CLAUSE 2.—(Amendment of s. II of principal Act.) (Hansard, 15 July 1943)

§ Mr. Hutchinson (Ilford)
This Clause seeks to amend Section II of the principal 402 Act. The alteration which is sought to be made will have the effect of depriving certain individuals in certain circumstances of rights which are at present enjoyed by them under the principal Act. The matter is not perhaps in itself a very grave one. But this Amendment will have the effect of taking away rights at present enjoyed by these persons for the protection of their property and of leaving them, without any redress, in the hands of the highway authorities. Therefore, my hon. Friends and I thought it right to put down an Amendment to leave out this Clause, in order to draw attention—

§ The Chairman
It is not necessary to put down an Amendment in that form. The Question put from the Chair is, "That the Clause stand part of the Bill," and it is not necessary to move an Amendment. Perhaps the hon. and learned Member will keep that in mind.

§ Mr. Hutchinson
Then perhaps I may deal with the Clause in that way. Some of my hon. Friends and I have thought it right to draw attention to this matter, because it seemed to us that what is proposed is really an unwarranted restriction of the rights secured to these persons by the existing law. In order to explain the purpose of this Amendment, I shall have to draw attention to the effect of Section II of the principal Act. Under that Section, a person who erects buildings or opens an access in contravention of the restrictions made by the highway authority, commits an offence. The Section also provides that, whether proceedings are taken in respect of that offence or not, the highway authority may proceed to remove the offending building or to close up the access which has been opened in contravention of the restriction. But, if it has not been determined in any judicial proceedings that the buildings or the access contravene the restrictions, then, before the highway authority may remove the offending building or close the access, they must first deliver to the person who is entitled to possession of the land 28 days' notice of their intention to remove the building or to stop up the access. If that person is aggrieved by the decision of the highway authority, it is open to him, within that period of 28 days, to appeal to the local magistrates against the decision of the highway authority, and the local magistrates may deal with the case 403 in the way which seems to them to be fit. That means that under the existing law the magistrates are at liberty to make whatever order, upon the appeal, they consider to be right. They may allow the building, for example, or the access to remain notwithstanding that it contravenes the restrictions.
Now let us see what Clause 2 of this Bill proposes. It proposes to restrict the right of the magistrates to deciding the question whether a building or an access contravenes the restrictions or whether it does not and nothing more. If a person appeals against the decision of the highway authority, all that the magistrates are required, and, indeed, all that they are empowered to do, if this Clause is accepted, is to determine whether or not the building or the access contravenes or does not contravene the restrictions laid down by the highway authorities. If the magistrates come to the conclusion that the building or the access contravenes the restriction, they are bound to say so, and thereafter the authority are entitled to remove the building or close the access, irrespective of any other considerations whatever. What is going to be the result? Take a case where the contravention of the restriction imposed by the highway authority is of the most trivial and insignificant character imaginable. The building may infringe the restriction by being a few feet within the prescribed distance; it may be a little nearer to the centre of the road than it ought to be; or, again, the highway authority, by their own action, may have led the person who erected the building to suppose that they had no objection to its being erected within the prescribed distance or that they had no objection to the access being opened contrary to the restriction. When one is dealing with highway authorities, and, indeed, any public authorities, that is the sort of case that sometimes happen. You may get a case where a person, in a perfectly bona fide way, believes, from something which has been done or omitted to be done by the authorities concerned, that the authority has no objection to what he is about to do. Therefore, he proceeds to infringe some restriction, quite unwittingly and in a manner which may have no consequence whatever.
Under the law as it stands, under the principal Act of 1935, such a person is free to appeal to the local magistrates 404 and say, "Although I have infringed this restriction, I did it unwittingly," or "My infringement is so trivial that it cannot affect this road at all, and therefore I am aggrieved that the highway authority should take away the building or close up the access, and, not only that, but make me pay for doing it." Then, under the existing law, it is open for the magistrates to say that the infringement is a trivial matter, it does not affect the interest of the highway at all, or that it is a matter which the highway authorities have really brought upon themselves by their own action, and, therefore, although it infringes the restriction they propose to allow it to remain. That is, as I understand, the position as the law is at present. If this Clause is passed, then the magistrates will have to take quite a different course. They will be restricted in their hearing of the case to the question of whether the restriction has been infringed or whether it has not. If they come to the conclusion that the restriction has been infringed, then they are bound to say so and it is then open to the highway authority, without any restriction upon their action at all and no matter how trivial the restriction may be, to remove the building or close the access. It is open to them to require that the building shall be removed and that the Act shall be complied with. It is not a good thing for any administrative authority to act in matters in which the rights of individuals are likely to be infringed without any right of appeal on the part of the individual who is affected to a higher authority. We all act better when we know that what we do may be subject to review.
I do not in the least desire to suggest that the highway authorities may act in an unreasonable way in matters of this sort. As the Committee know, I very often speak in this House in the interests of local authorities. But one knows from experience that all sorts of questions arise in matters of this sort concerned with the setting of precedents, the desire to avoid doing something which may be regarded afterwards as a precedent for the infringement of their restrictions. Considerations of that sort enter into decisions taken on these matters by local authorities. Therefore it is very undesirable, when we are going to interfere with the rights of individuals, as we are going to interfere with them in this Measure, and as we have 405 already interfered with them in the principal Act, that we should leave individual rights solely at the discretion of the administrative authorities.
I think I am right in saying that Section II of the principal Act has never been regarded as a satisfactory statutory provision. I do not regard it myself as a satisfactory provision. It is open to a number of substantial objections. On the Second Reading Debate I referred to these matters, and I suggested to my hon. Friend the Parliamentary Secretary that the court of summary jurisdiction to which these appeals are sent by Section II is not a suitable tribunal to determine matters of this sort at all. Courts of summary jurisdiction have a great deal' of work to do. Cases of this nature are likely to last a long time. They often involve the consideration of technical and scientific evidence of plans and arguments by the parties interested. That is not a suitable case to try in a court of summary jurisdiction. Some day there will have to be set up Ministerial tribunals of a special' character to deal with cases of this nature where upon administrative grounds it is proposed to interfere with the rights of individuals. Until that time comes and tribunals of that nature are brought into existence, it is an undesirable practice to send these appeals upon administrative matters to magistrates' courts. I for my part would much prefer that my hon. Friend's Ministry should hear the appeals themselves. It is much more satisfactory in an administrative matter of this nature that the Minister himself rather than the court of summary jurisdiction should hear the appeal.
On the Second Reading Debate my hon. Friend the Parliamentary Secretary drew my attention to Section 7 of the Act, in which there is a right of appeal to a Minister upon the lines that I am suggesting. But that is a right of appeal which cannot be exercised when a person has unwittingly contravened restrictions made under the Act and where the contravention is in fact in existence. The right of appeal under Section 7 is only a right of appeal where the highway authority have refused their consent to a proposed building or proposed access. That is an entirely different matter from that with which Section II it is concerned. What we are concerned with here are infringements that have already taken place. I would invite 406 my hon. Friend to consider whether he could not take back this Clause altogether and reconsider the matter of appeals in the case of infringement of restrictions of this nature.
As I was saying to the Committee a few moments ago, where we are dealing with legislation which interferes with the rights of individuals in respect of material matters connected with their property, it is the duty of this House to be particularly careful that their rights shall be safeguarded as far as we can safeguard them by giving some appeal to a higher authority. We have in the past interfered, and I think that in the future we shall have to interfere to a very considerable extent, with the rights of individuals in connection with their property rights. The public will, I think, accept that, provided that they are sure that they are not left wholly in the hands of the administrative authorities and that there is secured to them some right of appeal to an independent authority which will be able to determine in a manner satisfactory to themselves—by that I mean in a judicial manner—whether the proposed infringement of their rights is necessary in the public interest or whether it is not. The English people are very jealous of their individual rights. They are prepared, if they think it is in the public interest, for them to do so, to surrender their rights, provided that before they are asked to do that they are given a full opportunity of having their case heard. That is precisely what this Clause will prevent persons whose rights are interfered with by the principal Act from doing. It is for that reason that I have occupied the time of the Committee rather longer than I had intended by describing this complicated matter, and it is for that reason that I invite my hon. Friend the Parliamentary Secretary to consider whether the whole structure of this legislation ought not to be reconsidered in the light of the consideration I have been endeavouring to put forward.

§ Mr. Molson
I support the Amendment.

§ Mr. Noel-Baker
I make no complaint whatever of the time that my hon. and learned Friend has given to this point. It is a matter of great importance, and I hope that the Committee will not complain if I take a few minutes to answer. I am very anxious to be in full agree- 407 ment with him in this as on the rest of the Bill. I will deal first with what he said about the case where a man puts up a building in ignorance of the provisions of the Act and where in fact there is no serious damage done to the public interest. Perhaps my hon. and learned Friend will be reassured, if I tell him that in fact the practice which is pursued is that, if such a case arises, the highway authority invites the developer to put in an application for consent to the development, and consent is given if there is no objection of substance to the development which he has begun. If, of course, there is an objection of substance, it is precisely the offence which the Act of 1935 was designed to prevent, and I think it would be very difficult to change existing arrangements in the way which my hon. and learned Friend suggests.

§ Mr. Hutchinson
May I ask my hon. Friend what authority he has to compel the highway authority to take the course he has just suggested, which is the whole point?

§ Mr. Noel-Baker
In point of fact, that is what they do and always have done, and I have not heard of a single case where the thing has gone wrong, and I hope that it is working to the general satisfaction of the citizens of the country. If I may come back again to the wider point of the right of appeal which he raised on the Second Reading, my hon. and learned Friend asked me then to study the matter and look at it all again, and I have done so with the greatest care. I studied what he said himself, and I will read a rather extensive passage from his own speech on the Second Reading. He said, in Column 1880 of the OFFICIAL REPORT, that there ought to be a general appeal against a decision of a highway authority to refuse consent to access. He said: That was an important right. It is always a desirable thing that when an administrative authority has power to make certain decisions which affect the rights of individuals very materially there should be some right of appeal against their decision. The Government fully agree with that view. He went on to say: That right existed under Section r. By this Amendment my hon. Friend proposes to take it away"— I have not, but I will proceed— 408 But in any event an appeal against the local authority's decision to a court of summary jurisdiction is not a desirable form of appeal. I agree. He goes on: I accordingly invite the Parliamentary Secretary to reconsider the whole position under Section II of the principal Act from these two points of view—first, whether there ought not to be some right of appeal against the decision of the local authority to refuse a right of access in an individual case; and, secondly, whether it is desirable that an appeal of that sort should go to a court of summary jurisdiction. Such a court is not a tribunal which is well suited to determine appeals from an administrative authority. If the appeal went to the Minister that would be more satisfactory."—[OFFICIAL REPORT, 1st July, 1943; col. 1880, Vol. 390.] I think that my hon. and learned Friend missed the point. That is exactly what, in fact, does happen. It is laid down in the Statute of 1935. In Section 7 of the Act of 1935 there is a right of appeal against the refusal of consent to development. It is not to a court of summary jurisdiction, which he thinks is open to objection. It is to the Minister, which he thinks is desirable, and such appeals come very frequently. They come to me and I have to make decisions which seem to me right in the light of the expert, scientific and other, advice which I receive.

§ Mr. Hutchinson
My hon. Friend will appreciate that this is only an appeal against the refusal of consent. Section II of the principal Act and this Clause are dealing with the different case where the infringement has actually taken place, and the question is whether it should be allowed to remain.

§ Mr. Noel-Baker
In that case infringement of the original Act has happened, and surely it is essential that the Act should be carried out. The intention of the Act was that the court of summary jurisdiction should be given power to stop infringements. If it is purely a matter of a technical infringement without any real planning interest being involved, if the developer makes application to the Highway Authority for consent, then consent is given. But if it is a matter of substance, surely we must uphold the purpose of the Act of 1935 by ensuring that the court shall establish the infringement when it has occurred. Under the Act the intention of Parliament, as we believe, was that the court should merely decide whether there had been infringe- 409 ment and should not be able to say that the building on its merits should remain. That, I feel convinced, is right, and I think it would be most unfortunate if this Clause were deleted, because the court of summary jurisdiction might have the power—there is a doubt about it; it has never been raised in any court—both to make a decision in law and decide also whether the building should come down. That would not promote the purposes which we have in view in putting this Bill forward. This Bill is intended in part to get rid of buildings which have been put up under temporary consent during the war. But if the court of summary jurisdiction, of which the hon. and learned Gentleman does not think very much in this context, had the power to say, "There has been a contravention, but nevertheless we will leave the building because it would be a great pity to demolish it," when planning authorities and others outside wanted to get rid of it, then local magistrates would have the power of over-riding all the planning authorities in the country. That would be most unfortunate, and I hope the point will not be pressed.