could be appealed from. On the appeal the appellant could go into the whole reasons given by the Commission for their decision, including the report upon which they acted.
§ Mr. POLLOCKWe are really all agreed upon this, but at the same time 2390 some modification of this paragraph (b) is necessary. Let me follow the reasoning of the Solicitor-General. He says the only purpose of the local inquiry is to ascertain the facts. Then let us say so. In that case some words are needed on the following lines: "The Commission may hold a local inquiry for the purpose of ascertaining the facts," or, "upon a question of fact for the purposes of this Act." If we put in those words we can leave in the words "except the provisions relating to appeals." The Solicitor-General says that the Clause means that, but it does not say so. At the present moment all it says is that the Commission is to hold an inquiry. Let me put this case to him: Suppose an inquiry is held and the person holding it rules out a certain body of evidence on the ground that he is not entitled to hear and will not hear evidence upon a particular matter. The conclusion upon that is absolutely final. There is no power to appeal, yet it may be of great importance that the evidence should have been heard. The decision arrived at may be a different one from that which ought to have been arrived at. Upon a matter like that, it is quite clear that you ought to have an appeal. On the other hand, if the Solicitor-General means to confine this to the cases to which he says he does, then we must limit it by precise words. In any event, the Solicitor-General will remember that I am not asking for an appeal on questions of fact. The picture he drew of having an appeal on a question of fact cannot possibly arise. No possibility can arise of an appeal on a question of fact. I am not going to press the Amendment, but on Report we must do either one thing or the other, either take out these words or put in some other words to make the Clause read as the Solicitor-General says it is intended to read.
§ Sir F. BANBURYIt struck me that it might be possible at the end of paragraph (b) to have put in words providing that the result of the inquiry must be confirmed by the Commissioners. The Government is evidently desirous of giving an appeal and I think the words may possibly lead to some misconception.
§ Sir G. CAVEIt is not a question of affirming the result of the inquiry. The Commissioners get the Report and act upon it.
§ Sir F. BANBURYI suggest words of this sort, "Provided that any decision of the local inquiry shall have no effect unless confirmed by the Commission."
§ Sir G. CAVEThat is not the effect. It is like a report of an inspector of the Local Government Board. He holds an inquiry, gets the facts and reports to the Board. No one knows what he reports, and you have nothing but the decision of the Board.
§ Sir F. BANBURYIt is a very important matter, because the Sub-section gives power to the Commission to appoint anyone to hold a local inquiry. That may be all right provided there is an appeal if the decision is given wrongly, as it might be, because it is not one of the Commissioners. It is very important that an appeal should be given. Here we have my two hon. and learned Friends and one right hon. and learned Gentleman opposite, all three equally learned in the law, but two of them take a totally different view from the Solicitor-General as to the effect of these words. It is a very complicated Bill, and some of us think it is going to deal very hardly with private rights. Surely we ought to make quite clear what the powers are and what they are not. I dislike saying anything about Report because there are so many things which have to be settled on Report that I am afraid if we put everything off we shall not get anything like so good a Bill. Cannot the right hon. Gentleman consider whether or not some such words as I have suggested should be put in on the Report stage providing that the decision, if there is a decision, of the local tribunal shall go back to the Commissioners, who shall give a final decision?
§ Mr. RAWLINSONI do not think there is any difference about law between any of us, but can there be any objection to some such words as my right hon. Friend has suggested at the end of paragraph (b)? It is rather an out of the way paragraph at present. It suggests that one or two members of the Commission may hold an inquiry. Paragraph (c) says that the Commission may act by two of their members. Therefore you have two members of the Commission going, say, to Hampshire, holding an inquiry and hearing people upon oath, and they could then and there settle the matter and not refer it to any other Commissioner at all. That clearly is not what the right hon. Gentleman means should be done.
§ Sir G. CAVEI will consider it.
§ Amendment, by leave, withdrawn.
§ Motion made, and Question proposed, "That the Clause stand part of the Bill."
Mr. DENNISSThis discussion points very clearly to the necessity of having some other tribunal to decide cases of compensation in regard to the taking of land and easements than this Commission. See how awkward it would be, for the reasons which were given just now. Two Commissioners go down on a question of compensation for land and all they do is to report. The two of them report to the third, so that practically all they do would be confirmed by the Commissioners. The right hon. Gentleman would be able to find some means of getting compensation in respect of taking lands and easements out of the Lands Clauses Act and take it away from the Railway and Canal Commissioners. I have practised before the Railway and Canal Commissioners, and I never knew them assess compensation for the taking of land compulsorily or even by agreement, and they have really no machinery for doing it. I think the whole proceeding of the Commission most complicated and most unsatisfactory. They are put upon some work of which they have no experience, and about which they know practically nothing and they have to decide questions of valuation which are only fit for a skilled arbitrator who is accustomed to dealing with land, and it would relieve them, I am sure, knowing as I do the constitution of these tribunals, a judge of the High Court, a celebrated engineer and a third—I do not know who the third is—if they were not asked to undertake the burden of assessing compensation for the taking of land and easements all over the country. There is a code set up by the Lands Clauses Acts which is absolutely complete. It has been in existence since 1845, its provisions are well known, the practice is well known, and the tribunal consists of those who are most fitted for it, namely, either a jury presided over by someone who is accustomed to proceeding in eases of compensation and valuation or the Sheriff's Court of the City of London, or, if the parties wish it, by arbitration. On the whole I think we might exclude the jury altogether and simply go on arbitration under the Lands Clauses Acts. I throw that out as a suggestion if my right hon. Friend can find a means of relieving the Railway and Canal Commissioners, 2393 who are in no way suited for this class of work, and put in the arbitration Clauses of the Lands Clauses Acts.
§ Mr. RAWLINSONI wish to point out the extraordinarily unsatisfactory nature of this tribunal. I had not quite realised it until the Solicitor-General spoke before. Suppose you wish to arrive at compensation or any other question connected with the taking of land, the Railway and Canal Commission can send down a person to held an inquiry with power to take evidence on oath, and his award shall never be published, but simply sent back to the tribunal and they may or may not act upon it, and they might act upon it without hearing evidence or in any way they think right. Surely that is not a satisfactory way of doing business. That has been an objection to the local reports of the Local Government Board, but the countervailing advantages from the point of view of Departmental administration have overcome them and the matter is allowed to go on; but when it is a question of local reports involving large amounts of money that is the most unsatisfactory form of tribunal for assessing any rights of that kind which could possibly be imagined. It is the only tribunal of that kind which does not publish its decision, and whose decision has no authority, and later, when we come to the Clause dealing with the Lands Clauses Acts, I shall wish to mention the exceedingly unsatisfactory condition of the tribunal as it stands at present.
§ Question put, and agreed to.
§ CLAUSE 9 (Payment of Compensation and Purchase Money) ordered to stand part of the Bill.