HC Deb 16 July 1918 vol 108 cc950-9

(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, 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—

  1. (a) the Board of Education shall not confirm any such Order even when unopposed if they are of opinion that the land is un-suited for the purpose for which it is proposed to be acquired:
  2. (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) of Section two of the Education (London) Act, 1903;
  3. (c) an Order for the compulsory purchase of land of the nature which by Section forty-five of the Housing, Town Planning, Etc., 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.

(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.


I beg to move to leave out the Clause.

This is a Clause upon which there will possibly be some concession made by the Government. It is a very drastic Clause. It gives power to the local education authority, with the consent of the Board of Education, to take land compulsorily anywhere without coming before Parliament at all. At the present time you have to get a Provisional Order, and that naturally comes before Parliament. Under the Bill the local education authority, with the consent of the Board of Education, may take land anywhere without coming before Parliament. There are two people who will be affected. There is, first, the ordinary landowner, and there is, secondly, the premises which are already used as a school, and which may be thought by the local education authority to be more or less in opposition to the schools which they are setting up. The only remedy which the landowner or the schoolowner has is that he may demand a local inquiry, which will be held by a gentleman sent down by the Board of Education. The Board of Education before doing that may require him to deposit money by way of security for the costs, and if the gentleman who holds the inquiry thinks right he may require the landowner to pay the costs of the inquiry. Therefore, the protection to the landowner is very small indeed, and I feel that it is a matter which ought to be brought before the House. It is quite outside the realms of education, and it goes much further than the present Act. Supposing compulsory power has been obtained in that way, and an Order has been made by the Board of Education, and has been carried into effect, the landowner or the schoolowner, of course, has the right of compensation. It does not come under the Land Clauses Act. He is told to apply under the same system as that contained in the First Schedule of the Housing and Town Planning Act. The House will remember how hard the Clauses of that Act were fought and discussed, but there was one Clause which was brought up in Committee, and in regard to which I understand the right hon. Gentleman to say that he would do something. Supposing a landowner has his land taken compulsorily, he has no right, under this Schedule, to be represented by counsel or by expert witnesses. It sounds a very popular thing in one sense to say that counsel should not appear, but since that Section was put in the Act of 1909 we know that in practice it is not so popular as it appears to be. It may be an act of grave injustice to people who own land who may not be able to present their case themselves as they wish it to be put before the Court. It is a question of prin- ciple that a litigant—it is not a question of getting costs out of the other side—in an inquiry connected with land should be entitled to have his case presented by any person whom he chooses to retain. I am aware that I am laying myself open to the charge of being in favour of my own profession. I agree that to that extent I am prejudiced, but, apart from that, it is necessary, as a matter of essential justice, because the House will see that the Clause may be worked with injustice to the landowner. I had hoped that the President would have put down some Amendment on the Report stage to meet one of these points. The Clause hits not only the landowner, who ought to be protected in these cases, but the compulsory power may be used against schools which exist at the present time. I hope sincerely that there will not be friction in the educational world in the future. There has been friction in the past, and it is possible that competition may engender friction in a particular case. If the Government cannot see their way to assist me by withdrawing the Clause and redrafting it, as I had the audacity to ask them to do in Committee, I would ask them to put in words which would prevent the Clause applying to the compulsory purchase of land or houses used for educational purposes, and also providing that where a school exists the local authority should not have the power of acquiring it compulsorily against the wish of the owners or management. I hope also that the Government will put in an Amendment eliminating that part of the Schedule of the Act of 1909 which prevents a landowner being represented by counsel if he chooses to employ one.


I beg to second the Amendment.

The ATTORNEY-GENERAL (Sir Frederick Smith)

My hon. and learned Friend, whom I used to know well in the days when we hunted in couples, is very pertinacious on my trail. He has to-night addressed to the House again the arguments he so forcibly put before us on the Committee stage, yet I cannot help thinking that the answer I made him when we discussed this matter with great fulness in Committee was an adequate answer. What I tried to explain then was that the policy of the Board of Education imperatively required that there should come into existence powers for acquiring land. The plots of land in most cases that have to be acquired are quite inconsiderable, but it is absolutely impossible, so I am told by those who understand these things, that the efficient development of educational work in this country, which everybody professes to desire, and I believe honestly desires, can be attained without them. There is a postulate. Some means has to be devised of obtaining land compulsorily. Many alternatives present themselves for doing that. There are many ways in which a public Department can take land compulsorily. There are the Lands Clauses and the Lands Clauses Acts. I do not believe that the Lands Clauses Acts have any friends in this House but the lawyers—I am certain of it. I speak as one who can say, without any exaggeration, that I made thousands of pounds out of the Lands Clauses Acts. I have not the slightest doubt that, if Parliament is foolish enough to tolerate an unexpurgated survival, I shall make thousands of pounds more. Certainly as long as I discharge a public duty I shall not recommend any public Department that has to acquire land to secure that land by the machinery of the Lands Clauses Acts. I do not know that in saying that I shall command the assent of my hon. and learned Friend, who is so adroit an advocate in these matters.


May I point lout to my right hon. and learned Friend that you cannot acquire land compulsorily under the Lands Clauses Acts? You have to get an order of the Court, and even the Government itself has to get a Provisional Order.


Does my hon. and learned Friend really imagine that it is more difficult to obtain an Order than it is to obtain statutory powers in the shape in which I am seeking to obtain them now? There is no difficulty in obtaining an Order if Parliament assents to the principle that we must compulsorily obtain land and decides in favour of that particular method of acquiring it which we call the Lands Clauses Acts. Let us dismiss that. As we dismiss that, the question arises, how are we to give the Board of Education the powers which everybody agrees they should possess, or rather to which the House by a large majority has agreed to give them? We have followed the method of incorporating by reference the provisions of the Housing and Town Planning Act. We heard on the Committee stage long and eloquent invectives against the practice of legislating by reference. I am not one of those who is content with legislation by reference, which renders the matter really unintelligible. But when that is conceded, do not let us go too far in that direction. There is just as much nonsense talked against legislation by reference as is talked on the other side. If you were to incorporate in a Bill twenty or thirty provisions that have been quite clearly stated in an earlier Act, and which, by simple reference, can be clearly understood, no draftsman who has not lost his senses, especially in these days of the shortage of paper, is going to repeat the whole of those twenty or thirty Clauses in the Bill. There are cases in which legislation by reference does not add in any way to confusion of thought. I do not describe this Clause as belonging to one class or the other. There is no Member of this House so unacquainted with the steps which are necessary in order to ascertain the language of an Act of Parliament. He can, by taking this volume in his hand, understand what is meant.

Let me answer what my hon. and learned Friend says in regard to the employment of counsel. It is quite true, as he has said, that in cases where property of any importance or magnitude is being dealt with, in the view of the Government, and I am certain that would be the view of the House as a whole, it is undoubtedly desirable that those appearing as parties in such matters should, if they desire it, have the advantage of retaining counsel. I must point out to my hon. and learned Friend and to the House that at the time the Housing and Town Planning Bill became an Act—in the discussion of which Bill both my hon. and learned Friend and I took part—the whole matter was gone into with the greatest care by the House of Commons. I may add that in the case of that Act you were dealing with the acquisition of very large pieces of land in the main. Here we are dealing in the main with the acquisition of very small pieces of land. Take the case of a piece of land worth about £50 or £60. My hon. and learned Friend knows perfectly well—he is far too candid a Member of this House not to concede it—that if one party has counsel appearing for him in dealing with a small piece of land like this, those who appear on the other side immediately say, so great is still the influence of the prestige in the mind of the litigant on the other side, that the immediate reply on the other side is, "They are having counsel; we must have counsel too." It is just the same if a leading counsel is employed on one side. Immediately the other side says, "We must have a leader too." Wherever these pieces of land are acquired it is very likely that counsel would be employed. When I was first asked the question I was under the impression that under the terms of this Bill we were reducing the occasions upon which counsel could be employed. The fact is that we are allowing the employment of counsel in exactly the same circumstances as they can be employed under the Housing and Town Planning Act. My hon. and learned Friend said that I had given some sort of assurance on the Committee stage. There is no one more anxious than I that anything I undertake to do should be carried out not only in the letter, but in the spirit. Here is exactly what I said: 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."—[OFFICIAL REPORT, 2nd July, 1918, col. 1649, Vol. 107.] I have given very careful consideration TO this matter, and those with whom I act, and who on such a point it is my duty to advise, have come to the following conclusion—I hope it will satisfy what my hon. and learned Friend has in mind: We do not think, after the most careful consideration, that it would be in the public interest, or, on a long view, in the private interest of the litigant himself, that in some of these cases, which will be meticulously small, they should have the right to engage counsel. But my hon. and learned Friend will observe that paragraph (8) of the First Schedule of the Housing and Town Planning Act contains the following provision: The person holding the inquiry or arbitration shall hear, by themselves or their agents, any authorities or parties authorised to appear, and shall hear witnesses, but shall not, except in such cases as the Board otherwise direct, hear counsel or expert witnesses. The House will observe that the Board, which, under the terms of legislation by reference, means in this case the Board of Education, can otherwise direct. That is to say, in every case the Board of Education can give direction that counsel shall be heard. Let me state to my hon. and learned Friend, as I do with the full authority and acquiescence of my right hon. Friend the President of the Board of Education, what I think he will regard as a satisfactory assurance. I assure my hon. and learned Friend that, while it is not the policy of the Board that counsel should be employed in small cases, it is the intention of my right hon. Friend, and I so declare the policy of the Board of Education, that in all cases which can fairly be described as serious cases—my hon. and learned Friend knows perfectly well what I mean—cases of reasonable magnitude, it is and will be the policy of the Board to direct that the parties, if so advised, may have the assistance of counsel. I hope that will satisfy my hon. and learned Friend. If it is generously construed, he will be the first to admit that it gives him all he desires. On the main point of the Motion, which is to leave out the Clause, may I ask my hon. and learned Friend and the House to remember that on the Committee stage this Clause was passed after very full discussion. Everybody who desires to see achieved the objects which the supporters of this Bill have declared to be its objects in the various stages of its Parliamentary progress must recognise the immediate necessity, the moment the War is over, of securing these pieces of land. If my hon. and learned Friend is not satisfied with the method of acquiring the land which is proposed, and which represents the latest Parliamentary method considered best for the purpose, he must discuss some other method. We are of opinion that, on the whole, this is the best method. If it is administered, as I am sure it will be, with wisdom and common-sense, there will be the minimum of friction and the maximum of public service.


Will my right hon. Friend deal with the point of giving power for the first time to a Department to take land without coming to Parliament?


Even if I assumed that my hon. and learned Friend's postulate is well founded, it would not in any way follow that we are doing an unreasonable thing. If the Legislature has authorised various private individuals, under certain circumstances and with certain safeguards, to acquire land, how can it be pretended that it is unreasonable that a public Department, with all the safeguards that we have given here, and the Public Department that it responsible for education, should not be allowed without coming to Parliament in each individual case to take general powers?


I want to support all that the Attorney-General has said in regard to this Clause. I am Chairman of a Committee appointed by the Prime Minister a year ago, comprising Members of this House and a number of distinguished gentlemen not in this House, to advise on the whole question of the acquisition of land for public purposes. We have published a Report, and the evidence that we have had is conclusive as to the extremely dilatory and expensive character of the machinery now available to the Board of Education for the acquisition of land for educational purposes. The evidence as to delay is stronger than I thought possible. If I remember rightly, the average length of time it takes to acquire a school site and to get the school going under existing circumstances is over three years from the decision that a school is wanted in the district. The case is absolutely clear that some simplification of procedure is necessary. The Committee regards this proposed procedure as as good and simple as any other. My hon. and learned Friend (Mr. Rawlinson) asked whether there was a precedent in any legislation for any Government Department having power, without application to Parliament, to get an Order for the compulsory acquisition of land. There is, in a measure which was passed in one year, then repealed and re-enacted in an extended form in the next year, the Small Holdings Act of 1908, under which county councils can acquire land on the Order of the Board of Agriculture without any appeal to Parliament at all. I think that procedure has hitherto worked well. This is as good a form of procedure as any hitherto known to legislation in this country. I would not support a proposal to put into such a Bill as this an entirely novel method of procedure. I should very much prefer to adopt a method which has already been in use for a considerable number of years and been found to work well in practice. From my own point of view as chairman of the Committee, I want to say that I hope we may be able to advise a simplification of procedure, not only in regard to the acquisition of powers which we have already done in the Report we have issued, but also in regard to the machinery for the assessment of compensation and, so to speak, the taking possession of the land in respect of which acquisition powers have been obtained, and when that simplified procedure is considered and, as I hope, at some time a Bill presented by the Government, I hope a general system, equally simple, for all purposes may be adopted in connection with the acquisition of land. By supporting the particular proposal in this Bill I must not be understood as in any way saying I regard it as necessarily the best for all purposes, when the general question comes to be discussed of the acquisition of land for public purposes. But subject to that one qualification as to the future, which may be regarded by those who are opposed to this proposal as a loophole of escape, in that they will hereafter, as I hope, have an opportunity of reconsidering the whole question on its merits, I very strongly support what the Attorney-General has said, and I hope the House will see its way to pass this proposal as a really effective and simple procedure.


I think the House will be extremely glad and somewhat surprised to have heard the statement of the Attorney-General. I and my friends look with extreme pleasure upon his denunciation of the Lands Clauses Consolidation Act of 1845, under which more robbery of the public has been committed than probably under any other Act of Parliament. But I do not think I can join in the great praise of the right hon. Gentleman on the ground of his altruism as a lawyer. He knows perfectly well that the Lands Clauses Act is a bad Act, and he has nobly got up and said it shall not be incorporated in this Bill. But no one knows better than he, or the hon. and learned Gentleman (Mr. Scott), that, whatever we may say, when the Bill comes back from another place it will contain a reference to the Lands Clauses Act. Regularly it is put back into Bills and accepted in silence by a disappearing House, and the principle is again established that, whatever party may rule in this country, the House of Lords has the last word as to what is in any Bill concerned with land. Therefore the little protests made by the Attorney-General to the request made by the hon. and learned Gentleman (Mr. Rawlinson) are all in vain and are all quite useless. This proposal will, we know, become the law in spite of any demonstration or camouflaged efforts in Liberalism on the part of the Front Bench. The hon. and learned Gentleman (Mr. Scott) told us what his Committee were going to advise about facilitating the purchase and acquisition of land. Neither I nor any of my Friends are represented on the Committee, but we have very strong views on the methods of the acquisition of land by Government Departments.

Amendment negatived.