HC Deb 15 July 1930 vol 241 cc1196-204
Major ELLIOT

I beg to move, in page 31, line 33, at the end, to insert the words: Any order made by the Department under this section shall be forthwith laid before Parliament, and if within thirty days either House resolves that the order should be annulled the order shall be annulled, but without prejudice to anything done thereunder. This Clause gives the Department very wide powers and no doubt necessarily. But it gives the Department powers to take back from the local authorities of the country powers which have been entrusted to them by this House. That is to be done only in the case of very grave default. The Department has to take several steps. First of all complaint has to be made to it by four or more local government electors of the district. Then the Department may cause a local inquiry to be held. Next it can make an order, declaring the authority to be in default, and directing it to exercise such of the powers within such time as may be specified in the order. If the local authority fails to comply with any requirement thereunder the Department may go through certain procedure, and this is the important point: The Department may make an order rendering exercisable by themselves such of the powers of the local authority under the principal Act as may be specified in their order. We have moved our Amendment to indicate that the attention of the country should be called to the default of the local authority. The final engine upon which the Government must rely in such cases is the pressure of public opinion. It is desirable to mobilise public opinion against a defaulting authority. The steps which the Department take will undoubtedly demand that the Department should have the backing of a strong and almost unanimous public opinion. One of the ways in which public opinion is brought together is on the Floor of this House. The proposal made here is in the usual form—that an order made by the Department should be laid before Parliament, and thereupon should be acted upon by the Department unless a Resolution is passed against the order in question. That procedure has been put into many other Acts passed by Governments of various complexions, and I do not think it can be said that that procedure has ever been abused. Somewhat to my surprise the Under-Secretary last night waxed rather heated about this Amendment and said that we were desirous of limiting the powers which would be exercisable in case of default. I think that to say so is to misinterpret this Amendment. Our proposal is that if a local authority is being proceeded against, that should be done openly and publicly and if the local authority has any defence that the defence should be brought out here on the Floor of the House.

I think it very improbable that a local authority in such circumstances could put up any defence. If all these steps had been taken and if it was still desired by the Department to go forward against the local authority, then, no doubt, the local authority's default would be of such a, flagrant character that it would not be able to put up any defence at all. Still, one has known cases where proposals which have seemed more than reasonable to those in authority have not seemed so reasonable to the country as a whole. It is a sound proposition that no man should be judge in his own cause but here the Department is being placed in the position of acting as judge in its own cause. That is an unsound position for the Department and for the Minister and it is an unsound position in relation to the steps which it is proposed to take against local authorities in such circumstances. People vary in their positions in this House. Sometimes the Government of the day is drawn from a party of one complexion and sometimes from a party of another complexion. When one is in the seats of power all one's acts seem so reasonable that it is impossible to conceive of any reasonable being objecting to them, but the time may come when hon. Members opposite will be sitting on this side of the House. [HON. MEMBERS: "A long way off!"] Hon. Members should not be too confident. We may yet see the Liberal party again on the benches opposite, and hon. Members may be sitting here and they may find steps being taken by a Government of a different complexion from their own to which they are strongly opposed. In those circumstances they might regret that there was no opportunity of raising the matter by means of a discussion on the Floor of the House of Commons which is the way in which such questions should be raised.

The Amendment would not have the effect of delaying the Government or the Department in the steps which they desire to take. As I say, the default which would lead to these extreme powers being invoked would necessarily be flagrant and long-continued, and the question of 30 days will not seriously prejudice the proper settlement of the cause at issue. I think this procedure which has been inserted in so many other Acts might reasonably be included in this Measure, more particularly from the constitutional point of view, seeing that the Department is here proposing to take back by Departmental order powers which were entrusted to local authorities not by the Department but by the Act of this House. It is by the Act of this House that these local authorities exercise their powers, and if they are in default in the use of those powers the attention of this House ought to be called to their default, not merely for the sake of dealing with the default itself but for the sake of remedying other grievances which though not so flagrant it may be desirable to bring under review.

Mr. MacROBERT

I beg to second the Amendment.

Mr. JOHNSTON

We attach very considerable importance to the powers which we are asking for in this Clause and the hon. and gallant Gentleman has apparently forgotten that the powers of which he is now seeking to deprive the Department are already in the law of the land. In the Housing (Scotland) Act, 1925—the Consolidation Act—for which his Government was responsible, Clause 41, Sub-section (2), contains the following: If the local authority fail within such time as may be prescribed by the order to make an improvement or reconstruction scheme to the satisfaction of the board and to carry the scheme into execution the board may themselves make and take such steps as may be necessary to carry out a scheme. We attach considerable importance, indeed, to the retention of those powers. It is not that any Government in its senses would ever hastily seek to exercise those powers, but it is the very fact that those powers are in reserve, the very fact that the Department and the Government of the day possess powers, in the national interest, either to take the defaulting authority, with the consent of the Lord Advocate, to the Court of Session, or to go themselves as a Department into the area of the defaulting local authority and do the job—it is the fast, I say, that these powers are in reserve which we regard as of considerable importance. There are, as the hon. and gallant Gentleman knows, authorities in Scotland in regard to whom we must, in the national interest, have some sort of ultimate power of compulsion. There are counties in Scotland in which there has not been a single house built under a State-assisted scheme, in which the Department has tried to use persuasion, month after month and year after year, and despite the powers which we now possess we have hitherto been unable to induce those authorities to do their duty. There is one local authority with whom we are in communication at this moment and we have intimated to them that unless they take the necessary steps to prepare a housing scheme, in view of the terrible state of affairs to which their attention has been drawn by their own medical officer of health, we shall be compelled, in the national interest, to exercise what powers are at our disposal now.

It would be a matter for regret if the House should take away from the Department or minimise in any way the powers which the Department presently possess—powers given them by a Conservative Government—to exercise compulsion in the last resort upon a defaulting local authority. The hon. and gallant Gentleman says that it is only a matter of 30 days, but it is 30 days in two Houses of Parliament and either House can annul the Order. No Government or Secretary of State would ever dream of going into the area of any local authority unnecessarily and incurring all the odium that would accrue. No Secretary of State for Scotland would desire to do that and to stand here to be shot at in the House of Commons by the local representatives of that area and, indeed, by the Opposition. The House has the fullest possible power. The Opposition can at any moment demand a Vote of Censure on the Government for any wanton unnecessary, unjust, unfair, unreasonble exercise of these powers. This House is supreme, and remembering these facts, I trust that hon. Members will not seek to deprive us of the ultimate weapon, the ultimate power which we have now, which previous Governments have possessed and which was granted by a Conservative Administration. I trust that the hon. and gallant Gentleman and his Friends, upon further consideration, will decide not to seek to weaken the Department in any way in its struggle on behalf of better housing system in Scotland, but will rather give us all the powers necessary to secure the end which we are seeking to achieve by this Bill.

Mr. MacROBERT

The Under-Secretary assumes that the Department are always wiser than the local authorities. This Clause refers only to the Act of 1925. These particular provisions are not meant for this Bill as a whole, but refer only to certain provisions in the Act of 1925. As I read this particular Clause, it does not help the Government at all with regard to the provisions in this Bill.

Mr. JOHNSTON

The quotation which I read from Section 41 (2) of the Act of 1925 is the law now, and we are only asking that we shall have similar powers for schemes under this Bill.

Mr. MacROBERT

I am bound to say that I read this Clause differently from the Under-Secretary. May I draw his attention to the beginning of the Clause, which says: In any case where— (i) a complaint has been made to the Department"— Then follow paragraphs (a) and (b), and it goes on to say: that the local authority have failed to exercise their powers under the principal Act. The Under-Secretary's argument was that he wanted the same powers in this Bill as the powers that have been given under the Act of 1925. This Clause deals only with the Act of 1925, if my interpretation is right. I see that there is something in the point I am making, because it is not contradicted. I may be completely wrong, but the hon. Gentleman will see, if he reads it, that this Clause appears to be limited entirely to the powers which the local authority have failed to exercise under the Act of 1925, and it is repeating the powers which are in the 1925 Act. If this Clause were intended to give power to the Department with regard to the failure of duty of a local authority in respect of this particular Bill, the phraseology would require to be different, but I may have misread it and it may be corrected later on in the Bill.

The other point which I wish to make is that here you have the local authority taking one view and the Department taking another view. It does not seem very fair that the Department should be able to say, "Our view is the right one, and yours is the wrong one." I could follow that if power were given to the Department, if they did not agree with the local authority, to do the work and pay for it themselves. Under an order of the court under Sub-section (2, a) of this Clause, however, the Department may do the work themselves, and claim the whole expense from the local authority. That comes to the same point, namely, that the local authority are being forced to do it against their own opinion. All I suggest is that if you have a responsible local authority of one opinion, and the Department of another opinion, there should be some kind of power that can determine that one or the other party is right. The Amendment simply says that, if the Department are wrong, the local authority shall not be forced to do what is wrong.

The LORD ADVOCATE

As regards the point first raised by the right hon. and learned Gentleman, I am bound to say that I think he is right on his reading of Sub-section (1, i) of this Clause, because the words are: In any case where a complaint has been made to the Department …. that the local authority have failed to exercise their powers under the principal Act. I do not see any way of getting round the word "principal," and therefore I think that my right hon. and learned Friend is quite right about that. Certainly something wider was in contemplation, and we are very much obliged to the right hon. and learned Gentleman for drawing our attention to it. It will be carefully considered by the Government, and we will try and give effect to the intention which we had in view by having the matter put right in another place.

That does not meet the other point as to whether it is desirable to set up Parliament as an appellate tribunal under this Clause. There is a great deal to be said for setting up Parliament as an appellate tribunal, but, if the Amendment were given effect to, you would be setting up another place as an appellate tribunal, and giving to another House absolute power to veto and annul any order that the Department might make in regard to a matter of this kind. That is a proposal to which the Government cannot consent for a single moment. It might have been another matter if it had been proposed that this House should have the final say, but that is not the proposal, and we cannot consent for a single instant to a proposal that would give power to people in another place to render nugatory any steps which the Department might take under the provisions of this Bill.

Major ELLIOT

I am sure the Lord Advocate will agree that the intervention of my right hon. Friend has been of assistance to the House as a whole and that it goes some distance to clear up a point which had been left obscure by the drafting of the Bill. It is another example of the fact that we cannot always be right, and that it may be very reasonable that a certain court of appeal, in this case the Opposition, and in another case Parliament, should be brought in. The right hon. and learned Gentleman has decided that the matter can be brought up in another place and considered. Does not that in some way modify his opposition to the other point we brought up? He says the danger is that another place may be unjust, unreasonable and harsh but at this moment he has to say, "The House of Commons has failed. We were not able to put this right in our drafting—the Department was wrong; we have not been able to put this right through our Law Officers—they were wrong; we have not been able to put it right in the Scottish Grand Cornrnittee—they failed; we cannot find a way of putting it right on the Report stage; but it does not matter, because another place still remains, and we will put it right there!"

Does that not all indicate that perhaps the right hon. Gentleman's apprehensions as to another place may be unreasonable? In the case of the Local Government Act it was left open to either House of Parliament to present a Resolution to nullify what was proposed, and I do not think he can point to any cases where that procedure has been abused. I go so far as to say that we attach considerable importance to the making of such an Order and that we should be ready to consider any suggestions the Government brought forward to deal with it; but the fact that at this late stage of the Bill a point of considerable substance has been brought forward and that the intervention of another place will be necessary to put it right, and that the Lord Advocate has perfect confidence that it will be put right there, does indicate that the procedure we propose is not an unreasonable procedure. That he has conceded that some sort of appellate court is reasonable does show that this Amendment is neither a frivolous nor a time wasting one. However, I do not propose to press the matter further at this stage, and I will ask leave of the House to withdraw the Amendment.

Amendment, by leave, withdrawn.