NEW CLAUSE.—(Amendment of s. 8 of principal Act.) (Hansard, 15 June 1933)

§ Mr. ALBERT RUSSELL
I beg to move, "That the Clause be read a Second time."
The purpose of the Clause is to alter to some extent the provisions of Sub-, section (1) of Section 8 of the principal Act. It is an attempt to try to place some limitation upon what is at present an absolutely unfettered and unrestricted power inherent in the Secretary of State for Scotland to make modifications upon the terms of an Order when that Order has been approved by the Commissioners. Under the present system power is given to the Secretary of State for Scotland to make modifications upon an Order which has left the Commissioners and has been approved by them, in respect of a recommendation either by a Chairman of Committees or any other Government Department. Having regard to the alteration which is to be made in the Standing Orders, the reports made by Government Departments upon an Order after it has been deposited with them are certain in the future to be considered by the Commissioners, and the decision of the Commissioners will have to be taken if no Amendment is made in the provisions of Sub-section (1) of Section 8 of the principal Act. If one assumes a case arising in the future where the report of a Government Department has been duly brought forward and considered by the Commissioners, and the Commissioners have reached a decision upon it, and have either rejected a suggestion or given effect to it, that ought to end the matter as far as the particular report is concerned. Under the existing legislation it is still open to the Secretary of State to get a new edition of the old report presented by a Government Department, and he may, if he likes, still modify the provisions of an Order in the terms of that report, which ex hypothesi has already been considered and disposed of by the Commissioners.
It is essential, as far as possible, that Commissioners who have been delegated by Parliament should not have their work over-ridden by a Department of State, even by the Secretary of State for Scotland, in matters where they have already reached a decision after due consideration. The purpose of the proposed new Clause is to ensure that any further modifications of an Order after it has left the Commissioners shall be confined to 344 matters arising in a report from a Government Department dealing with modifications of the Order made by the Commissioners themselves, and which the Government Department had not had an opportunity of considering when the original Order was deposited. When legislating for the future of this very important branch of private legislation procedure, one should, as far as possible, be sure that the powers of Parliamentary Commissioners are not interfered with after they have reached a decision. The purpose of the Clause is to make sure that the powers of modification of the Secretary of State shall be restricted to such recommendations which he has received from a Government Department in relation to modifications of the original Order made by the Commissioners during the course of the inquiry. While one cannot hope that all power of modification should be removed from the Secretary of State, the proposed new Clause seeks to preserve his power to modify, but only in respect of all matters which may have arisen consequent upon a modification of the original draft Order deposited with him.

§ The SOLICITOR - GENERAL for SCOTLAND
The purpose of the proposed new Clause, as I understand it, is to allow the Secretary of State, when he is considering whether to introduce a confirming Bill, to have regard to any recommendations by the Chairmen and by the Commissioners, whatever may have been the past history of the provisional Order. It will provide further, though it is not expressly stated, that he shall not have regard to the recommendations of any Government Department unless there has been some modification of the provisional Order by the Commissioners after they have drafted the provisional Order and have held their inquiry. As things stand at present, a large discretion is permitted, and I think rightly permitted, to the Secretary of State to consider, not only any recommendations by the Chairmen and by the Commissioners, but also by Government Departments. The history of the use of this power is, I think, its justification. I do not think that it has been used in any autocratic way. Since the Second Reading Debate my right hon. Friend and I have con- 345 sidered the cases in which that power has been exercised during the 15 years since 1918.
It is true to say that the policy of successive Secretaries of State has been to attach the greatest weight to the recommendations of the Commissioners and the greatest importance to maintaining their authority. In every case where the Secretary of State has had to consider his attitude, he has in recent times consulted the chairman of the Commissioners wherever possible. Many of the modifications which are introduced at that late stage and taken into account are alterations or modifications which the promoters and other parties have themselves invited in consequence of some error or omission which took place in the proceedings before the Commission. It is most important that that power should be fully retained. I have been able to trace only one case in the last 15 years which would have been struck at under the proposed new Clause. It was a case where a Government Department, namely, the Ministry of Transport, recommended in their report that a certain Clause should be added to the provisional Order. The recommendation was rejected by the commissioners, and the new Clause was not in fact added by the commissioners. It then came under consideration by the Secretary of State at the time, and he incorporated the new Clause in the provisional Order, the reason being that it appeared that the omission of the new Clause had been made in error, the commissioners having been led to suppose that that Clause would only be necessary if another Clause were incorporated in the Provisional Order. In point of fact the other Clause had not been incorporated. That was however a misapprehension. It was necessary to correct it by the insertion of a new Clause at the invitation of the Government Department concerned. It was inserted. It met with no objection, and it has been a necessary and a beneficial part of the Order.
That is an illustration of the kind of case which arises, and which requires that the discretion of the Secretary of State should not be trammelled in the way suggested in the proposed new Clause. The most careful consideration has been given to the proposals of the Clause, and the conclusion has been 346 reached by my right hon. Friend that he is unable to accept it. He, however, authorises me to give to the Committee the assurance that under the new conditions which this Bill will create his discretion will be exercised as cautiously and sparingly as in the past, and, in particular, the fullest respect will be paid to the views of the commissioners. I think that with that assurance there may be general concurrence in the considered opinion of the Government that the Clause proposed is not required, and that the existing procedure should be preserved.

§ Mr. J. REID
At first sight I cannot help feeling a great deal of sympathy with the objects of the proposed new Clause, but I feel that there is great weight in what the Solicitor-General for Scotland has said. There is the additional point, which perhaps may be borne in mind in not pressing the Clause, that under this procedure, unlike procedure here, there is only one inquiry. There is no opportunity for omissions in the first inquiry to be put right in a subsequent inquiry before a Committee of the other House. As there are not these two inquiries in Scotland which are open to any party interested in a Private Bill in London, it seems to me that there is considerable justification for the Secretary of State being entitled after the first inquiry to make such Amendments as are necessary. I think the matter is kept in order by the undertaking given that this power will only be used in cases where it is really necessary, and I imagine that it will only be used in most cases with the consent of the promoters or other persons interested in the Amendments. Therefore, I think it would be unwise to press the new Clause.

§ Mr. ALBERT RUSSELL
In view of the statement made by the Solicitor-General I am impressed by the desirability, in the interests of all concerned, of some power of revision being retained in the hands of the Secretary of State. I see the difficulty of endeavouring to fetter his hands in the way that the new Clause proposed. I am grateful for the assurance that has been given that if the power of modification is left in the hands of the Secretary of State, as hitherto, it will be exercised with that wise dis- 347 cretion with which it has been wielded in the past. Therefore, I would ask leave to withdraw the new Clause.