§ (1) A local education authority may be authorised to purchase land compulsorily for the purpose of any of their powers or duties under the Education Acts, by means of an Order submitted to the Board of Education and confirmed by the Board in accordance with the provisions contained in paragraphs (1) to (13) of the First Schedule to the Housing, Town Planning, Etc., Act, 1909, and those provisions shall have effect for the purpose, with the substitution of the Board of Education for the Local Government Board, of the local education authority for the local authority, and of references to the Education Acts for references to "this Act":
§ Provided that the Board of Education shall not confirm any such Order even when unopposed if they are of opinion that the land is unsuited for the purpose for which it is proposed to be acquired.
§ (2) The powers given by this Section in relation to the compulsory purchase of land by the local education authority shall be in substitution for any other powers existing for that purpose.
§ Mr. HOLT
I beg to move, in Subsection (1), after the word "authority" ["A local education authority"], to insert the words "subject to the provisions of the Housing, Town Planning, Etc., Act, 1900."
1638 This Clause proposes to give to the local education authority power to acquire land compulsorily for the building of schools, and it gives them the powers contained in paragraphs (1) to (13) of the First Schedule of the Housing and Town Planning Act, 1909. That Schedule, as far as I can understand it, will give the Board of Education power to take land on its own authority in a rural district, but it requires that if the land is situated in London, or in an urban district, or borough, the Board shall appoint an impartial person to hold an inquiry, and if the result of the inquiry is adverse, then the Board can only proceed by means of a Provisional Order. These are the powers which the Board of Education propose to take, but in the Housing and Town Planning Act there is a very considerable saving power, not in the Schedule incorporated in the Act, but in the body of the Act. The words to which I refer are these:Nothing in the Housing Acts shall authorise the acquisition for the purposes of those Acts of any land which is the site of an ancient monument or other object of archaeological interest, or the compulsory acquisition for the purposes of Part III. of the Housing of the Working Classes Act, 1890, of any laud which is the property of any local authority or has been acquired by any corporation or company for the purposes of a railway, dock, canal, or other public undertaking, or which at the date of the Order forms part of any park, garden, or pleasure ground, or is otherwise required for the amenity or convenience of any dwelling-house.Many who are very much interested in these public authorities and public companies strongly object that land which has been acquired by them under the provisions of an Act of Parliament being taken from them by a mere Order of a Government Department. These corporations referred to in the Clause which I have read are corporations existing under statutory authority which have acquired land, frequently compulsorily, by means of a special Act of Parliament; and I submit that it is not right that land so acquired under the provisions of an Act of Parliament should be taken from the person who acquired it merely by the Order of a Government authority. The object of my Amendment is to preserve the proper possession of the property.
§ The ATTORNEY-GENERAL (Sir Frederick Smith)
My hon. Friend, in a very moderate speech, has called attention to a point in the proposal of the Government as to which he and his Friends require some assurance, and it is not impossible we may be able to suggest 1639 a course which will allay the misapprehensions which they entertain. It may not be inconvenient for the Committee if, in dealing with the point made by my hon. Friend, I give some general explanation of the Clause so far as the Amendment is directed to it. This Clause 30 was not adopted without very careful consideration of the history of the matter, and I am sure my hon. Friend will do the Department the justice to believe that they examined very carefully into previous disputes and grounds of controversy in order to ascertain whether the proposal contained in this Clause was likely to lead either to disputes or to inconvenience. I may tell the Committee the object of the Clause, because it is very important, and I am hoping it will recommend itself to the Committee on that ground. The existing system of compulsory purchase, which everyone agrees it is necessary to improve if the new Education Act is to be carried out efficiently, is contained in Section 20 of the Elementary Education Act, 1870. That Section is very well known. It provides for compulsory purchase by Provisional Order under the procedure contempated by the Lands Clauses Acts. The objections to procedure in these and cognate matters under the Lands Clauses Acts are so numerous and so universally admitted that if I were to spend time in dwelling upon them I should rapidly exhaust the patience of the Committee. We are all familiar with the 10 per cent., with the tribunal, with the two arbitrators, which are apt to develop qualities which in other tribunals would be regarded with great suspicion. I do not think I am exaggerating when I say that even before the War those who had had, as I have had, to deal with proceedings under the Lands Clauses Acts had come to the conclusion that a very drastic reform of those Acts was required if the acquisition of land is to be carried on smoothly and expeditiously in the future.
For the purposes of this Act it was necessary at the middle of the War to acquire public property, and it was necessary not to introduce a new method, because that would have been to anticipate a very important act of reconstruction and one to which I am glad to say attention has already been given. It was necessary, therefore, to adopt for the purposes of this Act some other form of purchase. It was, therefore, decided to make the only 1640 choice we could among the existing systems by taking what was the most suitable, and we selected the procedure under the Housing and Town Planning Act of 1909. Under that procedure should an authority require land for educational purposes it would be able to make an order for the compulsory acquisition of the land which requires confirmation by the Board of Education. Then as to the safeguards. In the first place, if the authority which requires land for educational purposes makes an order for the compulsory purchase, such order requires confirmation in every case by the Board of Education, and if such order is opposed the Board of Education must hold a public inquiry before confirmation, and many precautions are taken to see that the inquiry shall be an effective inquiry. If the site is in London or in or about an urban district a public inquiry must be held by an impartial person unconnected with any Government Department, and if the impartial person, when you discover him, reports unfavourably the order cannot be made except with the approval of Parliament under the ordinary Provisional Order system, and this procedure is adopted practically under the present Bill without any modification.
My hon. Friend is apprehensive that in the case of dock companies—and another hon. Friend has the same apprehension with regard to railway companies—the compulsory purchases under this present proposal may apply to certain lands belonging to these undertakings which up to the present were not liable to be dealt with in this particular way. I may explain the real position. The Board of Education have power at present under Section 20 of the Elementary Education Act of 1870 to authorise the acquisition of any land of that description by compulsory purchase, but my hon. Friend is right in stating that while this is the case the application of compulsory powers to the kind of property which he has in mind does require confirmation by Parliament. But, subject to that, the power exists and extends to that property. I think that my hon. Friend is entitled to say when we are not dealing with the whole question of the acquisition of property in a complete manner we ought not to deprive these people of the protection which they have always enjoyed by the operation of Section 20 of the Elementary Education Act, 1870. It is conceded that we are not precluded 1641 from authorising the compulsory acquisition of land, and I do not gather that my hon. Friend denies to us the exercise of the powers which we have always enjoyed, but he says that we ought not to continue to exercise these powers unless these people enjoy the right of appeal which they have always enjoyed. If my hon. Friend accepts that view, I propose to move the following Amendment:(c) An Order for the compulsory purchase of land of the nature which by Section 45 of the Housing and Town Planning Act, 1909, is exempt from compulsory acquisition for the purposes of Part III. of the Housing of the Working Classes Act, 1890, shall be provisional only and shall not have effect unless and until it is confirmed by Parliament.The effect of that is that all the protection which is enjoyed by dock boards and railway companies under the existing Clause will be secured by them when this Bill becomes law, and at the same time the education authority shall have preserved the rights which they have at present.
§ Sir F. BANBURY
I had an Amendment down which I understood the President was going to accept, and I would ask my right hon. and learned Friend if he will allow me to move the Amendment which he foreshadows in a somewhat different form—(b) An Order for the compulsory purchase of land in the administrative County of London shall be subject to the provisions of Sub-section (2) Section 2 of the Education (London) Act, 1903,and then come the words which my right hon. Friend has just read out.
§ Sir F. SMITH
On the point of Order. If that is a possible course, I have no objection. I have very carefully considered the point put by my right hon. Friend the Member for the City of London, and I am not adverse from the words in which he seeks to carry out his views—(b) An Order for the compulsory purchase of land shall be subject to the provisions of Sub-section (2) of Section 2 of the Education (London) Act, 1903.If Mr. Whitley tells me that that is in order, I will move that Clause.
Two questions have been brought up together, the question of London, and the question of the docks and railway companies, and I think that the Committee may agree to deal with them together in the form suggested. Meantime it is best to see if the Committee is agreed on that point.
§ Mr. E. CECIL
I have an Amendment at the end of the first paragraph of Subsection (1), to add the words,Provided that nothing in this Act shall authorise the compulsory purchase of land exempt from compulsory purchase under the Housing Acts and—It seems to me that my wording is free from a great deal of the technicality to which the Attorney-General has referred and in many respects might be the simpler wording to accept, but if the Board of Education adhere strictly to their privileges under Section 20 of the Education Act of 1870, of course I realise that my Amendment is somewhat circumscribing their previous power. On the other hand, if the Committee agree to the Amendment which the Government propose, I think that it would be reasonable to ask them to say that the Board of Education do not intend or contemplate the acquisition of any of the kinds of land defined in Section 45 of the Housing and Town Planning Act of 1909—that is to say, the Board of Education do not contemplate the acquisition of any ancient monument of archaeological interest, or the property of any local authority or any railway, dock, or canal company, or land used by the public for the purpose of a park or garden or pleasure ground without its being approved of by Parliament. If that is the effect of the Attorney-General's proposal, I think we would all agree.
§ Sir F. SMITH
That is certainly not only the intention of the Government, but that is the effect of the Amendment which I have suggested. I am sorry that it seems technical to my right hon. Friend (Mr. Evelyn Cecil), but it is not more technical than it has to be to carry out the exact object which is aimed at. If that is the view taken the Amendment proposed can be withdrawn by the leave.
§ Sir J. BUTCHER
Is there anything in the Bill which, on an application by the Board of Education for the compulsory acquisition of land, prevents counsel or solicitors being heard on the part of owners of land proposed to be taken? If there is nothing to prevent counsel or solicitors being heard on such application, I have nothing more to say, but if the effect of the Clause is to prevent professional advice being taken I would like to say a few words, because it is very much in the interest of the public and of the landowner that when the land is going to be taken compulsorily he should have the 1643 right of being represented professionally. Compulsion is quite right for public purposes, but when a man is not allowed to present his ease through proper legal authority, compulsion, I think, is tyranny.
§ Sir F. SMITH
My hon. and learned Friend ought to know me far too well to imagine that I should have associated myself in any way with such a proposal as he has indicated.
§ Sir J. BUTCHER
Then there is no objection to the course suggested, and I must only apologise for having even thought my right hon. Friend capable of such an injustice.
§ Mr. RAWLINSON
I believe that my hon. Friend has been guilty unintentionally of that ghastly crime which he has just disclaimed, because the Clause provides that a local educational authority may, by means of an Order submitted to the Board of Education and confirmed by the Board in accordance with the provision contained in paragraphs (1) to (13) of the First Schedule to the Housing, Town Planning, etc., Act, 1909, and so on. Under Clause 8 of those rules it is provided that the arbitrator shall not, except in such cases as the Board otherwise direct, hear counsel or expert witnesses. This perpetrates the ghastly crime which my right hon. Friend declared was not committed. This Clause should be reconsidered by the Government from the landowners' point of view. Suppose that the local education authority desire to take a piece of land by compulsory purchase, subject to the approval of the Board of Education, and suppose that the landowner resists—and there have been unreasonable applications by local education authorities in respect of particular sites—he is entitled to a local inquiry, and in the country that need not be by an impartial man at all, but may be by a member of the Board sent down to hold the inquiry; and if the man sent down to hold the inquiry thinks the site all right he can order the unfortunate landowner to give security for costs, and after that he may order him to pay the costs of the inquiry.
The next step is that after the Order goes through the land is taken compulsorily, and how is it to be paid for? Not under the Lands Clauses Act, but under a method by which the matter is laid before the arbitrator, who is not to 1644 give anything extra for compulsory removal, and who further shall not hear counsel or expert witnesses at the inquiry. If the local landowner goes in against the Government Department to get what compensation he can, he is not to have the advantage of expert witnesses; and if he bring other people who are not expert witnesses, the arbitrator is to decide what costs the landlord is to have, if any. That is the broad application of this Clause. I assure the Committee that I have often gone into these matters before, but I am not going to rake up bygone troubles. I have seen some very bitter fighting on this subject, and I hope the former condition of things will never come up again. Under this Clause, what is the position? Supposing there is a private enterprise school carried on with nothing sectarian about it at all, the local education authority can, for some reason of their own, effect the removal of that school, and all they have got to do is to schedule the land, and take the school away. I do not think that the present Board would act in that way, but they have the power to take over the land. I do not say for a moment that they would do it, but I do point out that the Board of Education, at any time, would have the power to step in, and by simply scheduling the land, and buying the school, take it away. It is only fair to say to the Committee that the Clause contains such a power, and I am afraid hon. Members have been led away rather by the form in which the Attorney-General has put the matter before them. I do not know what Amendment is now before the House, but I have an Amendment which I might move.
§ Mr. RAWLINSON
I promise not to make my speech over again, but, as a matter of fact, I think the Amendment which the Attorney-General has put forward has not yet been formally moved. However, I urge the Government to read this Clause from beginning to end, because I can assure the Committee that it contains the vices I have indicated of legislation by reference, as does the Amendment of the Attorney-General.
§ Amendment, by leave, withdrawn.
§ Sir F. SMITH
I beg to move, in Subsection (1), after the word "acquired" ["proposed to be acquired"], to insert the words,(b) An Order for the compulsory purchase of land in the administrative county of London shall be subject to the provisions of Sub-section (2), Section 2, of the Education (London) Act, 1903.(c) An Order for the compulsory purchase of land of the nature which, by Section 45 of the Housing and Town Planning Act, 1909, is exempt from compulsory acquisition for the purposes of Part III. of the Housing of the Working Classes Act, 1890, shall be provisional only, and shall not have effect unless and until it is confirmed by Parliament.
§ Mr. BOOTH
That the Amendment has not appeared on the Paper is perhaps due to the fact that the Attorney-General did not anticipate that this Clause would be reached so early, or it may be that he was under the pressure of other work. I am sure, however, that the right hon. and learned Gentleman will realise that, where possible, it is better to have Amendments of this description on the Paper.
§ Amendment agreed to.
§ Motion made, and Question proposed, "That the Clause, as amended, stand part of the Bill."
§ Mr. RAWLINSON
I have explained the reasons why I object to this Clause. This Clause contains legislation by reference, and in its amended form it very largely contains legislation by reference. I oppose this Clause because I am convinced that it really requires further consideration from the House.
Sir M. BARLOW
I have been endeavouring to understand what the Clause means in its original shape, and now that it has been reformed, and possesses added virtues or vices, it is really difficult to understand what it really means. I think that there is in this Clause a good deal of possible injustice that the Committee is not aware of, and I ask for some assurance from the Government that they will reconsider and redraft the provision before the Third Reading.
§ Captain Sir C. BATHURST
I do not desire to enter into the merits of the case put forward so lucidly by the hon. and learned Member for Cambridge University, 1646 but I do venture to suggest that, before the Report stage, this Amendment moved by the Attorney-General should be drafted in a form so plain that it can be understood by the man in the street. I can assure the Committee that local education authorities have launched many maledictions against this House because of the mode in which it legislates by reference to Acts of Parliament. After all, hon. Members in this Committee are not all lawyers, and are very far from all having legal minds, and they want Acts of Parliament that can be easily interpreted. For that reason, and no other, I suggest that, before the Report stage, the Attorney-General should endeavour to see his way to couch his Amendment in somewhat clearer language.
§ Sir J. BUTCHER
I desire to associate myself entirely with my hon. and learned Friend the Member for Cambridge University on this question of legislating by reference. I do not think the Committee could have had a more forcible illustration, not only of the objections, but of the grave dangers of the system of legislation by reference. Here you have a Clause for the compulsory acquisition of land. That is not an unimportant matter either to landlords or the general public, and until the hon. and learned Member for Cambridge University explained what is in the recesses of this Clause, perhaps not two men in the House, or even one, knew what we were doing. The Attorney-General himself repudiated with indignation the suggestion I put forward as to what is contained in this Clause, but I submit that this dangerous system of legislation ought not to be allowed, and the Committee ought not to be asked to pass legislation without knowing in the least what is contained in the mysterious recesses of this Clause. I think my hon. and learned Friend the Member for Cambridge University has said enough to satisfy the Minister of Education and the Attorney-General that the Clause will require reconsideration. The method by which land is taken compulsorily by the local education authority is open to the severest objection. I will not go into the matter again, as it has been dealt with in detail; but I am convinced the Attorney-General will realise that this question ought not to be allowed to stand where it is. The local education authority ought not to be allowed to acquire land by the sort of method by which it can take 1647 it now. Further, the landowner ought certainly to be allowed, without requiring any legal permission which may or may not be granted, to contest the matter when it is sought to take his land.
§ Sir W. BEALE
I have had considerably over twenty years' experience of the application of the Lands Clauses Act, and perhaps I may be allowed to say a word to clear up the position. I quite agree, and we all know, that great abuses have crept in under the unfortunate practice which has grown up in connection with the acquisition of land compulsorily. This practice has been built up upon the traditions of the surveyors and people who were appointed arbitrators. The idea that you must pay a certain sum where land is purchased compulsorily is not to be found in the Act, yet that seems to be the practice. The effect of this sort of modified legislation became such that new rules were adopted, and they went to the other extreme. Clause 8 of the Act is rather pernicious, for it prohibits the arbitrator from hearing what are called expert witnesses, which means that it is not to be informed by anybody who is in a position to form a better opinion and who knows the fact. I will not say anything with regard to the professional point of view, as to representation by counsel, because my day is rather over except for sympathy with the young men who are coming on, but I do not want any bad legislation or any unnecessary costs for acquiring land for the public. I agree that this way of legislating by reference and of trying to engraft on to a bad principle a number of new Clauses does lead to confusion. I suggest to the Attorney-General that he might on the Report stage suggest some short adaptation of what we now find in the Clause.
Mr. H. SAMUEL
Nothing as a rule appeals to the House of Commons more than a denunciation of legislation by reference, and it is not surprising that the observations made by the hon. and learned Member for Cambridge University (Mr. Rawlinson) should have found an echo in different quarters of the House, but so far as this Clause in its original form is concerned I do not think it is open to objection on that ground. What is the position? The Lands Clauses Acts used to be the only means of enabling public authorities to obtain land compulsorily. Those Acts have become a public scandal, and it was recognised on all hands that 1648 their procedure was most costly and cumbersome and that it involved local authorities in the expenditure of immense sums of money whenever they wished to purchase land compulsorily. As a consequence they had to submit to the purchase of land by agreement on practically whatever terms the owners chose to ask. Parliament took the matter into consideration, and when dealing comprehensively with the housing of the working classes in 1909 it devised a new system which was carefully considered and which passed both Houses. That is embodied in the Housing and Town Planning Act of 1909. The matter having been carefully dealt with by Parliament in that year, the Government now say, "Let us apply to the purchase of land for schools the same provisions which Parliament has enacted for the purchase of land for the housing of the working classes." What could be more reasonable? The land is just as much needed for schools as for housing, and therefore the Government say in their Clause that in place of the old cumbersome procedure for the purchase of land for schools they will adopt the new procedure enacted by Parliament nine years ago, and it seems to me that the course they are taking is perfectly right. Certain Amendments have been made which are of a somewhat complicated character, and have in some degree impaired the pellucid clarity of the previous Clause, and perhaps it may be that when the matter comes again before the Attorney-General and the President of the Board of Education, between now and the Report stage they may be able in some degree to simplify their language. That is a matter which is perhaps worthy of their consideration, but I desire to dissociate myself from the attacks which have been made on the Clause itself.
§ Mr. RAWLINSON
It is clear that the Government have not realised the full effect of their Clause, and I do not suppose anybody exactly agrees with the Clause as it is now drawn.
§ Mr. RAWLINSON
Would it not be fairer if the Government were to withdraw the Clause now, I giving an assurance for my part that I shall be exceedingly reasonable on the Report stage when the new Clause cornea up? The dangers which have been pointed out 1649 have not been answered by the Government at all; the danger, for instance, of buying an opposition school, or anything of that kind. I do not believe the Government mean that that power shall be given by this Act, but not a word has been said by the President upon this question. I shall certainly divide on the question of the Clause remaining in unless some sort of assurance is given by the Government. The Attorney-General, I am sure, will not think I am criticising him unduly, because when he inadvertently gave an answer to an hon. Member he showed that none of us realised the effect of the Clause in regard to the question of hearing counsel. The Clause is faulty in two respects—first, in the method of taking compulsorily; and, secondly, in regard to compensation. I do not think it is fair to the Committee that there should be all this criticism, and that the Government should in effect say, "You can do what you like on the Report stage."
§ Sir F. SMITH
My hon. and learned Friend has indulged the Committee with two extremely long speeches, and if the subject is obscure, which I entirely deny, he has not illuminated it or contributed to its elucidation. He has been good enough to say once or twice that the Government do not understand their own Clause, to which I reply that we understand it very well, and that I am quite capable of explaining it very clearly.
§ Sir F. SMITH
My hon. and learned Friend selected as an illustration that the Government does not understand the Clause the fact that I informed my hon. Friend that solicitors and counsel could be heard. I was speaking without the terms of the earlier Bill before me, but I remembered very clearly that there was a provision that they should be heard through their agents, and I should have risen if I had had an opportunity earlier to say that it is not our intention, if it is the desire of the Committee, that they should be prevented from having the use of counsel and of solicitors. That shall be very carefully considered, with the advantage to the Government of knowing what certain hon. Members have said, between now and the Report stage. The Schedule in question permits of the 1650 appearance of parties by their agents. On the other point there is no doubt some ground for difference of opinion. The proposals of the Government are extremely simple. When you come to these particular Amendments, they were not on the Paper, but that is not through the fault of the Government, because some discussion was necessary between the representatives of the Government and those who had grievances to complain of, and when those discussions had taken place it was necessary to draw up the Amendments. There is not any obscurity in them at all, and my hon. and learned Friend has not read aloud the Section, merely making the charge that the Government's drafting is obscure. This is the Section:A local education authority may be authorised to purchase land compulsorily for the purpose of any of their powers or duties.…in accordance with the provisions contained in paragraphs (1) to (13) of the First Schedule to the Housing and Town Planning, etc, Act, 1909.As the late Home Secretary has pointed out, so recently as 1909 this House gave the greatest consideration to the question of what was the most convenient, economical, and efficient method of purchasing land for the purpose of the Town Planning Act, and it is certain that Parliament arrived at a clear conclusion after the fullest possible discussion, and there is no lack of lucidity in this Section as it stands until these Amendments are introduced, because all it says is that paragraphs (1) to (13) of the First Schedule of the Housing and Town Planning Act shall be the method by which the education authorities may acquire land. There may be other objections to it, but at any rate it is not obscure. Now it is said that these Amendments are obscure. I make the fullest possible allowance for any member of the Committee who has not had the opportunity of seeing the Amendments because they are not on the Paper, and I say at once that if any objection of form, or even of substance, emerges between now and Report, and if any of my hon. Friends can point out any respect in which they prove to be obscure, I shall be delighted to reconsider them, and to reconsider the form in which they are expressed; but when my hon. and learned Friend asks me to withdraw the Clause, the answer is that it is utterly impossible to do so, because it is the considered expression of the policy and object of the Government, and we have 1651 no intention whatever of withdrawing it. As to the form of the two Amendments, substantial considerations were put before us by highly representative and respected Members of this House. One of them has every claim to speak on behalf of the great dock boards, particularly that of Liverpool, and another of my hon. Friends was entitled to speak with authority in regard to the railway companies, and he pointed out that, although we had, under Section 20 of the old Education Act, the very power which we claim here in respect to the properties of the dock and railway companies, we could not, under Section 20, exercise those powers without coming to Parliament, and their case to us was that we ought not, by taking the powers of the Town Planning Act, to enfranchise ourselves from the obligation attached when we are dealing with their land. That seemed to be reasonable, and in these Amendments we have obliged the House of Commons, wherever we avail ourselves of the powers of the old Section 20, to be bound by the conditions of that Section. If any hon. Member will approach me privately between now and the Report stage they will find me not only willing but anxious to meet and consider any objections which they raise, but they must not expect us to abandon the Clause.
§ Clause 31 (Power to Provide Elementary Schools Outside Area) ordered to stand part of the Bill.