§ 4.46 p.m.
§ Mr. HORE-BELISHAI beg to move, in page 8, line 1, to leave out Subsection (4), and to insert:
(4) If any applicant for consent is aggrieved by any decision of the highway authority under this section withholding any consent or imposing any condition he may appeal to the Minister who, after consultation with the Minister in charge of any other Government Department concerned, may make such order as he thinks fit, and the decision of the Minister shall be final:Provided that before determining any such appeal the Minister shall, if required either by the highway authority or by the applicant, cause a local inquiry to be held in public, and in giving his decision upon any such appeal the Minister shall publish a summary of the facts as found by him and of his reasons for the decision.In moving the Amendment I will offer a few considerations which I hope will weigh with the Committee when they form their judgment upon this important matter. This Bill makes a fundamental 2335 alteration in the law and practice to which we have grown accustomed. It removes in terms certain rights previously enjoyed by individuals to control development alongside the roads and puts the control henceforward in the hands of the highway authorities, the objects being to minimise the present dangers to life and limb which result from the erection of houses and buildings with their own means of access at innumerable and ill-considered points along the road, to remove the obstruction to the free passage of traffic and to prevent the further impairment of the setting in which the roads lie. Consequently, it will become illegal, generally speaking—I am not dealing with the precise nuances of exemptions in favour of agriculture and other interests—to build on or to make access to a road without consent. That procedure is the only way open to us to check the present evils, of which much complaint is made. It is the procedure of transferring from the individual to the highway authority control of what is to be done along the sides of the roads.When the Bill was introduced it contained a provision that appeals against refusals of consent which the highway authority has power to withhold or make conditional should be to the Minister, as the overlying and co-ordinating authority responsible to Parliament for the success of this Measure. An Amendment, however, was inserted in Committee which, while not removing the responsibility from the highway authority and the Minister for making a success of this Measure, nevertheless took away from them the power to make it successful and transferred appeals to the petty sessions and from the petty sessions to the quarter sessions. The Amendment was advanced on the ground that it was the fulfilment of the recommendations of the Committee on Ministers' Powers. We have since seen published a letter from the chairman of that committee, which appeared in the "Times" and made it plain that the argument that the Amendment was fulfilling the recommendations of that Committee was a complete misapprehension. I will read part of the letter, which I have no doubt will be taken into account by hon. Members, and extracts from the Report, which was quoted, I think wrongly quoted, upstairs. This is the 2336 letter of the chairman of the committee who, it will be acknowledged, speaks with some authority upon the subject:
We never doubted for a moment that executive or administrative decisions depending on policy lay within the true functions of Ministers.They never doubted that.It was only justiciable disputes on fact or law which we said should in the normal case be dealt with judicially by a court. The questions as to whether it is right or wrong in regard either to traffic dangers or the preservation of amenity that ribbon houses should be built alongside a highway, or that access from them should be allowed to the highway anywhere and everywhere or only at stated intervals, are questions of public policy which are wholly, or at least in the main, administrative and not justiciable.I need not read the whole of the letter, which simply gives emphasis to the passage which I have read. Reference to the Report itself will show, on page 93, that the Committee concisely stated its opinion when it said:A decision which ultimately turns on administrative policy should normally be taken by the executive Minister.I imagine that no single person will deny that the building of a road, with conditions of safety and the determination where access to buildings should be along that road, is an administrative matter, involving no question of law, for the law is here, in this Bill, and no question of fact, because the highway authority has or has not as a fact given or refused consent in any particular case. The Committee further, on page 114, draws a clear distinction between those powers which are purely judicial and those which are quasi-judicial or administrative only.
§ Mr. H. WILLIAMSIs the case that consent has been unreasonably refused a question for judicial determination or not?
§ Mr. HORE-BELISHAIt is certainly not a question for judicial determination. Parliament, if it passes this Bill, will have decided formally, and with all the authority that it can command, that there shall be no building within the limits laid down in this Bill alongside a road, nor shall there be access except at such points as shall be allowed by the highway authority. In other words, it is seeking to reverse the whole of the present procedure, whereby anybody may build and anybody may have access wherever he or she may desire. It 2337 becomes, therefore, a purely technical question for the surveyors in charge of the construction of the road to determine henceforth where points of access shall ideally rest. I may revert to that question in a minute or two, having paused to answer the question, addressed to me.
I was saying that the Committee draws a clear distinction between those powers which are purely judicial and those which are quasi-judicial, a distinction which was quite obliterated from, the recognition of my hon. Friend the Member for Hitchin (Sir Arnold Wilson) in the interesting and able letter which he had in the "Times" this morning. He quoted the judicial passages, the passages in the report which referred to judicial disputes and not those which referred to administrative disputes. The Committee say that both those classes of disputes, the judicial and the quasi-judicial,
involve a dispute between parties, the presentation by the parties of their case, and the ascertainment of the facts underlying the dispute by means of evidence adduced by the parties themselves. But a judicial decision is one which must be based on the application of the law of the land to the facts so ascertained; whereas in the nature of things that can never be the basis of a quasi-judicial decision, for a quasi-judicial decision involves considerations of public policy, and in the last resort the decision is not a decision as to the respective legal rights and obligations of the parties, but a decision as to what it is in the public interest to do.On page 115 the passage continues:When all the facts have been ascertained and the contentions of the disputants have been appreciated, the question in the last resort is a question of public policy.We have expressed the opinion that quasi-judicial decisions fall properly within the province of executive Ministers, who are responsible for policy and should control, direct and administer it, and that such decisions should not ordinarily be assigned to any tribunal other than the Minister.Finally, we have the committee's recommendations, on page 116:Quasi-judicial decisions fall naturally to Ministers themselves and not to Courts of Law or Ministerial Tribunals.Every Minister exercising a judicial or, quasi-judicial function and every Ministerial Tribunal exercising a judicial function should give the decision in the form of a reasoned document.Those recommendations we carry out in this Amendment.
§ Mr. DINGLE FOOTDoes the right hon. Gentleman really say that he is carrying out the recommendations of the committee by this Amendment? Does he not know that they also recommend that the inspectors' reports should be pubished to the parties concerned?
§ Mr. HORE-BELISHAIf my hon. Friend can show me that I am not carrying out the recommendations of the committee I shall be obliged, but he might allow me to pursue my argument instead of favouring the House with his opinions in the middle of my speech. He must know that those opinions are bound to suffer somewhat if they are presented in a disjointed manner. I say we are, in this Amendment, carrying out the recommendations of the committee. We say in the Amendment that the Minister, "after consultation with the appropriate Department"—that is to say if it is a mining matter, the Mines Department, if it is a health matter, the Ministry of Health, and if it is an agricultural matter, the Ministry of Agriculture—"may make such order as he thinks fit." We propose to insert those words in order to increase the opportunities for compromise—so that there shall not be an obligation on the Minister to confine himself merely to an affirmative or negative answer, and that he may be encouraged to make adjustments. We continue:
Provided that before determining any such appeal the Minister shall, if required either by the highway authority or by the applicant, cause a local inquiry to be held in public, and in giving his decision upon any such appeal the Minister shall publish a summary of the facts as found by him and of his reasons for the decision.The House will, therefore, appreciate that the majority of the desiderata asked for by the Standing Committee upstairs are hereby granted. There is provision for a local inquiry at which local knowledge can be brought into play. There can be a public statement of the case, expert witnesses can be called, documents can be put in, and so we meet the local point and also the public point—because it was charged against the original wording that the Minister might reach his decision in secret. The Amendment would impose upon him the necessity of having the case heard in public and further he must publish a summary of the facts and give reasons for his decisions. These can eventually be taken 2339 into account by other highway authorities as guidance and will give the appellant the satisfaction of knowing the grounds upon which his appeal has been decided.I agree that this procedure might not be so satisfactory if the Minister had an interest which prevented him discharging his duties impartially, but the Minister has only one interest, one duty and one power, and that is to see that the will of Parliament, as embodied in this Measure, is carried into effect; that indiscriminate building and laying out of means of access at the wrong points and it may be at dangerous points shall no longer be permitted, and that these matters shall be under expert supervision by the highway authority and subsequently by the Minister—no consent being refused, be it borne in mind, except upon the basis of compensation being paid. I do not think I overstate the case in claiming for this Amendment the support of all Members who base themselves upon the report of the Committee on Ministers' Powers. I have not only the report of the Committee itself to support me, but I have the letter from the Chairman of the Committee which repeats in the clearest possible language, what I imagined could not have been expressed with greater lucidity than in the words of the report itself.
The major issue, therefore, is: Is this an administrative matter or not? I do not think there can be two opinions upon it. The construction of a road and the laying out of means of access upon it are purely expert and administrative matters with which we are specifically entrusted in this Bill, and I think the answer upon that point is bound to be conclusive. There are, however, certain minor arguments in connection with this Amendment which it might appear discourteous of me to neglect now that I am upon the subject. There are 1,050 petty sessions courts and 184 courts of quarter sessions. Each court deals with a limited area, and in connection with this matter the court would not only be dealing with a limited area but with a singe application, out of relation to all other applications. It would simply have to look at the question of whether or not it was reasonable that a particular applicant, who might have put 2340 forward a heart-rending case, should be allowed to build or make means of access. The court cannot have a vision of the road as a whole, running right through the county. Its vision is confined.
Further, there is no publication of the decision of the petty sessions or quarter sessions. There is no official report and therefore no body of principles can be laid down. It answers the question, "yea" or "nay." It says to the applicant, "you may have access" or "you may not." But why he may or may not have access is not stated, and the court next door will not have the benefit of the judgment of its neighbour nor can the courts of the country as a whole build up any uniform practice. No reasons are given which can guide either applicants or authorities. Then think of the injustice to the poor appellant. He is going before a lay tribunal of magistrates, and if he succeeds before the magistrates, the highway authority is bound to take him to the quarter sessions because they are charged by Parliament with the duty of securing the safety of the road. That is their responsibility and they must go to the ultimate court in discharge of it, and with them must go the appellant. He must either appear in person, if he has the necessary skill to argue a technical case and convince a lay tribunal against the evidence of experts, or he must appear by counsel, except in cases where no counsel is available and where he may employ a solicitor.
§ Mr. DINGLE FOOTDoes the right hon. Gentleman suggest that he would have to appear by counsel at petty sessions?
§ Mr. HORE-BELISHAI do not know whether my hon. Friend is trying to draw a distinction between what I am saying and the facts, but I am advised that such an applicant must appear at the quarter sessions by counsel except in a case where counsel is not available, and where it is customary to allow appearance by a solicitor. I am glad to notice that I appear to have the assent of some of the legal brethen of my hon. Friend to that statement. There is bound to be expense not only in the presentation of the case but in the calling of witnesses before a lay tribunal where-as 2341 in the case of the Minister's tribunal, the inspector who holds the inquiry is a man with knowledge of this subject who can quickly digest the facts.
§ Mr. FOOTDoes the right hon. Gentleman really say that no expense would be incurred in bringing witnesses or instructing solicitor and counsel before a Ministerial inquiry?
§ Mr. HORE-BELISHAI do not know why my hon. Friend always prefaces these interruptions by asking "do I really say this or that," unless he is preparing to represent one of these applicants. I really do say that the applicant in such a case would have to controvert the expert evidence of the highway authority before the lay tribunal. He is not appearing before an expert and he must controvert the expert evidence. I beg of my hon. Friend to believe that I do not, in the least, desire to over-state this part of the case. I am dealing with the argument raised in Committee upstairs, and it will be for the House to decide. I am stating the other side of the argument which was presented. There is also delay in the case of the quarter sessions which, as their name implies, normally meet quarterly. There is not that room for compromise which there is in the Amendment, and I would point out that under the Private Acts compromise in these matters is nearly always reached. There has not been a single appeal to the Minister under those Acts which allow an appeal. It is usual in the locality to compromise and to say "you may not have access here but you may have it somewhere else". That is the course which the Minister normally would pursue but the petty sessional court and the quarter sessional court would have less opportunity of effecting a compromise.
Finally, it was said by those who criticised the original proposal in the Bill, that there were still certain administrative functions vested in quarter sessions. That is true. They are not of vast range, but there are some chiefly surviving from the days when the court of quarter sessions was the county highway authority. But we are here concerned with these particular administrative functions in a modern State. Parliament has expressed its desire to put a check on what I may term 2342 the present licence. It has devolved responsibility upon the highway authority and the Minister for making this Measure work. If Parliament wishes for results it must trust its own Minister, who is responsible to it. There is no question of law or fact, except as embodied in this, Bill. The law will be that henceforward no one has the right to build or make means of access within certain widths without the consent of the highway authority, which consent is given upon expert technical grounds and not ad misericordiam, given with a view to the road as a whole. As I say, we are concerned here with these administrative functions in the modern State. I put it with as much seriousness as I can command. If the House were to reject our Amendment it would not have passed an effective piece of legislation; it would merely have recorded a pious ambition.
§ 5.15 p.m.
§ Sir A. WILSONMy right hon. Friend the Minister of Transport has explained very lucidly the difference between him and the Committee upstairs. His main point, which, if he will pardon me for saying so, he has made much more cogently than a fortnight ago, is that quarter and petty sessions are not suitable tribunals for trying any quasi-administrative or quasi-judicial question. The submission that I wish to make is that that is not in fact the case, and that the Minister would gain very great authority and influence throughout England if he would take the magistrates into his confidence, enlist their support by hortatory circulars rather than by public rebukes, encouraging them to take every step in their power to forward and use them as agents for giving effect to policy as laid down in this House. [Interruption.] Perhaps the word "agents" is an overstatement, but the policy of the Government, for example, as laid down in the Licensing Acts of 1901 and 1910 has been applied by quarter sessions not merely in a judicial capacity, but in an administrative capacity as the agents of this House. It is more a matter of administrative than of purely judicial acts. The Royal Commission on Licensing paid a well deserved tribute to the efficiency of quarter sessions and licensing justices in giving effect to the general policy laid down in the relative Acts of Parliament. The Public Health Acts from 1875 onwards have been administered almost 2343 exclusively by petty and quarter sessions. There are scores of enactments which require reference to petty sessions in case of any dispute or difficulty, and I have yet to hear that petty or quarter sessions have failed in their duty thereunder.
There is nothing in England which is more tenaciously maintained than public rights of way, and they have been maintained, not by the Minister, but by quarter sessions. The highway authorities, as the right hon. Gentleman said, till about 1870 were the petty and quarter sessions; whatever beauty there is left in England we owe to their pious endeavours. It is they who maintained the rights of way, it is they who prevented encroachments, and even now—I doubt whether the Ministry of Transport is aware of it—it is for the petty sessions to prevent any encroachment within 15 feet of the roadway, apart altogether from any rights of property, it is for petty sessions to prohibit any quarry being opened within 50 feet of the middle of the road, and it is for petty sessions to insist on the rights of the public, as against the private owner, to verges. Until Parliament gave the Postmaster-General overriding powers, no one could have put up a post or any obstruction upon the verge of any highway without the permission of petty sessions, which would have been withheld if it created an obstruction.
The right hon. Gentleman speaks of his overriding authority as the agent of Parliament to give effect to its own Acts, and of the necessity for a single bureaucratic organisation acting uniformly throughout the United Kingdom, but I submit that uniformity is in fact impracticable, and were it practicable it would be undesirable. What we want is to have local interest aroused and local good will enlisted. Instead of depending upon a highway authority arbitrarily imposing its will upon innumerable individuals, we should get government by consent, which is far more likely to be attained by using the existing judicial tribunals which are the ultimate source of justice for the ordinary man in the street in 99 cases out of 100. There have been very few appeals from petty sessions to quarter sessions under the Highway Acts in the past 30 years, and that is because the petty sessions have acted 2344 fairly and reasonably. The right hon. Gentleman says they do not record their decisions. If he will look in any legal work dealing with the highways of England, he will see hundreds of cases decided at quarter sessions, dealing with every aspect of highway administration and law, and those decisions are, as I understand, not less binding upon other courts than any decision of higher courts. I am confident that if my hon. and learned Friend the Solicitor-General had been practising recently in quarter sessions, he would have found reason to admire rather than to criticise the suitability of those bodies as tribunals to deal with the practical administration of the law.
The Minister of Transport is fortunate in having the assistance of Jove's thunder from Printing House Square. He has brought to his aid Sir Leslie Scott, who, it is true, was chairman for a time of the Ministers' Powers Committee, but he is also a leading and enthusiastic member of the Council for the Preservation of Rural Amenities, and I regret that when he wrote to the "Times" he did not mentioned his dual capacities. The "Times" has added its thunder to the official cry for removing these cases from the judiciary and placing them in the hands of a tribunal, namely, the Minister, removed by several steps from the public at large. My hon. Friends who criticise my advocacy of the use of the magistrates throughout the country for this purpose are, I think, doing themselves as well as the magistrates an injustice. I believe that the future of this country, the future of democracy, depends largely upon the devolution of authority as far as may be from Whitehall, which is impossible unless we devolve authority not only to the county and rural district councils, but also to the magistracy. Strengthen them by all means, widen the basis of selection, but do not take from, but rather add to, their powers. The more power you give them, the greater the authority they will exercise and the greater their willingness to co-operate with every Ministry that appeals to them.
A visiting inspector coming down, whose report, I gather, will not be published, but only such portions of it as the Minister may think fit, is no real substitution. Every lawyer who has had experience of questions arising between the Ministry of Transport, county councils, 2345 and third parties knows that the Minister's representation has in fact, in the words—I quote from memory—of the Minister's Powers Committee, an unconscious bias in favour of the view of county council. These authorities are bound by the closest of financial ties. The Minister of Transport offers, say, 75 per cent. and the county council is willing to give 25 per cent., a great scheme is going through, and the chance of the private individual against this convergence of official opinion in favour of some particular act which may have, to use my right hon. Friend's own words, heartrending consequences to the individual, is small indeed. Each time that that is done there is a fresh crop of a fresh feeling of resentment against elected authorities, and against Parliament, and a fresh feeling that the private individual is in the grip of a machine and that all that matters is efficiency, efficiency from the point of view of the particular Minister, but not from the point of view of the smooth working of the little microcosm community of which that man is a part.
There are no ordnance maps. The expense of getting copies of maps will be prohibitive, but if the tribunal is the local magistracy, they can walk out from the court, jump into a car or a trap, go a couple of miles, see the site, discuss it on the spot, and, having discussed it, reach an agreed compromise between the highway authority and the individual. That in nine cases out of ten is how such business is done. The thing is done on the spot, and that is why petty sessions work so well to-day.
In excluding the matters now under discussion from the jurisdiction of petty and quarter sessions, I believe the Minister, acting, I am sure, in the supposed interests of efficiency, is depriving himself of the active and valuable assistance of a great body of men who are far more interested than he perhaps imagines in the lives and limbs of the people among whom they live, whose decisions must be reached in open court, in the presence of the Press and in the presence of the local inhabitants, who have to justify themselves not only in public but also thereafter in private for many a year to come, and who, living on the spot, will have to answer for their misdeeds in future years. Compare them with an inspector from Whitehall, a man 2346 unknown in the locality, who comes down, makes an inquiry, and whose report may or may not be accepted by the Minister.
I agree that the Amendment now proposed by the Minister is a great advance on what he has done before, and I am grateful to him and thank him for it. I only wish he had thought of it before, because if he had, the Clause that I should have put down would taken a different form, but I should still have pressed for the rights of the individual, when there is a really large financial stake at issue, to appeal to some court, in order that the Minister may be kept strictly within the law when purporting to act in a quasi-judicial manner upon a matter which is bound to have an effect upon scores of thousands of people. This Bill, little as I like it, will affect scores of thousands of small men, tenants of an acre of half an acre, running along scores of roads; it will affect smallholders, and others. We shall find it far more unpopular than many Members of this House think. The best thing we can do, as good Parliamentarians, is to get out from under, to transfer the odium as far as we can to the petty and quarter sessions, and to let them take the burden. They are not elected but appointed persons, and they will stand the strain far better than elected person can.
This Bill will be very unpopular in practice, mainly owing to the great delays that will occur. The Minister will no doubt secure the assent of this House to his Amendment, but I would ask him to weigh well the delays which many local authorities anticipate will occur in obtaining consents under this Bill. It may mean that Public Enemy No. 1 will be, in his own words in Committee, for many months to come be the builder of a house, and to add the word "speculative" does not detract from his importance to the community. I beg the right hon. Gentleman to consider whether, in drafting this Amendment, he has given due weight to the importance attached by the Ministers' Powers Committee report itself to the publication of the inspector's report in the form in which it reaches the Minister, and not in the form in which the Minister might wish to see it published, having regard to the need for uniformity which he has so frequently stressed in addressing this House.
§ 5.30 p.m.
§ Mr. PARKINSONThe hon. and gallant Gentleman is not bringing the Debate to a very high level by saying that he wants to transfer his own responsibility to the magistrates. The hon. and gallant Gentleman ought to carry the burden of his responsibility as a Member of Parliament, whether a Bill is popular or unpopular. I am sorry that the Minister did not put up in the Committee the fight which he has put up to-day. If he had been half as keen in Committee as he was this afternoon many of the Amendments which were carried there would not have been carried. We did not like the Amendment which was carried against the Government, and we voted for the Minister because we did not believe that any good purpose could be served by all these appeals being sent to petty sessions and from there to quarter sessions. The hon. and gallant Gentleman the Member for Hitchin (Sir A. Wilson) said there would be inevitable delay in the ordinary inquiry, but there would be greater delay in the legal inquiries, and surely the people concerned in the legal inquiry would not know the local position anything like as well as the people who would be there on behalf of the highway authorities. [HON. MEMBERS: "Oh!"] That is my opinion, and I have had something to do with this kind of thing. The Minister's Amendment, so far as I can see, will meet with greater acceptance by people generally and by the highway authorities.
It is a question whether the owners of land shall be a higher authority than the highway authority. We ought not to allow them to be, because the highway authority consists of people elected to carry out a certain responsibility, and they are doing it to the best of their ability in the interests of the whole community. Under this Amendment an aggrieved person will have the right of appeal to the Minister. A local inquiry will be held and both sides will have the opportunity of placing the facts before a special inspector appointed by the Minister. That will certainly be a much better way than having the case fought out before a court of summary jurisdiction, and every opportunity will be given for a pacific settlement of the dispute. The Amendment ought never to have 2348 passed upstairs. The question is whether a dispute shall be heard by a local inquiry and the responsibility for a decision thrown upon the Minister as a Member of Parliament responsible to Parliament. I may be old-fashioned, but I maintain that a Minister should be responsible to Parliament for his particular Department and that that responsibility ought not to be shared out between him and legal authorities in the country. A Minister should be a person with authority and responsibility.
I am pleased with the statement of the Minister to-day. It justifies the position he has taken up and the vote given by the Opposition in Committee. His Amendment is in the best interests of the local authority and of any aggrieved person. We want the most expeditious way of settling these matters and the way that will give the greatest satisfaction to the largest number of people. It is not a question entirely between the highway authority and the landowner. There is in between the public interest, and that is often left out entirely. The Minister has taken the right line in moving the Amendment, for it will cover all the difficulties and will not relieve the Minister of the responsibility for the burdens of his office.
§ 5.35 p.m.
§ Captain WATERHOUSEThe hon. Member for Wigan (Mr. Parkinson) started his remarks by complaining that my hon. and gallant Friend the Member for Hitchin (Sir A. Wilson) had not put the Debate on a very high level by suggesting the shifting of the burden to other shoulders. The House will be glad that the events of 1931 have borne fruit, even though belatedly. The Minister, in recommending this Amendment to the House, suggested that it was in some way a compromise, but I cannot see on what grounds he bases that suggestion. The original Bill stated that the matter shall be determined by the Minister. The Amendment to-day says, the Minister:
may make such order as he thinks fit, and the decision of the Minister shall be final.Really, the compromise is that before the Minister makes a decision he shall take the trouble to sift the evidence, to make some sort of inquiry, and to make some statement as to the grounds on 2349 which the decision is taken. Surely we may assume that no Minister in the exercise of his authority would take a decision of any magnitude without making close local inquiry. The so-called compromise, therefore, boils itself down to the fact that the Minister's decisions and his reasons for the decisions are to be published. I realise that that is some advance on the original position, but it is very far removed from the advance that we thought we had obtained—some of us after years of effort—in this direction in Committee upstairs. It makes us wonder what exactly the duties and the functions of a Standing Committee upstairs are.
§ Mr. T. SMITHTo represent our constituents.
§ Captain WATERHOUSEAs the hon. Member says, it is to represent our constituents—not one section of them, but the whole of them, whether they be owners or occupiers, or users of the roads. It is for the whole of my constituents that I am speaking this afternoon, and not for any sectional interests whatever. The decision upstairs was not taken on a snap vote; there was no question of a hurried decision or of inadequate discussion. The Minister, presumably, was briefed by the whole force of his Department, but we in our small way had gone into the matter as best we could. The decision was taken after a long and close discussion of the rights and wrongs of the case. The Lord President of the Council, when he was Prime Minister, invited the House to become a Council of State, but it seems to me that we are only a Council of State so long as we agree with the Minister. As soon as ever the Council ventures to offer a halting opinion in a contrary sense to that of the Minister the whips are cracked and the old ministerial coach goes creaking and rumbling along in the accustomed way, and the Council of State is completely forgotten.
The Minister has been bold in the exercise of his duties. He has been criticised, but he has been bold and not afraid of taking a new line; and if he had taken a new line on this question he would have earned gratitude of a great section of constitutional thought in the country as a whole. If he had been an entirely free man, I am. Sure 2350 that he would have taken that line, but he found that his Bill was enmeshed in the gears and pulleys of his Department, and he was dragged back into the old vortex of ministerial autocracy. I would remind my right hon. Friend of his antecedents in the Liberal party who thought it was their glory to stand up for the rights of individuals. It is true that the right hon. Gentleman and his friends do so a great deal more than the section of the Liberal party that sits on the other side of the House. As he had still some vestige of the old Liberal doctrine left in him, I hoped, before he brought in a Bill of this sort, he would have taken the trouble to re-read that excellent book by Lord Hewart called "The New Despotism." I will venture to make one or two quotations from that book, for, if the Minister has read it, I am afraid that he has forgotten the good advice that is contained therein. The Lord Chief Justice writes thus:
If it appears that this system"—that is, the bureaucratic system—springs from and depends upon a deep-seated official conviction, which in turn it nourishes and strengthens by each successive manifestation of its vigour, that this, when all is said and done, is the best and most scientific way of ruling the country, the consequences, unless they are checked, must be in the highest degree formidable.This declaration, coming from such a source, is one that the Minister cannot disregard. Lord Hewart goes on to compare this bureaucratic tendency with the rule in this country during the days of what he calls "the least wise kings" and says that it is nowto subordinate Parliament"—I ask the Minister to notice that, and not to forget that Standing Committee A is an integral part of Parliament—to evade the Courts, and to render the will, or the caprice, of the executive unfettered and supreme.That is a thing to be avoided at all costs, says Lord Hewart, and that, to my mind, is exactly what the Minister is falling into at this juncture. The Lord Chief Justice might have read this Bill before he wrote his book, for he deals with such a compromise as the Minister has made when he writes:It is sometimes enacted that, before the Minister comes to a decision, he shall hold a public enquiry, at which the interested parties are entitled to adduce evidence, and be heard. But that provision is no real 2351 safeguard, because the person who has the power of deciding is in no way bound by the report or the recommendation of the person who holds the enquiry, and may entirely ignore the evidence which the enquiry brought to light.I hope the Minister will not argue that these remarks of the Lord Chief Justice have nothing to do with this particular case and that we are dealing really with other topics, because the Lord Chief Justice gives two definite examples of what he considers to be a misuse of this power. They both come out of the Town Planning Act of 1925. The first one is in Section 1 (3) and the second in Section 7 (3). In the first the Minister took power to decide whether any land was or was not land likely to be used for building purposes. That would definitely be an administrative point in the false arguments that the Minister adduced this afternoon. The other provision is even clearer. It is thatif any question arises whether any building or work contravenes a town planning scheme, the Minister shall decide.If instead of town planning one writes road planning we have the exact case set out in this Section. It seems to me that by this compromise the Minister has put himself in the position of the Home Secretary who, when a man who considered himself innocent appealed to him against a sentence of hanging, said, "We will compromise and drown him."I want to appeal to the Minister on another ground which I consider far the most serious. It is one which is happily little mentioned in this House or outside. We all have the highest regard for the efficiency and integrity of the Civil Service, but we have to realise that, although we have a natural and very healthy bias towards honesty in this country, our public services have not always held the position that they hold to-day. A few generations ago they were little better than the services on the Continent and in America, against which we constantly hear charges levied. It is to a large extent this House which, by always insisting that the subject shall have an appeal to the courts, has led to the permanent and most praiseworthy efficiency and integrity of our Civil Service to-day. Let the Minister weigh these possibilities most carefully in his mind, because this is something so valuable to us that by no act of his should he run the risk of 2352 jeopardising what we have gained with so much difficulty.
There have been letters in the Press to which the Minister has referred. His propaganda or his publicity department has obviously been fairly active. Wires have been pulled, and up has got first one little puppet and then another little puppet to say his piece. We have read those letters with a good deal of interest. I read one this morning from the vice-chairman of the Highways Committee of the County Councils Association. He ends a very interesting letter with the remark:
The County Councils Association seem well content to accept the Minister as the ultimate arbiter.That is a most enlightening remark, but I do not think it can help the Minister very much. I am in some little doubt whether the writer was serious or was humourous in that remark. If he meant it to be amusing I agree that it was funny, but if he meant it seriously it is one of the best jokes I have ever heard in my life, because here is one who comes along so certain of having the favour of the judge who is going to judge him that he could not wish for another. I am not representing a highways committee but representing the general body of the public, and it is on the ground of the equity which ought to be meted out to the general body of the public that I make this appeal to my right hon. Friend.There has been another letter from Sir Leslie Scott, a gentleman who must carry a great deal of weight as a lawyer; but it is not on his personal merits as a great lawyer that he writes. At one time he was chairman of the committee which considered Ministerial Powers, and it seems to me that in that letter, which the Minister has read, he assumes to himself the power of interpreting the findings of the committee over which he presided. I think that is only very little less objectionable than the powers which the Minister wants to assume to interpret the Measure which we are passing to-day. That committee sat and produced its findings. On that committee were great constitutionalists like Lord Bridgeman, and great bulwarks of the law like Sir Roger Gregory; but, on the other side, there were ladies like Miss Ellen Wilkinson, who in an interesting note to that report said she thought the powers of Ministers were too few and far between, that she would like to see them much wider, that 2353 she did not agree that they were getting more powerful but thought it a crying shame that they were not made a great deal more powerful. This committee presented an agreed report, and their findings were therefore most emphatically a compromise between the extreme left and the constitutional views of the middle right. Let us examine some phrases of this report, from which the Minister himself has quoted at considerable length. They quote a judgment by Lord Campbell in which he said:
It is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party but applies to a cause in which he has an interest.Commenting on that judgment, the committee make this most pertinent remark on page 78 of the report:We think it is clear that bias from strong and sincere conviction as to public policy may operate as a more serious disqualification than pecuniary interest.Again they say:The bias to which a public-spirited man is subjected if he adjudicates in any case in which he is interested on public grounds is more subtle and less easy for him to detect and resist.Does the Minister honestly want to assure the House that he has no bias in this matter? If he does I must seriously consider whether I can vote for his salary when it comes up next year. He is put in his present position to have a bias, to have an interest in roads and road users. It is right and proper that he should have a bias, and I am perfectly certain, from what I have seen of him in his Ministerial capacity, that he above all other Ministers of Transport has a real bias, and that bias is to improve the roads and to make them better and more serviceable. It is a proper bias, but it is a real bias, and a bias which, to my mind, is a sufficient bar under the findings of this very Committee which he is quoting. In another place the Committee say:We think, however, that before Parliament entrusts a Minister with the power and duty of giving quasi-judicial decisions as part of a legislative scheme Parliament ought to consider whether the nature of his interest as Minister in the carrying out of the functions to be entrusted to him by the Statute may be such as to disqualify him from acting with the requisite impartiality.2354 Then the report goes on to differentiate between administrative and quasi-judicial functions. The Minister tried to persuade the House that in this matter his functions would be entirely administrative, but it is not so. The report sets out, on page 81, that matters into which inquiry has to be made, where the decision of the Minister is not absolutely arbitrary, become not administrative but quasi-judicial, and therefore they come very definitely within the meaning of the words of this report. I ask the Minister to turn to page 99 of this report, where the findings are set out under the happy title "Vigilant observance of the principles of natural justice." I am sure that that heading will appeal to the Minister. It is obvious that he and his Department have studied this report in putting these proposals on the paper. There are four recommendations. The second of them is that each of the parties should be given an opportunity of stating his case. The third is that any party affected by the decision should have the fullest information. The fourth is that a reasoned judgment should be given. The Minister has conformed to all three recommendations, but for some extraordinary reason has left out number one. Possibly he did not notice it. I shall read it in full, because it is so extremely important in this argument:In future legislation Parliament should proceed on the principle that no Minister (in which word we include any officer of a Minister acting under his orders) should give a judicial decision in any dispute in which the Minister has the kind of Departmental interest described in paragraph 3.In paragraph 3 there are the words about bias to which I have referred:If such cases: appear likely to arise, Parliament should provide for determination of the dispute by a ministerial tribunal functioning independently of the Minister.Then there is another short paragraph emphasising that point. It seems to be clear, if we are to work on the basis of that report, that the report is in favour at any rate of some of our proposals if not of the whole of them. I urge the Minister, if he cannot accept the words as fixed by the standing Committee upstairs, to see whether it is not possible now, while the House is still sitting, for his advisers to devise some means of setting up an independent tribunal which shall set at rest the fears, groundless 2355 perhaps, but real, of so many people in all parts of the country who are going to be examined and whose rights are going to be curtailed under this Bill.We do not object, and the people themselves do not object, to their rights being curtailed when they know that that curtailment is for the general benefit of the community, and when they know they will have an opportunity to state their case fairly before a fair and impartial tribunal; but what neither they nor anybody else in this country can stand is the idea that either they will not have a right to state their case or that they will not have stated their case before a judge as impartial as one might hope and expect to find in a British court. Therefore, I make this final appeal to my right hon. Friend, not only in a matter which is of sectional interest, but in what I believe to be a matter vital to the whole well-being of the constitution of this country—let him see now whether he cannot do something for us, so that when on Friday he goes away on his holiday he will feel that he has struck one blow, at any rate, for a principle which he used to hold dear.
§ 5.56 p.m.
§ Sir P. HARRISWe have listened to a witty and well argued speech, and I think the House does quite right to scrutinise very closely any extensions of power claimed by the Government. The country has always been suspicious of bureaucratic tendencies. We have always disliked the droit administratif, the French idea of officials being over and above the law and Parliament being outside the courts, and it is right that constant publicity should be given to the views which have been expressed. But I think the hon. Member was a little unfair, in fact, most unfair, to Sir Leslie Scott. He is a very distinguished lawyer and has been Solicitor-General, and he presided over this committee with skill and judgment, and as chairman of it he is entitled to express the views of that committee—in his personal capacity. I am not suggesting that he represents the whole committee, but he is entitled in his personal capacity, after having sat as chairman of the committee and weighed the evidence and given this very strong report, to express his views as to the application of this report to this par- 2356 ticular case. To speak of him acting as a mere puppet to the right hon. Gentleman is hardly a worthy observation from the hon. and gallant Gentleman and I think it should be withdrawn.
§ Captain WATERHOUSEI think I said—I do not actually remember my words—that one paid considerable regard to the opinion of Sir Leslie Scott as a legal luminary, but he had no right to seek now to interpret the findings of his Committee. I think I did use the word "puppet," but I did not mean that in any derogatory sense—[HON. MEMBERS: "Oh!"]—but merely in the sense that the Minister had used certain ways, as I believe, to get into touch with these people.
§ Sir P. HARRISAnyone who knows Sir Leslie Scott knows that he is the last person in respect of whom one could pull strings to influence his opinions. If he did express his views they were genuine views, which ought to be taken into account, owing to his great authority as a great lawyer, as a former Solicitor-General and as chairman of this particular Committee. I would remind the hon. and gallant Gentlman and those who sympathise with him of the origin of this Bill. For months the late Prime Minister was pressed from all sides of the House to bring in a ribbon development Bill, by the hon. Member for South Kensington (Sir W. Davison) and others, in order to deal with this vital and urgent problem. He quite properly replied—I would remind hon. Members of this, because it ought to be taken into account in our examination—that he could not deal with that difficult problem without attacking vested interests. That is why such a long and unfortunate delay occurred before the presentation of the Bill.
You cannot deal with this problem without to some extent injuring private rights. If people ought to be allowed to do what they like with their own and to make as much profit out of it as they can, the Bill is an interference with them, and they will oppose every Clause of it because it will qualify and limit private rights. If you are promptly and quickly to deal with this urgent problem, there must be a certain amount of interference with the rights of individuals. No one is more sensitive than I am that individuals should have a right to state their case. There was a similar discussion, 2357 and a very long one, upon the same issue, on the Floor of the House upon the Housing Bill. The suggestion was made that an official of a Government Department was not a proper person to adjudicate between private interests and the point of view of a local authority, because he was biased. I proposed a way out of that difficulty. Instead of the official being appointed by the Government Department concerned, in this case the Minister of Transport and in that case the Minister of Health, he might be appointed by the Lord Chancellor or some independent authority.
I speak with some personal knowledge on this matter when I say that departmental officials do try to work impartially, and to hold the balance evenly between the local authority and the individual. My experience is that the local authority is often at fault. The officials are inclined to weight the balance in favour of the individual and against the authority, because the natural instinct of any tribunal is to look after the interest of the weaker power of the individual against the powerful, elected local authority. Be that as it may, there is undoubtedly a feeling in the House that as the official appointed to do this work is appointed by the Government Department concerned he may be too likely to take the point of view of the Department. If that be the case, the way out is not to challenge the whole method of tackling the problem, but to arrange that the official shall be appointed by some other Government Department and preferably that of the Lord Chancellor.
I beg the House not to adhere to the words in the Bill as it came from the Committee, because they will, I believe, paralyse the Bill, which is not going to do the big things that some people believe. The work is going to be difficult, and it will involve on the one hand a very large sum of money in compensation, and on the other a lot of local authorities, which at the present time are very slow, being put into action. I very much doubt, whatever the Minister desires, whether local authorities in many parts of the country will carry out the work with energy and initiative. If you are going to put in this fifth-wheel to the coach, you will make the operation 2358 of it very slow. If it has to go through all the slow procedure of a court of law, as suggested in the Bill, we might as well have saved cur energies in the Committee instead of sitting up there afternoon after afternoon. We might as well have left things as they were and the law as it was. I beg the. House to support the Minister in what I think is a very fair piece of compromise.
§ 6.6 p.m.
§ Mr. TURTONThe Minister is in a difficulty here, because he has to attempt to reverse the decision which was taken by a very full Committee and by a substantial majority. He has not made his task easier by the speech which he delivered. He has said that this is purely a question of administration and not of law. He said: "The law is here; what more do you want?" If he took any Act of Parliament he could quote it and say: "The law is here"; accordingly, the Larceny Act could be administered by a Ministerial official and not by a court of justice, because "the law is here." I quite conceive that, owing to the Minister's action, (6) of Sub-section (4) is an administrative question and I am quite satisfied with the Minister's new Amendment so far as it concerns that. If the Minister will recall the history of the Bill of which he is the fond parent, he will remember that in the original Bill the two Sub-clauses were justiciable and not administrative. They were entirely questions of actual fact, and those two Sub-clauses still remain in the present Bill.
If the Minister keeps to his Amendment he will set up his official as the arbiter on matters which are questions of law and fact—mixed law and fact—and not questions of administration at all. Before the Bill was altered in Committee, those Sub-clauses applied to a dispute between a highway authority and an individual on a, question whether a means of access was required for agricultural purposes. The House will appreciate that if once it is established that a means of access is an agricultural means of access, it is exempt from Clauses 1 and 2 of the Bill. That still remains in the Bill as it has come from the Committee; still there may be a dispute (it is provided for in Sub-section (4)), as to whether a Means of access is an agricultural means of access or not. I suppose that officials of 2359 the Ministry are to determine, under the Minister's Amendment of this Subsection, the question of law involved.
Another dispute provided for in the original Bill, was whether any condition was necessary for securing that means of access should be used for agricultural purposes only. That still remains, and is entirely a justiciable question and not a question of administration. I will not for a moment argue whether questions of administration should be determined by a court of petty sessions or of quarter sessions. They are entirely separate matters, to be determined in a different way. But it is going to be a very dangerous inroad if the Minister is to set up his officials as judges on questions of law which are in dispute between a highway authority and an individual. Many officials of highway authorities, owing to the services which they have rendered, have been promoted to the Ministry of Transport, and it may be a very awkward thing if those gentlemen have to determine disputes between what were their own highway authorities and individuals. The Minister said he objected to quarter sessions because quarter sessions met so seldom, only once a quarter, but since the Summary Jurisdiction Act was passed last year quarter sessions meet for appeal Purposes when there are sufficient appeals for them to hear. The force of that argument of his no longer exists. If you are to have a judicial tribunal, it may be better if it is the quarter sessions alone and not the petty sessions. I trust that the Minister will consider how far some of these questions are justiciable, and that he will allow a judicial tribunal to decide them.
§ 6.12 p.m.
§ Mr. LENNOX-BOYDNot for the first time in this Parliament the only support which has been accorded to the Government on rather controversial questions has come from Members of the Opposition. I would like to make an appeal to my right hon. Friend. In the Committee upstairs he showed great courtliness and great readiness to compromise. Will he not consider the suggestion made by my hon. and gallant Friend the Member for South Leicester (Captain Waterhouse) and try to arrive, before the Bill becomes law, at some compomise which will meet the widespread feeling of unrest in many quarters of the House? Since the Com- 2360 mittee met the Minister has enlisted on his side a certain amount of heavy artillery; the "Times" published two leading articles headed with, I thought, the rather ponderous phrase "Mistakes to be Remedied." They were to be put right by my right hon. Friend who, in his earlier and more sprightly days, has often incurred the opposition of that newspaper, but he has not been much influenced by those articles. There was also a letter from the Chairman of the Committee on Ministers' Powers. He is also the Chairman of the Council for the Preservation of Rural Amenities, and we were in great doubt whether, when he wrote that letter, he was speaking in his judicial capacity or in his administrative capacity—a point which will be appreciated by my right hon. Friend, who quoted at length from the Committee's Report to show that there is a hard-and-fast definition between administrative and judicial questions. On page 81 the Committee say quite emphatically:
Generally speaking, a quasi-judicial decision is only an administrative decision, some stage or some element of which possesses judicial characteristics.The fulminations in other parts of the report against the Minister's clothing himself with those judicial powers therefore do apply to those quasi-administrative and judicial decisions which are only administrative decisions.I cannot claim to speak with legal authority but, reading the Bill as an ordinary intelligent layman, I think it will prevent certain cases, particularly access to the road, or building, being made without the consent of the highway authority, whose consent must not be withheld unreasonably. The question whether that consent has been unreasonably withheld is most certainly a proper subject for judicial decision. I cannot see any difference in that case, and many cases are already a subject for petty sessional trial, arising out of the Highways Acts, the Public Health Act, or, the most perfect parallel, footpath diversion. The right hon. Gentleman will probably think this very trivial, local and rustic question scarcely fit to be considered in what he calls this age of the modern State. If the modern State means the substitution of bureaucratic justice for the justice of the courts, I am more than ever sorry that I was born in a modern age. I cannot believe that my right hon. Friend, who, I am certain, on reflection will agree with 2361 us, is likely to add one more pillar to the numerous pillars that have already been erected substituting ministerial justice for the justice of the courts.
§ 6.15 p.m.
§ Mr. DINGLE FOOTI shall not detain the House for very long, after the admirable speech to which we have just listened. I was rather astonished at the quotations given by the Minister from the Report of the Committee on Ministers' Powers, to which we have heard so many references in this discussion. Surely, if the Minister is going to rely on the Report of the Committee on Ministers' Powers, and the distinction there made between judicial and quasi-judicial questions, we should expect that the procedure which he himself proposes would be in accordance with the provisions of that Report, but it is perfectly clear from the Amendment that it is nothing of the kind. The proviso in the Amendment reads as follows:
Provided that before determining any such appeal the Minister shall, if required either by the highway authority or by the applicant, cause a local inquiry to be held in public, and in giving his decision upon any such appeal the Minister shall publish a summary of the facts as found by him and of his reasons for the decision.The words are: "a summary of the facts as found by him." It is not, the House will observe, a summary of the facts as found by the person who holds the inquiry. There is a very real difference between the two. An hon. Member above the Gangway says that it is the same thing, but how can he or anyone else know that it is the same thing? There may be a difference between the view taken by the person holding the inquiry and the view taken by the person in the Ministry of Transport who actually has to come to the decision. I think that one of the reasons for the general feeling that there is against these ministerial inquiries, whether conducted by one Department or another, is that there is nothing to show that the decision which the responsible official in the Department arrives at is in accordance with the evidence taken or the views that have been formed by the other official who originally held the inquiry, and there is no provision here for the publication of the report of the inspector who holds the inquiry. On that point the Committee on Ministers' Powers was most emphatic, and I was rather disappointed that the Minister 2362 did not quote what they had to say with regard to it. On page 105 of their report, dealing with this point, the Committee say:We are not satisfied that an extension of the practice of giving reasons for decisions would really meet the demand for publication of inspectors' reports. The reasons with which the Minister of Health"—in this case we may read "the Minister of Transport"—accompanies his decisions, as illustrated by the examples furnished to us, are, in the main, reasons of policy, and the facts and arguments brought forward at the antecedent inquiry are referred to only so far as may be necessary to render the statement intelligible.A little further down on the same page they give their conclusion on the point:To these various arguments for and against publication we have given prolonged consideration, and on balance have come to the conclusion that publication is right. By that we do not mean that the expense of printing a long report should in every case be incurred; but that in all cases the report of the inspector should be made available to the parties concerned and to the Press, and in important cases should be officially published by the Department responsible for the inquiry.That is a perfectly clear recommendation of the Committee whom the right hon. Gentleman quoted. It is entirely ignored in the Amendment which he is now putting before the House. He went on to level what seemed to me to be some rather peculiar criticisms against the courts referred to in the text of the Bill. He said that, when you have a hearing before a court of summary jurisdiction or a court of quarter sessions, there is no official report, and no reasons are given. But the people who give the decision are the people who have just heard the evidence—the same people. They give their decision immediately after having heard the evidence, and in the great majority of cases I think it is true to say that they give quite fully their reasons for the decision at which they arrive.The Minister made what seemed to me to be a most extraordinary statement. He referred to the multiplicity of appeals that would be involved, and he said that the highway authority, if it were defeated in the court of summary jurisdiction, would always be bound to take the applicant to quarter sessions. Why should that be so? Why should not the highway authority, or any other official body for that matter, be ready to accept 2363 the decision of a court of justice? We have seen a number of cases in another sphere where Government Departments have taken quite hopeless appeals to the House of Lords, and where the House of Lords in one notorious case, taken, I think, by the Post Office, said that the appeal was one which ought never to have been brought forward, because it was a, hopeless appeal both on the facts and on the law. Apparently that is the attitude which runs through Government Departments. Otherwise, why should the right hon. Gentleman have stated that in every case the highway authority would be bound to take the case on appeal to quarter sessions? Why should not they, as much as the applicant, be prepared in all reasonable cases to accept the decision of the court of summary jurisdiction?
Then the right hon. Gentleman referred to the question of expense, and said that applicants would be put to expense if they had to go before courts of summary jurisdiction or courts of quarter sessions. I speak from a comparatively short experience of these matters, but I have appeared, and do appear occasionally, before inquiries held by Government Departments, and more or less regularly before quarter sessions; and I should have thought that the expense involved in appearing before quarter sessions would in most cases be very much less than the expense involved in appearing before a departmental inquiry. The departmental inquiry is really a much more formal matter. It is not held as a matter of course. You do not have the court sitting regularly in the district, but a special day has to be fixed, sometimes, it may be, weeks or even months ahead, and the court, or what passes for the court, has to be assembled simply for the purpose of this particular inquiry. I do not think it would be possible for the right hon. Gentleman to find any evidence that would justify his statement that less expense is incurred at inquiries held by Government Departments. He also referred to the question of delay. As I have said, in the case of most Government inquiries, whether in reference to slum clearance, or county boundaries, or anything of that kind, some weeks' notice has to be given, a certain procedure has to be followed, and announcements have to be published in the newspapers. The probability is that there will be far more 2364 delay in these inquiries than would be involved in going to quarter sessions.
Finally, I would endorse what has been said by the hon. Member for Mid-Bedford (Mr. Lennox-Boyd) about the administrative functions of quarter sessions. I entirely agree with hon. Member for Thirsk and Malton (Mr. Turton) that it would be better, if it could be arranged, that these matters should go straight to quarter sessions, without the intervention of a court of summary jurisdiction. It is perfectly true that even to-day courts of quarter sessions exercise very considerable administrative functions. For instance, if you want to get a licence for a lunatic asylum—scarcely a judicial matter—you have to go to quarter sessions, and you have to go to quarter sessions every year to renew it.
Then, as the hon. Member for Mid-Bedford said, there is the question of diversion or stopping up, not only of footpaths, but of highways as well. I should have thought that that was extremely similar to the function which would have to be exercised here. It does not involve them in any difficulty; it is something that happens at both borough and county quarter sessions again and again. If you go into a county quarter sessions court at the beginning of the business, before they approach the calendar, you will probably see a number of applications to divert or stop up a footpath or a highway. These do not occasion any difficulty. The right hon. Gentleman referred to lay magistrates, but very often the gentlemen who preside over the county benches are lawyers of great experience, and in the boroughs, of course, there are the recorders, who also are trained lawyers. I have never seen a court of quarter sessions experience the slightest difficulty in making up its mind about an application to divert or stop up a footpath or a highway. For these reasons I hope that those hon. Members who supported the insertion of this provision in the Bill in Committee will be prepared to support it in the Division Lobby this afternoon.
§ 6.28 p.m.
§ Mr. WISEI think the Minister cannot but feel a little disappointed at the reception that his Amendment has bad in the House. The only voices raised in support of it, other than his own, 2365 have been that of the hon. Member for Wigan (Mr. Parkinson), whose arguments I shall mention briefly in a moment, and, to a very limited extent indeed, that of the hon. Baronet the Member for South-West Bethnal Green (Sir P. Harris), who, fortunately, has been repudiated by the very excellent speech we have just heard from the hon. Member for Dundee (Mr. Dingle Foot). We heard the hon. Baronet thundering at us instructions to "remove that bauble," and we heard the hon. Member for Dundee asking us to put it back again.
The real support for the Minister's Amendment, which has come from the Socialist party, is understandable enough. They, quite frankly, do not believe in liberty, and never have believed in it, and the hon. Member for Wigan made that perfectly clear in his speech. He said it was monstrous that Ministers should shelve their responsibilities by allowing the subject to go to the courts—that it was a horrible thing that the courts should intervene between the beneficent work of the Minister and the unfortunate objections of the subject. It is perfectly true, I have no doubt, that in the form of community which is really dear to the hon. Member for Wigan no court would ever be allowed to intervene between a ministerial decision and its victim. The methods of the Cheka are exactly on those lines; no appeal is allowed between the excellent administrative decision of the Commissar and the person whom it affects. But these, I am sure, cannot be the reasons which at the moment are influencing the Minister, and I hope he will be impressed, not only by the fact that the Committee upstairs inserted this provision, but by the fact that there has been a great deal of support for the Committee's action among Members of the House who were not on the Committee. I am not now going into the question of judicial and quasi-judicial functions; that has been admirably dealt with by several previous speakers; but I do not think anybody can deny that the principle of cutting out an appeal to the courts is a bad one, except, of course, hon. Members opposite, who have already said that they do not like courts of justice.
§ Mr. T. SMITHWhen did they say that?
§ Mr. WISEThe hon. Member for Wigan says that he likes justice but does not like the courts. It is possible that he has some prejudice against the legal and judicial system of this country—
§ Mr. PARKINSONI have not any prejudice against the legal system, either here or in any other country, but I do like justice.
§ Mr. WISEClearly, the hon. Member has put his stick into the muddy pool, and is stirring it round gloriously. He now likes justice but he does not like to see justice administered by the courts.[Interruption.] That is what he said.
§ Mr. PARKINSONIf you cannot be honest in your application, at least be decent.
§ Mr. WISEI must ask for your protection, Sir, against this allegation of indecency. I have not said a word that has traversed the ordinary bounds. However, possibly I have referred enough to hon. Members opposite, and I will come down to a more serious matter. For good or ill this Bill represents a very serious encroachment on the rights of public property. It may be necessary that that encroachment should take place. It may be that this evil of ribbon development is such that drastic action has to be taken to curtail the rights of the subject to do what he likes with his own property. That was the point made by the Minister, and that has on the whole been accepted by the Committee upstairs and by this House when it gave the Bill a Second Reading. But, while conceding that that right may be challenged, there is another common law right, and that is the right of access to the courts to remedy an injustice, and the fact that you have to remove one right from the subject does not justify you in removing the other. It is an extremely serious thing, I suggest to the House, to take away more than they can help at any one time. I suggest, further, that we have never removed a common law right from the subject without ultimately regretting it. I suggest again that the whole function of this House has always been to maintain common law rights and, although they are prepared to agree that this removal of the property owners' freedom to do as he wishes with his own land is necessary, I do not think we can agree 2367 that the Minister should be allowed not only to initiate the prohibitions of his land but also to say whether they are reasonable or not reasonable.
We do not wish to throw any aspersions on the Minister or his officers. I am not even suggesting that a Ministry official would not give the most impartial hearing in one of these cases but, whether the hearing is impartial or not, people will not think it is, and therefore it is essential that a final appeal should go to someone other than the Minister himself. All the speeches that we have heard strengthen that point of view, and I hope that even at this late hour the Minister will be able to see his way to make some concession. I have consistently stood out upstairs and here for this particular provision. I cannot in justice to any principles in which I believe allow it to pass without challenging it.
§ 6.35 p.m.
§ Mr. LYONSThe Minister said that this is a Bill which is a new development and makes a new interference with the rights of the subject. When there is an interference of this nature for the first time, we ought to be very chary before we put any difficulty in the way of the subject whose rights are going to be interfered with. I join with those who have pleaded for an alteration in the Amendment because the Minister has shown no reason at all why we should take away the safeguard that exists, as provided by the Committee, for the protection of the liberty of the subject in the rights that he desires to exercise. There can be no doubt that no cause has yet been shown why there should be this very drastic alteration made at this hour of the day. It may very well be that there comes a time when the private interest of ownership has to be sacrificed for the greater need of the public interest. When that time arrives, every safeguard should be provided for the protection of the person whose rights are going to be interfered with. May I remind the House of a section of the Report of the Committee on Ministers' Powers:
In future legislation Parliament should proceed on the principle that no Minister (in which word we include any officer of a Minister acting under his orders) should give a judicial decision in any dispute in which the Minister has the kind of departmental interest described in paragraph 3. If such cases appear likely to arise, Parlia- 2368 ment should provide for determination of the dispute by a Ministerial tribunal functioning independently of the Minister.There can be no doubt in this case, as the Minister responsible for the safety of people on the roads, he has a certain Ministerial bias. If the Amendment is proceeded with, he, with that bias, would be the judge in a cause which is his own. As the position now stands, it is suggested that the Minister himself should make public the reasons for which he comes to a certain decision, without making any statement at all of the findings of the inspector whom he appointed to hold the inquiry. At another paragraph of this report there is a direction which is totally opposite to any such new law being made:Each of the parties to a dispute should be given the opportunity of stating its case—not necessarily orally—and should also be given the opportunity of knowing the case which it has to meet and of answering that case if it can.In the circumstances that are now suggested, the official of the Minister of Transport will, after holding an inquiry, come to certain decisions which are not made public, arrive at certain facts in the absence of the parties, communicate those facts to the Minister, and on those facts the Minister can make what provision he likes, provided that he makes public that decision, giving the parties no chance whatever of knowing any of the findings of the officer holding the inquiry. I am not impressed with the suggestion that, when the tribunal considers whether or not a consent has been unreasonably withheld, that is not in any way a judicial decision. I cannot accept the view that this is a matter wholly of an administrative nature, because many considerations are going to arise which must make it to a certain extent an administrative but to a very great extent a judicial decision.That is the decision that the Minister now seeks to have the right to give, and to give finally, outside the ordinary accepted law of the land. "Under the provisions made upstairs the ordinary courts of the land are employed. There are, first of all, the petty sessions, to which all aggrieved persons can go and, if they are not satisfied, there is an appeal to quarter sessions. It has been pointed out that quarter sessions have to do a very diverse amount of work. There is no reason why the decision con- 2369 templated by this Bill could not properly be made by quarter sessions, and I hope the Minister will not insist upon this Amendment. At a time when here and in other places we in this country and in this House are the first to criticise any surrender elsewhere of the liberty of the subject, it ill becomes us to take any step which would allow anyone to turn round and say we are losing our jealousy for the safeguarding of the rights or liberty of the subject. I wish the Minister would pay some little attention to something that was repeated in the report that we are now discussing. I should like to read one other phrase from, "The New Despotism" by the Lord Chief Justice of England:
How is it to be expected that a party against whom a decision has been given in a hole and corner fashion and without any grounds being specified should believe that he has had justice? Even the party in whose favour a dispute has been decided must in such circumstances be tempted to look upon the result as a mere piece of luck.Has any reason been shown why, in this case of the prohibition of ribbon development, the Minister should be singled out, should be given authority to ride roughshod over the ordinary established courts of the land, which are giving day after day decisions of far more importance and more far-reaching than the decisions that have to be given under this Bill? Hon. Members may have objections to petty sessions or quarter sessions but, whatever they are, and however well founded, quarter sessions exist side by side with the established law of the land, performing very important legal functions equally, or more important than the functions which will have to be performed by the tribunal which gives a decision under this Clause. I appeal to the Minister not to insist upon this Amendment, but to pay heed to the criticism which has been aroused by Members who are jealous of the safeguards of the liberty of the subject. I should like to quote from an earlier stage in the Report of the Committee on Ministers' Powers:Amid the cross currents and shifting sands of public life the law is like a great rock upon which a man may set his feet and be safe, while the inevitable inequalities of private life are not so dangerous in a country where every citizen knows that in the Law Courts, at any rate, he can get justice.2370 I hope that, in dealing with a Bill of this nature, which for the first time takes away some right of private ownership of land, he will see that a person who is aggrieved shall have the right of redress and the right of going to the ordinary courts of the land, which we believe is inviolable.
§ 6.44 p.m.
§ The SOLICITOR - GENERAL (Sir Donald Somervell)No one would dispute, least of all my right hon. Friend and myself, that the subject under discussion is one of great importance and interest, and we believe that, in asking the House to accept this Amendment, we are asking it to proceed on right principles, having regard to the subject-matter involved. Some people are inclined to think that, wherever two parties are found at loggerheads, there is subject-matter for a judicial decision and for the functions of a judicial tribunal. Whatever else may not be made plain by the report on Ministers' Powers, it is made abundantly plain that that is not so, and that there are two quite separate classes of disputes with which we have become familiar in the administration of our law and the carrying on of our society. There is the dispute which requires a legal decision or, to use the words I have already quoted from page 73 of the report, the dispute which involves as one of its elements the application of the law of the land. That means the application of a legal principle, whether a principle of common law or a legal principle as stated in an Act of Parliament. The other kind of dispute is called an administrative dispute dependent, to use again the words of the report, on policy. The appropriate body to decide the former is the court or a legal tribunal, and the appropriate body to decide the latter is the Minister.
Some confusion has been imported into this difficult subject by use of the phrase "quasi-judicial." When the courts applied that phrase to a Minister they did not, I think, mean that the dispute which he was deciding was really a judicial dispute. They meant that Parliament, having laid down that there was to be an investigation or an inquiry, should, in conducting the inquiry, proceed on quasi-judicial lines. The Minister should hear each side, and not tell one side something in the absence of the 2371 other, and so on, and he should apply the ordinary principles of procedure. I do not suggest that there is not a perfectly clear line to be drawn between judicial disputes dependent upon principles of law and administrative disputes dependent upon questions of policy. I think that the reply you give to the question, "Is this an administrative or judicial dispute?" really gives the key and the answer to the subject which we are discussing this afternoon. Those who think that it is really a judicial question will oppose the Amendment, and those who are satisfied that it is really and fundamentally an administrative question of policy should, if they are logical, and certainly if they follow the general principles of this report, support my right hon. Friend. That really depends on the nature of the dispute.
We are dealing with a highway authority refusing a means of access, refusing the old common law right. What are the considerations that Parliament under this Bill enjoins the highway authority to weigh and consider in coming to that decision? Their consideration, first of all, is to the safety of life having regard to experience, what the police have found not only in their particular parts of the country, but very lively over the country as a whole, and to what the Minister and the Commissioners have before them. In the light of all that expert administrative knowledge, and of what means of access are reasonable on a particular old road hitherto passing through undeveloped land or on some newly-made road, I suggest to the House that it is purely an administrative question. It depends for its answer not upon any legal principle, but upon having sufficient familiarity with the data and with the expert opinion on the subject and applying, as an expert, that data and knowledge to the particular problem. I think that it would be difficult to find one more appropriate than the Minister in question.
I agree with the point made by my hon. Friend the Member for Thirsk and Malton (Mr. Turton), that when it comes to a question as to whether a thing is for agricultural purposes you are in rather a different category. There is a great deal more to be said for the argument which he advanced than for some of the other arguments, but I think that 2372 he would agree that it would be administratively inconvenient to try to split up the issues on a Bill of this kind into departments, and have one procedure applying to one and another procedure apply to another; that when questions of access and safety are involved, it should go to the Minister, and that when some case of agriculture arises, possibly at the same place, you have to go to the court.
If one takes the main question, the means of access, I suggest to the House that that is a typical example of a purely administrative problem. One could safely say with equal force over the question of amenities that it was a question of policy. What has been happening everywhere? Hon. Members up and down the country have been complaining for the last three or four years, or longer, of what is going on in the way of development by the roadside. This House, in effect, has been called upon to stop it, and the Minister is to be charged with the duty. Let me take one case—a mile road, prospective development, 20 applications for access—which would result in what we call ribbon development. The highway authority refuses the applications. There are appeals to quarter sessions, which takes a particular view of the matter, and the applications are all granted. There is no control of quarter sessions. It is no good my hon. Friend saying, "Let us assume that the quarter sessions will always be right and reasonable." You have to test the efficiency of your machinery by taking cases in which they have been unreasonable.
§ Captain WATERHOUSEThe hon. and learned Gentleman is the last person to assume that any court of justice would be unreasonable.
§ The SOLICITOR-GENERALI do not assume that, but if you put upon a court of justice a matter which cannot be decided by legal principle they are as likely—I will not go further than that—to be unreasonable as is any other administrative office. You are putting the administrative function on them, and once we break away from rigid rules of law there is a possibility at least of this sort of thing occurring.
§ Mr. H. WILLIAMSWould the learned Solicitor-General say that questions of workmen's compensation were 2373 outside judicial functions and were purely administrative?
§ Mr. GROVESWhat has that to do with it?
§ The SOLICITOR - GENERALWe cannot carry the discussion too far. There are a great many people who think that it would be more satisfactory if questions of accident arising out of a man's employment were decided administratively by the Minister responsible to Parliament, and that then you would not have the enormous cost and expense incurred by carrying such matters to the court. I hope that I have not put my case with too great a warmth. One appreciates the principle maintained by hon. Members who oppose the Amendment. I appreciate it to the full. I only differ from them in its application to the subject matter of this case.
I would say a few words to my hon. and gallant Friend who initiated the discussion this afternoon. He suggested to my right hon. Friend that he should take the magistrates into his confidence and use them as his agents, afterwards withdrawing the word "agents" when there was noisiness on one side or the other. Gone is the impartial judicial tribunal! My hon. and gallant Friend is really taking up different ground. He is saying that they can be made use of administratively in local government. That is quite a different point from putting them forward as an impartial judicial tribunal. That principle could not possibly be incorporated in this Bill. The administrative body here is the highway authority. The logic of the argument of my hon. and gallant Friend would be to wipe out the highway authority altogether and make petty sessions the administrative authority for the full purposes of the Bill. It cannot be right, Parliament having set up an administrative body of the importance of the highway authority, than to say that they have been overruled on a purely administrative matter by petty sessions acting under this Bill as an administrative authority. While welcoming the discussion and agreeing in principle with our opponents, but differing from them only in their application of the principle [...]tf this subject matter, we advise the House to accept the Amendment.
§ 6.56 p.m.
Lieut.-Colonel ACLAND TROYTEThe learned Solicitor-General said he hoped that he had not put his case with too great warmth, and he appeared not to make his case at all. It was put in such a way as not to convince anybody in this House or anywhere else. In his closing words he said he agreed with us in principle, but not in spirit. One point he made was that he is to a great extent agreed with the hon. Member for Thirsk (Mr. Tinton) but did not think it desirable to have one case going to the courts and one to the Minister. Why does he not agree to give this best form of appeal, that is, the courts? The Minister in making his case at the beginning of the afternoon based it almost entirely on the report of the Commission, and he gave his case away on two points. He said, first of all, that the Amendment passed in Committee would take away all power from the highway authority and and from the Minister. Exactly the same power remains with the highway authority. The only way in which they lose any power is that their case will be judged fairly by the courts, instead of by a Minister prejudiced in their favour.
The second point in respect of which he gave his case away was when he complained that a court considering a case of this sort would consider hardship and might be moved more by the circumstances of the individual than by policy. We want to see justice done to the individual, and not the policy of the Minister carried out and enforced, or any complaints against his policy dealt with by himself. I am not personally interested in Sir Leslie Scott or the Committee, but I wish to preserve to the people of this country the right to go to courts of law when their interests are affected. I should like to know why the Minister has changed his view, as he has apparently done during the past week. It was only last week that the Solicitor-General for Scotland moved into the Bill a Clause to make the appeal to the law courts applicable to Scotland. The Minister accepted and voted for Clause 6, with the Amendment in it. If he meant to take out that Sub-section, why should he vote for the Clause?
I think I know why the Minister made up his mind to change his views. He has had strong pressure brought against 2375 him by every official and bureaucrat in the country and he has not been strong enough to stand up against bureaucracy. I hope that the House will stand up against bureaucracy and reject the Amendment of the Minister, because I believe that it will be for the good of the country if it is rejected.
§ 7.0 p.m.
§ Mr. C. WILLIAMSI will keep the House for only one or two minutes after the speech of the learned Solicitor-General. If I may boil down his speech into one sentence, he said that in this case and in many other cases the Department interprets the law. That is absolutely pure doctrine of the Fascist party. We in this country have always laid down that when a man is aggrieved—and I am using the words of the new Clause—in any matter which affects his person and his property, he has a right of appeal to the courts. This matter does affect his property. You are taking away, for the first time in the history of the country, a man's right to go on to the main, roads of this country. You are then saying that if he is aggrieved he has to go into a court in which the question is tried by an official coming from London, who decides the matter in the interests of the Department with which he is connected. That is the position, as I understand it. Not a single Conservative upstairs or downstairs has asked for it. Even some of the Samuelite Liberals are shocked and horrified.
§ Mr. ISAAC FOOTWhat sort of Tory are you?
§ Mr. WILLIAMSI have always stood for liberty, which is more than some hon. Gentlemen in this House can say. The only people who have asked the Government for this, and who have pressed them here and upstairs for the position which the Government has now taken up, are the Socialist party. Well may the "Times" say that the Opposition will support them. That is the price that the Opposition has been paid. That is the price for their support all through the Bill—a nice precedent which the Socialists can use when they get into power. I would ask Conservatives not to support a complete reversal of the policy which was decided upstairs by the Committee which had the full facts before them, and time to discuss them, 2376 in connection with the rest of the Bill. I would ask the House not to reverse the opinion of the Committee, and not to be dragged, as the Minister has been dragged, by the wretched Socialist Opposition.
§ 7.3 p.m.
§ Sir FRANCIS ACLANDI am unwilling to give a decided vote on this matter and I am also unwilling to detain the House after the speech of the learned Solicitor-General. Two different views on this matter have already been given from these benches. We have to congratulate the party above the Gangway on the fact that they are the only party which are not divided on this subject. I look at this matter primarily from the point of view of an owner of land who will be affected by this Bill. I think I own four or five miles of highway to which this Bill is likely to apply. I should like to get back to the question as to what the issues are likely to be, and what their nature is likely to be. Are the issues primarily administrative or primarily judicial, or if there is an element of both, are they mainly administrative or mainly judicial'? One regards quarter sessions as a judicial body, and the Minister, acting on appeal from the local authority, as an administrative authority. I can visualise the sort of question that as a landowner I might want to bring up.
I see it this way: Is a certain access that I have claimed one necessary for agricultural purposes only, or one that I am likely to want to use for general purposes as well? Is the local highway authority acting unreasonably or not in requiring me to bury a certain drain, or line, or something of that kind, a certain number of feet deep in order that a road may safely go over it? It is extremely difficult for me, with such experience as I have had both of inquiries by inspectors of Government Departments and of petty and quarter sessions, to see the judicial element in matters of that kind. It seems to me that they are essentially questions for an official of the Department, who has experience of these particular matters. He knows the sort of thing that has happened and is happening all the time with regard to the sort of access which is regarded as reasonable, with regard to the sort of depth which it seems to be reasonable to require these lines and so on to be buried. It seems to me that he is the 2377 man, with the knowledge, more likely to give a reasonable answer in my case than a petty sessional or quarter sessional court.
There is just this further element in the matter: Quarter sessions is an administrative as well as a judicial body. We know that it has practically administrative functions. It was the old administrative authority, one of the historical administrative authorities dealing with local government questions. Then a whole mass of legislation came along which set up much more democratic bodies, county councils, district councils and parish councils and so on, and gave them administrative powers. Ought we to allow an appeal from the more modern, elective, democratic, House-of-Commons sort of local authority, namely, the county council, to the older, more unrepresentative administrative authority, namely, quarter sessions; or ought the matter to be kept in the main on purely administrative lines, as between the local authority on the one hand and then, when the subject has made use of his right to appeal, to be decided by—again I think the more representative authority—the Minister in his responsibility to this House? I would rather keep these things in the hands of the local authority primarily—the highway authority; then, when the subject has had his appeal, keep it again in the hands of an elected authority, namely, this House, to which the Minister is responsible. Therefore, as a person likely to be affected I think the proposal of the Minister is a considerable improvement on the proposals now in the Bill.
§ 7.8 p.m.
§ Mr. FYFEI should not have asked for the indulgence which this House traditionally gives to a maiden speech were it not that a great proportion of my life before joining this House has been spent in dealing with either legal or administrative matters before petty sessions and quarter sessions, and quite a considerable portion of the remainder in inquiries before officers of various Ministries. It does appear to me that if one takes the original view advanced by the hon. and gallant Member for Hitchin (Sir A. Wilson) one had a case put forward for the greater participation in and for greater power being given to justices of the peace in courts of summary jurisdiction in the administra- 2378 tive functions of the land, with a corresponding power of correction at quarter sessions. But as this discussion has developed, we have turned from that greater use of the unpaid judiciary to a question as to the difference of power of decision and the difference of rightness and satisfaction of decision as between the inquiry and these courts.
On that point, may I respectfully remind the House that one of the questions which I know and appreciate is troubling the minds of hon. Members is that the official of the Ministry who might have to conduct the inquiry will pay more attention to, and will be further swayed by, the views of local authorities and the views of the particular officials of these local authorities? One of the difficulties which many hon. Members must have found in going to distant parts to argue a case before either petty or quarter sessions is that either of these tribunals is very largely composed of members of the local authority who are dealing with these problems. It is very difficult, I know, and I should be the last to blame them, for these members to divorce their preconceived notions of policy, of particular facts and local conditions and endeavour to decide these questions when they come before them.
We have seen the activities of inspectors appointed by this very Ministry when dealing with the question of transport, in which they had traditionally been in touch with the officials of local authorities. There we have had on many occasions appeals coming before the inspectors of the Ministry and, since the new Act, appeals from the Commissioners. I have had the honour of appearing before these inspectors for local authorities, for public utility companies, and for private companies who are carrying on transport for gain. In no case have I ever heard any serious complaint by a disappointed litigant or anyone else as to the conduct of these inquiries by these inspectors, or of the inability of the parties being able to place their evidence before them, or as to the consideration which they obviously get before a, report is given to the Minister and before the Minister is able to announce his decision.
Hon. Members have raised the question of time and expense. I have tried to map 2379 out the time-table which is suggested by the Clause as it stands. The party aggrieved—and as hon. Members are aware that is a phrase which has been inserted from time immemorial merely to designate the disappointed person in a matter whose outcome is being discussed—is, according to this Clause, given 28 days to decide whether he will appeal to a court of summary jurisdiction. After that there is the question of getting the day fixed by that court. If he is then disappointed with the decision which comes from the court of summary jurisdiction, he appeals to quarter sessions. He will have 14 days for putting in his notice of appeal. He will then have to face the consideration whether his appeal will come up at that court of quarter sessions, or should it come within the next 15 days, be held over until the next court of quarter sessions which will not come for some three months ahead. In all, at a modest computation, you will have to await a period in all probability of three to four-and-a-half months before this matter can come before quarter sessions.
I suggest to the House that with all the admiration which is held in all quarters of the House for those who unstintingly and ungrudgingly give their services free to the community, whether it be in a judicial or quasi-administrative capacity, it is extremely difficult for them, just as it is for petty sessions, to divorce from their minds, in coming to a decision on a question of policy and administration, those ideas which have been in their minds for most of their lives, which may be for or against the matters which they have to decide out of this appeal. At the present day it is practically impossible to get an appeal of this type to quarter sessions, involving questions of this character, and to inform the court on such questions without an expenditure of anything from £100 to £150. In an inquiry before the Minister, as hon. Members have suggested, you are dealing with someone who is familiar with the matter and can deal with it from the experience which years have given to him in dealing with similar matters all over the country. In matters of expense as well as matters of knowledge you are dealing with a court which can give a hearing of which no litigant need be afraid, and can give a decision after that hearing has been 2380 held in public, with the courtesy and consideration which has always been found in such hearings in the past, and with that lack of expense which it has always been the endeavour of Ministers to promote in connection with such hearings.
I suggest that no one who seeks to defend our liberties, judicial or otherwise, our liberties in regard to anything that matters, who wishes our concerns publicly ventilated and justly and properly decided, need he afraid of these courts, if, as I am quite sure, the courts of inquiry follow the traditions and the course which have satisfied so many in connection with problems of administration in the past. Not merely in transport or in housing but, to take a very analogous case, the question of town planning and matters of the interim development order, there is a point which I respectfully suggest meets the objections of hon. Members who are afraid of the influence which will be wielded by officers of the local authorities. Time and again since 1922, when the interim development orders were made for town planning, those who wished to develop had to go before the inspector of the Minister and to put forward their suggestions for development against the suggestions of the local authority concerned. Again, history shows us that they have not been disappointed and they have had nothing to be aggrieved over in the results that they obtained. May I once again seek the indulgence of the House in allowing me to make these remarks, and say that I thank the House for the patience and courtesy which they have shown me on this occasion.
§ 7.18 p.m.
§ Mr. H. WILLIAMSMay I be permitted to congratulate my old friend the new Member for West Derby (Mr. Fyffe) on his brilliant maiden speech, delivered, as I know without any midnight oil and prompted by a sincere conviction on the subject matter of this Debate, on which I regret that I have now to differ from him. I was hoping as the result of one interruption that I made during the Minister's speech, and a second interruption that I made during the speech of the Solicitor-General, that we should have had explained to us what is the difference between judicial, quasi-judicial and ad- 2381 ministrative matters. I am told that in the Court of First Instance the judges said in a case: "This matter is purely administrative." When it went to the Court of Appeal the Court of Appeal said: "We think this matter is quasi-judicial." When it got to the House of Lords they had no doubt at all that the matter before them was a judicial one. If persons of such eminence differ, I am not in the least surprised that the Solicitor-General did not attempt to define to us what were judicial and administrative functions. In my judgment which, having regard to the disagreement among the experts, is as good as that of anybody else, for we get no guidance from the experts, it would appear that a decision to make a road from here, say, to Brighton is an administative decision. The decision that that road shall follow a certain route is an administrative decision, based on expert advice. As a result of that decision to lay out that road I ask for permission to build a house in a certain place, and that permission is refused. Then the question whether permission has been reasonably or unreaonably refused seem to me to be entirely a judicial one. If it is not, then there is no case, which you decide after hearing evidence as to the facts or hearing opinion, as you are forced to do in a great many cases, which is a judicial one. If that be the view, then it seems to me we might as well shut up the law courts except to say what particular words mean when a doubt arises, because we have said that everything else is administrative.
With great respect to my hon. and learned Friend, we are now applying these things in an entirely new sphere. We are saying to the people of England, as was so well said by the hon. Member for Torquay (Mr. C. Williams) "You are to be deprived for all time of a right that you already have to make access to the highway, on this condition, that permission to make access must not be unreasonably withheld." That is obviously an enormous invasion into private rights, not merely the private rights of landlords but the private rights of tenants. Every occupier of land in England is affected by this Bill in Clause 1 or Clause 2. It seems to me an extraordinary thing that when the highway authority, prompted by the Minister of Transport, undertake a certain enterprise and when 2382 that enterprise interferes, as it may do, unfairly with private rights, the appeal is from Caesar to Caesar. It is the Minister who has initiated the particular enterprise which gives rise to the grievance and the appeal is back to the Minister. I have not sufficient experience of the quality of petty sessions and quarter sessions to say whether they are the most appropriate tribunal. It may well be the case that an ad hoc tribunal is wanted, not dissimilar to the House of Lords tribunal under the Ministry of Pensions Act. If we had an ad hoc tribunal independent of the Minister we should certainly get a national policy, uniform in principle.
It seems to me that the question of national policy in this matter has been very much overdone. Let us try to visualise the situation that may arise. I want either to put up a building or to get access. Because of the views not of a highway authority, the popularly elected people, but because of the views of a particular county surveyor, or deputy county surveyor, or sub-deputy, and ditto in the case of boroughs, who may say, "We do not think that you ought to have that right," I am held up. I want some means of effective check against the autocracy of these officials who are not directly responsible to the people. I believe that if we had an immediate and effective check we should not, have cases coming along to the courts. My legal friends on both sides have taken the view that every case is going to the courts. Our laws are most successful when no cases go to the courts, and I am looking forward to something which will be such an effective check to the autocracy of bureaucrats that they will know that they have to do their job in such a way that people are not unreasonably aggrieved.
In a great many cases it will be a matter of complete indifference technically where you make your access. You may very well be able to make the access 100 yards or a quarter of a mile away, and it will make not the slightest difference to the safety or to the layout, but you will be saving some man some amenity which he regards as essential. If the appeal is only to the Minister, obviously in nine cases out of 10 there will be the tendency on the part of the Minister—I am not saying that it will be this particular Minister but whoever performs the Ministerial function—to 2383 back up his own people, and in this matter the surveyors are his own people. Therefore, I want some appeal to some separate authority. I say frankly that I think the Minister has done, his best, according to the lights within him, to put this matter right. Where I have differed from him throughout is that my outlook on the problem has been different from his. He says that you cannot administer this matter if you are held up by differing local conditions. The question of the layout of our highways, the general width, and the general question of amenities still remains an administrative function. That is what you seek to do. That is what the highways authorities, stimulated by the circulars and instructions of the Minister, will seek to do, but if in the application of general principles they inflict grave injustice on individuals then those individuals ought to have the right of appeal to some independent body.
The question to be decided is the question whether consent has been unreasonably withheld. The normal tribunal, if they think that consent has been reasonably withheld, will confirm the action of the highway authority. It is only in those cases where unreason has been shown that the desired protection is necessary. When one visualises how stiff in manner are those who know that against their decision there is no appeal, there is no human being in the wide world that I am prepared to entrust with autocratic powers. I do not believe in dictatorships, whether on a big scale or a little scale. There ought always to be some authority which can check unrestricted use of power. Because of that I am sorry that the Minister has made this proposal. If he wanted some national policy he should have set up some other form of tribunal other than himself. Although his present proposal is much better than that in the Bill, if my hon. and gallant Friend presses to a Division his opposition to the Minister's Amendment, I shall find myself forced to go into the Lobby with him.
§ 7.27 p.m.
§ Mr. PETHERICKI am sorry to delay the House, and I will not do so for very long, but there are certain views which have not been expressed which I should like to put before the House. In this Debate only one supporter of the Govern- 2384 ment has spoken in favour of the Minister's Amendment. I should like to draw the attention of my right hon. Friend the Leader of the House to that very interesting fact. We have had two speeches in favour of the Amendment from the Liberal benches and one against. We have had one speech in favour of the Government from the. Socialist benches, but there has been no speech from the National Labour benches and the Liberal National Benches who support the Government in the ordinary way. I do not think, if I may say so with great respect, that it is right to go absolutely counter to the expressed wishes of the majority of the Government's supporters in a Case such as this.
Many of us feel very strongly about the rights of the individual in this matter. I took up a different line on the Housing Bill, for reasons which I thought were perfectly adequate. I believe that wherever possible a person aggrieved should have the right to go to the courts of law. I say "wherever possible" advisedly, because I believe that in certain cases the administrative disadvantages of allowing an appeal to a court of law are overwhelming. In the case of the Housing Bill I thought that if we had given such an appeal it would have ruined slum clearance and made it impossible to carry it out. But this Bill seems to be in quite a different category. I should like to draw a careful distinction between Clause 1 and Clause 2. If the Minister had devoted his speech solely to a defence of his action in withholding an appeal in regard to Clause 1 I could not possibly have opposed him, because under that Clause the right hon. Gentleman is responsible for the safety of the roads. It is an administrative function and he is responsible to Parliament. It is a national matter.
Under Clause 2 quite a different position arises. I agree that the question of access comes in, but all the powers which are necessary with regard to access are contained in Clause 1, so far as the safety of the roads is concerned. In Clause 2 we are giving power to withhold access, to prevent ribbon development on the roads. That is purely an amenity matter. Every local authority will carry out the Clause in order to preserve the amenities of a particular locality. Neither the Minister nor the Solicitor-General has 2385 made out a case proving that these two Clauses are on all fours; and the right hon. Gentleman would be well advised, even at this late hour, to accept a compromise, giving the Minister power to hear appeals under Clause 1 and allowing an appeal to the courts under Clause 2. The arguments have been against the Government in this matter. As Dr. Johnson once said, if we cannot out-vote them, we can at least out-argue them. I do not want to be in the position of having to vote against the Government. There is a strong case for giving the further concession—the concession which the Minister has made does not go very far—of retaining to the Minister power to hear appeals under Clause 1 and granting an appeal to the ordinary courts of law under Clause 2. I hope he will be able to make some concession of that kind.
§ 7.34 p.m.
§ Mr. SPENSI have sat during the whole of the Debate, because I think this is a matter of great importance to my constituents. I give place to no one in my desire that in no circumstances should a Minister undertake duties which should be performed by courts of law. My difficulty about the Bill, and the reason why I am going to support the Amendment, is that the first two Clauses prohibit all subjects doing certain things, but nowhere in the Bill do I find the reasons why these prohibitions on our liberties are imposed or the objects of the two Clauses. It is true that the objects of the two Clauses are to protect life and limb and the amenities of a district, but nowhere in the Bill is there any indication why these restrictions are imposed on our liberties. Starting with the fact that there is no expression of the reasons for these two Clauses, I have to consider which is the better of the two alternative tribunals to deal with a decision of the highway authority. The highway authority will doubtless act under the influence of a series of circulars from the Minister designed to unify policy throughout the country, and under the influence of these circulars they will refuse certain access and certain buildings.
It is suggested that the subject should have an appeal to petty sessions for quarter sessions from such a refusal. These are tribunals which are supposed to administer the law. Their function will be 2386 to decide whether or not the highway authority has unreasonably refused leave. What question can they ask themselves but whether the body of men composing the highway authority have reasonably come to the conclusion to which they have come? It is not for them to say whether they would have decided differently; it is for them to make up their mind as to whether it is possible to say that the highway authority has definitely acted unreasonably. If the suggestion is that you should substitute the petty sessions or quarter sessions for the highway authority you would get different standards and different decisions all over the country, and no co-ordination. In those circumstances surely the alternative is this. The highway authorities will be acting in a uniform manner on instructions or suggestions received from the Minister; they will give their decision in a particular case. If an individual says that the decision based upon the uniform policy of the country is grossly unfair to him, he will ask, under the Government proposal, for a local inquiry to be held. The report will go in and the Minister will make his decision, giving his reasons. To my mind the individual who has suffered will have a far better chance of getting injustice dealt with satisfactorily by the procedure proposed in the Amendment than by the procedure in the Bill. I have listened to the Debate the whole afternoon and have tried to make up my mind as to which is more likely to do good to my constituents, and in my view the Amendment is much more likely in this particular case to do good.
§ 7.40 p.m.
Mr. ASSHETONI should like to add a word of congratulation to the hon. and learned Member for West Derby (Mr. Fyfe) on his admirable maiden speech. He is an old friend of mine, and I am sure the House will welcome him warmly to its debates. I am in a great difficulty, because I like neither the Clause nor the Amendment. I appreciate the fact that the Minister desires to achieve uniformity. Any special tribunal would satisfy this desire of the Minister. I should be prepared to accept any reasonable tribunal, except that of the Minister himself. The present Minister of Transport has been such a splendidly active Minister, that I feel he is the last man in the world who would be competent to judge in matters of this kind and, therefore, I have no 2387 alternative except to vote against the Amendment.
§ 7.41 p.m.
§ Lieut.-Commander AGNEWThe hon. and learned Member for Ashford (Mr. Spens) has said that if the provisions of the Bill were administered by the courts, the judges or the chairmen of quarter sessions would have no indication as to the intention of Parliament in passing the Measure, because nowhere in the Bill are these intentions stated. A Preamble, of course, is not a part of a Bill, but the Preamble of this Bill would, I think, furnish some indication as to the intentions of Parliament. I am grateful to the Minister for the concession he has made, but it still contains a fatal defect, that when all is said and done, when every chance has been given to the aggrieved person to make out his case, when there has been all the publicity of a local inquiry and the Minister has stated his reasons for coming to his decision, it is the Minister who is the judge in the case. He is the man who started the whole proceedings, and, unfortunately, he is the
§ man who will decide the matter. I should have preferred that the Minister could have seen his way to agree to a compromise, that there should be a division between the matters contained in Clause 1 and Clause 2. The question of access is dealt with in Clause 1; it really is a dead letter in Clause 2.
§ I would put this submission to the House. Under Clause 1 the highway authority passes its resolution and the road is then planned of a certain width. Nothing should stop the carrying out of that plan. That is primarily a case for administrative decision. But in Clause 2, the amenity Clause, you have an entirely different set of affairs, and there is a proper case for the courts to decide where a person feels that he has been aggrieved. I do not think that the Minister has brought forward a compromise which is in the true spirit of that justice which we all so much desire to secure.
§ Question put, "That the words proposed to be left out stand part of the Bill."
§ The House divided: Ayes, 57; Noes, 201.
2389| Division No. 304.] | AYES. | [7.45 p.m. |
| Acland-Troyte, Lieut.-Colonel | Ganzoni, Sir John | Rhys, Hon. Charles Arthur U. |
| Adams, Samuel Vyvyan T. (Leeds, W.) | George, Major G. Lloyd (Pembroke) | Rutherford, John (Edmonton) |
| Agnew, Lieut.-Com. P. G. | Gluckstein, Louis Halle | Salt, Edward W. |
| Apsley, Lord | Gower, Sir Robert | Shaw, Captain William T. (Forfar) |
| Assheton, Ralph | Gretton, Colonel Rt. Hon. John | Smith, Sir J. Walker- (Barrow-in-F.) |
| Astbury, Lieut.-Com. Frederick Wolfe | Gritten, W. G. Howard | Somerville, Annesley A. (Windsor) |
| Atholl, Duchess of | Heilgers, Captain F. F. A. | Somerville, D. G. (Willesdan, East) |
| Balfour, George (Hampstead) | Henderson, Sir Vivian L. (Chelmsford) | Spencer, Captain Richard A. |
| Bower, Commander Robert Tetton | Janner, Barnett | Taylor, C. S. (Eastbourne) |
| Broadbent, Colonel John | Lennox-Boyd, A. T. | Thorp, Linton Theodore |
| Buchanan, George | Lewis, Oswald | Turton, Robert Hugh |
| Burghley, Lord | Lyons, Abraham Montagu | Ward, Irene Mary Bewick (Wallsend) |
| Cochrane, Commander Hon. A. D. | Macdonald, Capt. P. D. (I. of W.) | Wells, Sydney Richard |
| Courthope, Colonel Sir George L. | Moreing, Adrian C. | Whiteside, Borras Noel H. |
| Cruddas, Lieut.-Colonel Bernard | Moss, Captain H. J. | Williams, Charles (Devon, Torquay) |
| Everard, W. Lindsay | Nation, Brigadier-General J. J. H. | Williams, Herbert G. (Croydon, S.) |
| Fielden, Edward Brocklehurst | Nunn, William | Wise, Alfred R. |
| Foot, Dingle (Dundee) | O'Neill, Rt. Hon. Sir Hugh | |
| Foot, Isaac (Cornwall, Bodmin) | Petherick, M. | TELLERS FOR THE AYES.— |
| Ford, Sir Patrick J. | Remer, John R. | Sir Arnold Wilson and Captain |
| Waterhouse. | ||
| NOES. | ||
| Acland, Rt. Hon. Sir Francis Dyke | Brown, C. W. E. (Notts., Mansfield) | Craddock, Sir Reginald Henry |
| Adams, D. M. (Poplar, South) | Brown, Col. D. C. (N'th'l'd, Hexham) | Crookshank, Capt. H. C. (Gainsb'ro) |
| Albery, Irving James | Brown, Rt. Hon. Ernest (Leith) | Croom-Johnson, R. P. |
| Anstruther-Gray, W. J. | Brown, Brig.-Gen. H. C. (Berks., Newb'y) | Cross, R. H. |
| Aske, Sir Robert William | Burnett, John George | Crossley, A. C. |
| Attlee, Rt. Hon. Clement R. | Cadogan, Hon. Edward | Daqgar, George |
| Baldwin, Rt. Hon. Stanley | Campbell, Sir Edward Taswell (Brmly) | Davies, Maj. Geo. F. (Somerset, Yeovil) |
| Balfour, Capt. Harold (I. of Thanet) | Cayzer, Maj. Sir H. R. (Prtsmth., S.) | Dickie, John P. |
| Banfield, John William | Cazalet, Thelma (Islington, E.) | Dobbie, William |
| Barclay-Harvey, C. M. | Cazalet, Capt. V. A. (Chippenham) | Doran, Edward |
| Barrie, Sir Charles Coupar | Chapman, Sir Samuel (Edinburgh, S.) | Duckworth, George A. V. |
| Bernays, Robert | Clarke, Frank | Dugdale, Captain Thomas Lionel |
| Bevan, Aneurin (Ebbw Vale) | Clarry, Reginald George | Duncan, James A. L. (Kensington, N.) |
| Bossom, A. C. | Cleary, J. J. | Dunglass, Lora |
| Bowater, Col. Sir T. Vansittart | Cocks, Frederick Seymour | Edwards, Sir Charles |
| Bowyer, Capt. Sir George E. W. | Colville, Lieut.-Colonel J. | Elliston, Captain George Sampson |
| Braithwaite, J. G. (Hillsborough) | Cooper, T. M. (Edinburgh, W.) | Elmley, Viscount |
| Brocklebank, C. E. R. | Cove, Willian G. | Emrys-Evans, P. V. |
| Erskine-Bolst, Capt. C. C. (Blackpool) | Lindsay, Kenneth (Kilmarnock) | Radlord, E. A. |
| Evans, David Owen (Cardigan) | Lindsay, Noel Ker | Ramsay, Capt. A. H. M. (Midlothian) |
| Evans, R. T. (Carmarthen) | Lister, Rt. Hon. Sir Philip Cunliffe- | Ramsay, T. B. W. (Western Isles) |
| Fraser, Captain Sir Ian | Llswellin, Major John J. | Ramsbotham, Herwald |
| Fyfe, D. P. M. | Logan, David Gilbert | Rea, Sir Walter |
| Galbraith, James Francis Wallace | Lovat-Fraser, James Alexander | Reid, William Allan (Derby) |
| Gardner, Benjamin Walter | Lumley, Captain Lawrence R. | Robinson, John Roland |
| Gibbins, J. | Lunn, William | Rosbotham, Sir Thomas |
| Goldie, Noel B. | Mabane, William | Runge, Norah Cecil |
| Goodman, Colonel Albert W. | MacAndrew, Major J. O. (Ayr) | Russell, Alexander West (Tyntmouth) |
| Graham, D. M. (Lanark, Hamilton) | McCorquodale, M. S. | Rutherford, Sir John Hugo (Liverp'l) |
| Graves, Marjorie | Macdonald, Gordon (Ince) | Salter, Dr. Atfrad |
| Greenwood, Rt. Hon. Arthur | MacDonald, Rt. Hon. J. R. (Seaham) | Samuel, Rt. Hon. Sir H. (Darwen) |
| Griffith, F. Kingsley (Middlesbro', W.) | MacDonald, Rt. Hon. M. (Bassetlaw) | Samuel, M. R. A. (W'ds'wth, Putney) |
| Grimston, R. V. | McEntee, Valentine L. | Shakespeare, Geoffrey H. |
| Groves, Thomas E. | McGovern, John | Simon, Rt. Hon. Sir John |
| Guy, J. C. Morrison | Maclean, Neil (Glasgow, Govan) | Sinclair, Maj. Rt. Hn. Sir A. (C'thness) |
| Hacking, Rt. Hon. Douglas H. | McLean, Dr. W. H. (Tradeston) | Smith, Tom (Normanton) |
| Hales, Harold K. | Magnay, Thomas | Smithers, Sir Waldron |
| Hall, Georqe H. (Merthyr Tvdvil) | Maitland, Adam | Somervell, Sir Donald |
| Hamilton, Sir R. W. (Orkney & Zetl'nd) | Makins, Brigadier-General Ernest | Spans, William Patrick |
| Hammersley, Samuel S. | Manningham-Buller, Lt.-Col. Sir M. | Stanley, Rt. Hon. Lord (Fylde) |
| Hannon, Patrick Joseph Henry | Margesson, Capt. Rt. Hon. H. D. R. | Stanley, Rt. Hon. Oliver (W'morland) |
| Harris, Sir Percy | Mason, David M. (Edinburgh, E.) | Stewart, J. Henderson (Fife, E.) |
| Harvey, George (Lambeth, Kenningt'n) | Mayhew, Lieut.-Colonel John | Storey, Samuel |
| Headlam, Lieut.-Col. Sir Cuthbert | Mellor, Sir J. S. P. | Strauss, Edward A. |
| Hore-Belisha, Rt. Hon. Leslie | Mills, Sir Frederick (Leyton, C.) | Strauss, G. R. (Lambeth, North) |
| Hornby, Frank | Mills, Major J. D. (New Forest) | Stuart, Hon. J. (Moray and Nairn) |
| Horsbrugh, Florence | Mitchell, Sir W. Lana (Streatham) | Sueter, Rear-Admiral Sir Murray F. |
| Howard, Tom Forrest | Molson, A. Hugh Elsdale | Sugden, Sir Wilfrld Hart |
| Howitt, Dr. Alfred B. | Moore, Lt.-Col. Thomas C. R. (Ayr) | Summersby, Charles H. |
| Hudson, Capt. A. U. M. (Hackney, N.) | Morgan, Robert H. | Tate, Mavis Constance |
| Hume, Sir George Hopwood | Morris-Jones, Dr. J. H. (Denbigh) | Thomas, James P. L. (Hereford) |
| Hurd, Sir Percy | Morrison, G. A. (Scottish Univer'ties) | Thorns, William James |
| Jackson, Sir Henry (Wandsworth, C.) | Muirhead, Lieut.-Colonel A. J. | Tinker, John Joseph |
| James, Wing-Com. A. W. H. | Munro, Patrick | Todd, A. L. S. (Kingswinford) |
| Jenkins, Sir William | O'Donovan, Dr. William James | Tufnell, Lieut.-Commander R. L. |
| Johnstone, Harcourt (S. Shields) | Orr Ewing, I. L. | Wallace, Captain D. E. (Hornsey) |
| Jones, Sir G. W. H. (Stoke New'gton) | Paling, Wilfred | Wallace, Sir John (Dunfermline) |
| Jones, Morgan (Caerphilly) | Palmer, Francis Nosi | Ward, Lt.-Col. Sir A. L. (Hull) |
| Ker, J. Campbell | Parkinson, John Allan | Williams, Edward John (Ogmore) |
| Kerr, Lieut.-Col. Charles (Montrose) | Pearson, William G. | Williams, Thomas (York., Don Valley) |
| Kerr, J. Graham (Scottish Univ.) | Peat, Charles U. | Wilmot, John |
| Kirkpatrick, William W. | Penny, Sir George | Womersley, Sir Walter |
| Lamb, Sir Joseph Quinton | Percy, Lord Eustace | Wood, Rt. Hon. Sir H. Kingsley |
| Law, Richard K. (Hull, S. W.) | Pickering, Ernest H. | Wood, Sir Murdoch McKenzie (Banff) |
| Lawson, John James | Pickthorn, K. W. M. | Worthington, Sir John |
| Leech, Dr. J. W. | Ponsonby, Col. C. E. | |
| Leonard, William | Powell, Lieut.-Col. Evelyn G. H. | TELLERS FOR THE NOES.— |
| Liddall, Walter S. | Procter, Major Henry Adam | Mr. Blindell and Captain Hope. |
Lords Amendments considered, and agreed to.
§ Proposed words there inserted in the Bill.
§ 7.52 p.m.
Captain HUDSONI beg to move, in page 8, line 27, after "applicant," to insert:
and sufficient particulars as to the consent required.The object of the Amendment is to make the purpose of the Clause clearer.
§ Amendment agreed to.