HC Deb 25 October 1916 vol 86 cc1216-26

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, terns made applicable to this Act:

Provided that—

  1. (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;
  2. (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, and any officer or person directed to hold an inquiry shall have power to administer an oath;
  3. (c) the Commission may act by two of their members;
  4. (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.

Mr. RAWLINSON

I beg formally to move to leave out the Clause.

I am moving the omission of the Clause because of an intimation from the Solicitor-General, when I moved an Amendment to an earlier part of the Bill, that I should raise the question upon this Clause. I am anxious to raise the question of the tribunal which has to determine the compensation payable for lands taken under this Act, or for other matter of compensation for injury. The Bill, as it stands, make the tribunal the Railway and Canal Commission. As I pointed out previously, I think that is an objectionable tribunal for this particular purpose. They themselves would not, as I said before, be in the least likely to try a case against themselves. If the case referred to land in Lancashire and Yorkshire, they would not go down there to hear the case. They would exercise the power which is conferred by this Section, and send down an officer of the Commission or other person to hold an inquiry. Probably they would send down a surveyor whom they would appoint as arbitrator, and he would probably report to the Commission, and they might or might not accept his report. The suggestion that I made on a prior Clause, and which I will make again when we come to the Schedule, is that in all cases where the question of compensation is to be determined it should be determined by an arbitrator to be agreed upon by the parties, or, in default of such agreement, by the President of the Surveyors' Institution. I am not of necessity committed to the words that I suggest, but the idea is an arbitrator whom the parties should agree upon or in default of agreement the arbitrator should be appointed by an independent authority. I think the House will see, without saying a word against any person appointed by a Government Department, that the people concerned would probably have greater confidence in an arbitrator appointed, failing agreement, by some independent authority. I submit that will be the best form in which the Amendment should be put before the House when the time comes.

There are one or two Amendments on the Paper already. There is one in the name of the hon. Member for Guildford. There is another by my hon. Friend (Colonel Gretton) which suggests that the compensation should always be determined under the terms of the Lands Clauses Act, as modified by this Act. People have such a fear of introducing these words, that possibly my Amendment, which I have put down for the Schedule, may be accounted better. The Amendment of my hon. Friend (Mr. Boyton) only is effective in the case of an agreement, and therefore does not go far enough. There is an Amendment down in the name of the hon. Member for Surrey (Mr. Home), who suggests that it should be the appointment from a panel of referees as under the Finance Act, Section 33, and so forth. That is a little bit complicated. After you have got this, you have only, after all, a person who has been appointed who is more or less of an official chosen from the panel. No doubt the panel are distinguished people. The Lord Chief Justice takes part in the appointment of it. I should prefer a much simpler and easier way, and would suggest taking the simple words I have put down. Everybody, I think, will agree that this is a very important question indeed as to who is to have the determination of the compensation, and I submit that the more simple the way the tribunal is chosen, the better it will be, and for that reason I hope the Government will adopt the Amendment which I suggest.

Sir G. YOUNGER

I beg to second the Amendment.

Sir G. CAVE

This matter is one of great importance, and one which has given us a very great deal of thought and consideration. The scheme, as hon. Members know, is that the Commission are at liberty to send down either one of their own number, or some other person whom they choose, to hold an inquiry and to determine the question of compensation. That person, I take it, would be looked upon as in the nature of an arbitrator. He would, of course, hear both sides, and would make his recommendations. There is a great deal to be said for that course. Objection, however, has been taken on the ground that if you have the same man going down time after time and reporting to the same Commission, he might get into a sort of groove from which you could never dislodge him. He might take a certain view either for or against the vendor, or for or against the Government. I must say that, having heard that objection urged upon me more than once, I am very desirous of meeting it, and of having no complaint of any kind in regard to the mode of fixing the compensation. That being so, what are we to do? There are on the Paper Amendments standing in the name of my hon. and learned Friend the Member for Cambridge University to the effect that you shall either have an arbitrator chosen by the parties or the President of the Surveyors' Institution. That is putting very great power into the hands of the president. He is always a distinguished man, and I do not say a word against him; but I think it is rather too much to ask the Government to put themselves entirely into the hands of an official, however distinguished. If hon. Members will look at the Order Paper they will see two Amendments. There is one standing in the name of the hon. Member for Guildford, which provides that—

"Where the subject matter of the inquiry relates to the amount of compensation only, the Commissioners shall, if so required by either party, appoint one of a panel of referees to be appointed in like manner as the panel appointed under Part I. of the Finance (1909–10) Act, 1910, chosen in manner provided by rules under Section 33 of that Act, to hold that inquiry, and subject to an appeal to the Commission on any question of law, the Commission shall act on the report of their referee."

Hon. Members know what that means. Under the Finance Act the Lord Chief Justice, the Master of the Rolls, and the President of the Surveyors' Institution appoint the panel of referees from most distinguished and able surveyors. They may make it as large as they please. When the reference arises these appoint the referee who is to hold the particular inquiry. I do not think anything could be fairer than that. We propose to accept that Amendment. We propose at the same time to accept the hon. Member's further Amendment:

"(e) Nothing in this Act shall prevent the reference to a single arbitrator any question of the amount of compensation under this Act if it be agreed between the parties that it be so referred."

Here you have the procedure which my hon. and learned Friend desires. First the right by agreement to refer to arbitration, and, failing agreement, a reference to an expert Committee, who select an arbi- trator. If these two Amendments be accepted, they will, I think, give general satisfaction to those who have raised objections.

Sir F. BANBURY

I understand the objection is this: Supposing the Lord Chief Justice and the others should set up a panel, it is left to the Commission to pick a man from the panel.

HON. MEMBERS

No, no!

Sir G. CAVE

To an independent Committee.

Sir F. BANBURY

That independent Committee will choose a man to be sent down in each case?

Sir G. CAVE

I will consider that point. I am not quite sure whether I am right.

Sir F. BANBURY

What I was going to say was that in the choosing of the arbitrator, representing the Commission, it might be that the same man will be picked every time. Therefore the objections, which my right hon. and learned Friend admitted, were valid objections. The man gets into a groove, and decides all the cases in that groove. Such a procedure would not be obviated by this method. Of course, if the people appointing the panel appointed the arbitrator in each case, that would meet the objection. Unless something of the kind is done, the objection, which is a very strong one, remains.

Sir T. WALTERS

I do not quite see how, with all deference to the learned Solicitor-General, he has quite fitted together the component parts of the answer to these objections. To my mind there is considerable confusion at present. According to the structure of the Bill, the Commissioners appoint the arbitrators who appoint the official to hear the inquiry. We have some improvement upon that. A panel, or, rather, a Reference Committee, is to be constituted with the power to select a panel. It is not at all clear who selects the particular member of that panel who goes down to hear the inquiry.

Sir F. BANBURY

The Commission.

Sir T. WALTERS

According to the Bill and the Amendments down on the Paper, it would be better for the Commissioners to make the appointment. You must have a scheme which is quite coherent and fair one way or the other. Do not let us have confusion between the Commissioners and the Committee of Reference. If I may respectfully submit my views, I think the simplest way would be to allow the appointment of these arbitrators to be entirely in the hands of the Reference Committee. If the Commissioners are simply to take from a panel of referees the man who goes down to each particular case, that does not seem to me to be any particular improvement upon the Commissioners picking the man originally. The first suggestion is that the Commissioners might not get suitable men, that the appointment is from too limited a circle of the same men, and that the man might or might not be a permanent Government employé, or might be a man who is constantly in the employ of the Government, and, therefore, without any intention to do what was unfair, would look at the matter from the Government standpoint. The very essence of any kind of arbitration is that the man who holds the inquiry, and who is the arbitrator, should be an absolutely impartial, independent man. It might be perfectly fair to send an official of the Ministry of Munitions down. He might do it honestly and well, but you would not call that arbitration. He would not try to rob anybody, but he would not be an independent, impartial person. Therefore I would suggest to the learned Solicitor-General, that if he is going to depart from the particular scheme in the Bill, he had better take his courage in both hands and make the departure a complete one, and if the Commissioners remain the judicial tribunal, then the Reference Committee select a panel, and, when called upon to do so, appoint from the panel of referees a man who is to hear the evidence in a particular case, and the report is to be received by the Railway and Canal Commissioners. Then you will have what is a complete scheme of an independent arbitration. Unless yon adopt that course, I think you will land yourselves in difficulty, and you will not quite know whether the Commissioners or the Committee of Referees are picking a particular arbitrator.

Mr. HORNE

Perhaps as a past-President of the Surveyors' Institution I may be able to show the hon. Gentleman who has just sat down that that is the procedure adopted under the Finance Act, and the President of the Surveyors' Institution, the Master of the Rolls, and the Lord Chief Justice first of all appoint the surveyors whom they think fitted for the work, not all London men, but from all over the country. Then when particular questions are submitted for arbitration these also come before these three gentlemen, and they, with the knowledge of the facts, choose one of the panel to go down and decide the points. I believe that that system has given universal satisfaction, and I know that all surveyors believe it to have been very valuable and to have done its work extremely well.

Colonel GRETTON

There is no doubt this means a very great improvement on the Bill as it originally stood. But it has its defects, as all these new methods of procedure must have. They must lead to some confusion, and also there is difficulty and uncertainty in establishing the general principles upon which this new procedure is to go forward. I think my Amendment, for those reasons, is better than the Amendment which the Government propose to accept, because, after all, you cannot get justice unless pains are taken, and all these short cuts to obtain justice and a right decision lead in the end to very great expense and great expenditure of time. For those reasons I do not think this particular Amendment which the Government propose to accept entirely meets the case. There is another aspect which, I think, should not be lost sight of by the House, if it agrees to this Amendment, and that is that, although the arbitrators are to settle questions of compensation, questions of law, curiously enough, are to be referred to the Commission. The Commission is not a legal Commission; it is not a Court of Law, though they have legal advisers. The Railway and Canal Commission is a Commission to deal with trading matters. It cannot be regarded as a Court of Law. Therefore, I contend that that Commission is not the right body to decide these points of law. It seems to me the right course would be to submit any points of law to the Law Courts, and not to refer them to the Commission, although it has upon it legal advisers. I am, I suppose, to a very great extent in this matter a voice crying in the wilderness. The Government are not even prepared to adopt the procedure of the Lands Clauses Acts. I do agree, however, that the Amendment is an improvement, and I beg to support it.

Mr. BOYTON

Since the Government are prepared to agree to the principle of arbitration, I am not very particular as to the method adopted. I have an Amendment on the Paper that the selection of the arbitrator should be left, in default of agreement, to the President of the Surveyors' Institution. I should have been quite satisfied and would have had every confidence in the selection by that gentleman, whoever he might happen to be at the time; but if the learned Solicitor-General thinks it would be placing too much power in the hands of any individual, then I am quite satisfied that the Amendment of the hon. Member for Guildford (Mr. Home) will answer, perhaps, as well for this tribunal, as it has done in connection with the Finance Act. Therefore, I will offer no objection, and only thank the Government for conceding the principle of arbitration. So long as it is conceded, and so long as there is mutual agreement, or, failing mutual agreement, a reference to some person or persons who will select an arbitrator, then I feel quite satisfied as to the future of the Bill.

Sir G. CAVE

It is not our intention or desire that a particular referee shall be chosen from the panel by the Commission. The effect, I think, of the Amendment is that the referee is chosen according to the rules made in the same way as under the Finance Act, but I will suggest words to make it quite clear. I suggest to my hon. Friend that he should put before the word "chosen" in his Amendment "such referee to be." Then it would be quite clear. You then get this effect, that the Reference Committee appoint a panel, the particular referee is chosen according to the rules, and then the Commission formally appoint him. They do not select him, but just appoint him.

Mr. RAWLINSON

So far as I understand the learned Solicitor-General I am at one with him. But could not something clearly be set out so that even a layman might understand what really we intend We all understand that when required a panel shall be appointed. The panel, I gather, is to be appointed by the Railway and Canal Commission.

Sir G. CAVE

No.

Mr. RAWLINSON

To be appointed by someone—at the present moment I do not know by whom—and when a particular case arises, say, in Devonshire—

Mr. SPEAKER

I think the hon. and learned Member had better reserve his criticism until we reach the Amendment.

Amendment, by leave, withdrawn.

Amendment made: In paragraph (b), leave out the words "or two" ["by any one or two of their members."]—[Sir G. Cave.]

Sir G. CAVE

I beg to move, at end of paragraph (b), to insert the words "and shall report the result of the inquiry to the Commission."

The object is that the person delegated shall not be able to decide, but shall report to the Commission.

Amendment agreed to.

Mr. HORNE

I beg to move, at the end of paragraph (b), to insert the words "in particular, where the subject matter of the inquiry relates to the amount of compensation only, the Commissioners shall, if so required by either party, appoint one of a panel of referees to be appointed in like manner as the panel appointed under Part I. of the Finance (1909-10) Act, 1910, such referee to be chosen in manner provided by rules under Section 33 of that Act, to hold that inquiry, and subject to an appeal to the Commission on any question of law, the Commission shall act on the report of their referee."

Mr. RAWLINSON

Surely it does not carry out in any way that which we all agreed should be carried out. Here you have these words: the Commissioners shall, if so required by either party, appoint one of a panel of referees to be appointed in like manner as the panel appointed under Part I of the Finance (1909–10) Act, 1910. That is, the Commissioners shall appoint one of a panel of referees. They appoint Mr. Jones. such referee to be chosen in manner provided by rules under Section 33 of that Act. You have already stated who is to appoint one. The Commissioners have already appointed Mr. Jones, who has to try a case, say, in Devonshire, so that so long as you have the words "the Commissioners shall appoint one of a panel of referees" the mischief I pointed out is not remedied. What we are all agreed upon is that there should be a panel of referees appointed by some independent tribunal—we do not care very much who. When there is that panel of referees, an independent tribunal, as we understand it, such as the Lord Chief Justice, the Master of the Rolls, and the President of the Surveyors' Institution, shall nominate out of that panel a particular man for any particular case. I would, therefore, suggest that the Clause should be redrafted to carry that out. What I want to make perfectly plain is, that the Railway and Canal Commission shall have no voice in appointing a man who is to be sent down.

Sir G. CAVE

It is not my intention.

Mr. RAWLINSON

The Amendment as it stands does that. We have got now a very important Amendment for which I am very much obliged to the Government, but I wish to make it perfectly plain that the Railway and Canal Commission shall have no sort of voice in the appointment of the arbitrator.

Sir T. WALTERS

If I understand the Solicitor-General rightly he is proposing to do exactly what the hon. and learned Member opposite lays down. Whether the words of this particular Amendment give power to do that I am not quite clear, and I should imagine that this Amendment requires redrafting. The procedure now becomes clear. The Committee of Referees appoint a panel fitted for the different kinds of work, and when the Commissioner has a particular case this Committee of Referees select from the panel the man who has to go down to any particular place. They send that recommendation to the Railway and Canal Commissioners and they appoint someone to do the work. He goes down and holds an inquiry, and if any point of law arises he has to refer it to the Railway and Canal Commissioners, to whom he presents his report. I think that is an excellent, simple, and inexpensive scheme of arbitration.

Amendment agreed to.

Mr. HORNE

I beg to move, at the end of the Clause, to add the following new Sub-section:

"(e) nothing in this Act shall prevent the reference to a single arbitrator any question of the amount of compensation under this Act if it be agreed between the parties that it be so referred."

Mr. RAWLINSON

This Amendment raises the same point I put upon the last Amendment, and I want an understanding that this will be made clear and incorporated in another form in another place. I agree that in substance these two Amendments will carry out what I desire.

Sir G. CAVE

We will consider in another place whether the wording can be improved.

Amendment agreed to.