CLAUSE 2.—(Procedure of Commission.) (Hansard, 11 April 1945)

§ Mr. Turton
I beg to move, in page 2, line 14, leave out "two," and insert "three."
The wording of the Clause aft present is: At any meeting of the Commission two or such greater number as the Commission may determine shall be the quorum. I and my Friends think that two is too few for a quorum. This is an important Commission. I think the Chancellor has the present idea of two from the War Damage Commission where the wording is just that, but here we have a far more vital Commission for the interests of the community, going into such questions as where a town planning scheme is breaking down owing to a Government Department invading their rights, and quite clearly I think we want a larger number.

§ Mr. Peake
I find the words of my hon. Friend so persuasive that without more ado I will accept the Amendment.

§ Mr. Manningham-Buller
I beg to move, in page 2, line 24, leave out "to," and insert" (3) and."
The object of this Amendment is to take out of operation Sub-section (4) of Section 290 of the Local Government Act of 1933. I quote from the Section, but instead of the word "Department," we must read here the word "commission." It says: where a Department cause any such inquiries to be held, the costs incurred by them in relation to that inquiry (including such reasonable 1875 sum not exceeding five guineas a day as they may determine for the services of any officer engaged in the inquiry) shall be paid by such local authority or party to the inquiry as the Department may direct. … So the effect of the incorporation of that Section in this Bill will mean that when the Commission think fit to hold a public inquiry they must order someone who appears before that inquiry, whether it be the local authority or any other party, to pay the costs which the Commission themselves have incurred at that inquiry. That is a great deterrent, and it must be so to many people, but there may be many small people who might be prevented from lodging objections to a scheme. If a scheme is propounded and an objection is lodged the Commission may, if they think fit, cause a local inquiry to be held. That inquiry may last some time. There may be numbers of officials present on behalf of the Commission, and it seems to me quite wrong that when there is such an inquiry, because the Commission think there should be one, the parties who attend before it should be saddled with the costs of the investigation by the Commission. Sub-section (5) of the Local Government Act does give the Commission power to say that one party shall pay another party's costs, which may be very desirable in the case of frivolous objections, but to say that a party who is to be deprived of his interests by the Crown must pay the costs of the Commission seems to me and my hon. Friends quite wrong.

§ Commander Sir Archibald Southby (Epsom)
I do not want to add very much to what my hon. Friend has said, because I think he has put the case exceedingly well. I cannot believe that the Government would desire to inflict hardship upon someone who was trying to come before the Commission and I hope, therefore, that the Chancellor will find it possible to accept this Amendment.

§ Mr. Peake
As I understand my hon. Friend's Amendment, it would result in the omission from the Bill of any reference whatever to Sub-section (4) of Section 290 of the Local Government Act, 1933. That Sub-section makes provision as to payment of costs when a local inquiry is held. The effect of the Amendment, if any reference to Sub-section (4) was taken out of this Clause, would be that 1876 there would be no power resting with anybody to make any order with regard to costs.

§ Mr. Manningham-Buller
I have a copy of the Act here, and Sub-section (5) says: The department may make orders as to the costs of the parties at any such inquiry, and as to the parties by whom such costs shall be paid, and every such order may be made a rule of the High Court on the application of the party named in the order. Sub-section (4) deals only with the costs of the Commission, and says that those costs shall be paid, not may be paid, by the local authority or any other party to the inquiry.

§ Mr. Peake
I am obliged to my hon. Friend for drawing my attention to the contents of Sub-section (5). But the effect of Sub-section (4) is that the cost of the inquiry, quite apart from the costs of the parties to the inquiry—that is the distinction I want to draw—may be ordered to be paid—

Hon. Members
Shall be paid.

§ Mr. Peake
Well, then, shall be paid by such parties to the inquiry as the Department may direct. In this case it will not be a Department which is concerned, it will be the Commission; and the direction under Sub-section (4) would be given by the Commission and not by a Department concerned—which is the usual practice where an inquiry is held under the Local Government Act. I imagine that in the absence of any direction by the Commission costs will be payable for the cost of the inquiry under Sub-section (4). As I read the Sub-section, it depends upon a direction being given by the Department concerned, if it is under the Local Government Act, or by the Commission, which has authority under the proposal in the Bill. If I am wrong on this matter we will take steps to correct it on the Report stage, but it seems to me that it is within the discretion of the Commission to decide whether or not they make an order for payment of the costs of the inquiry under Sub-section (4) of Section 290 of the Local Government Act in cases where a local inquiry is held at the instance of the Commission. It seems to me not an unreasonable provision that the Commission should not only be able to order payment of party costs in this local inquiry, but should also be able to make an order as regards the costs of the 1877 person holding the inquiry. There is a limit in the Sub-section which is specified as: … not exceeding five guineas a day for the services of any officer engaged in the inquiry. … A case may arise where it is fair and reasonable that the cost should be made payable under this Sub-section. There is a possibility that objection may be taken to proposals made under Part II of the Bill, and there should be discretion within the Commission to make an order of this character. I do not say that they would always make an order; I do not believe they are bound to make an order; but I think it is a wise provision that this power should be in the hands of the Commission for use in such cases.

§ Major York
The Financial Secretary has stated a case for which I can see some justification, but is not the point in regard to any requisitioned land, or any land damaged by war work, that this Commission is in the nature of a court of summary jurisdiction, or a low form of law court—perhaps I had better say a junior form of court? Surely, the Government would not expect any applicant to that junior court to bear any part of the cost of the actual court itself. That seems to be a most curious suggestion. I dare say there may be some frivolous cases brought before the Commission—I cannot say—but even when frivolous cases are brought into a court of law the costs of the judge and the court officials are not, as a rule, paid by either side. I feel rather dissatisfied with my right hon. Friend's reply.

§ Mr. Geoffrey Hutchinson (Ilford)
I wanted to ask my right hon. Friend, before he concluded his explanation, whether it was contemplated that the commissioners would have power to direct that the costs of these inquiries in suitable cases should be paid by the Government Department concerned, or whether it is only contemplated that the costs will be paid by the parties.

§ Mr. Peake
May I make myself perfectly clear? It would be for the Commission to decide where the burden of costs is to fall. They will be just as able to make an order against the Government Department concerned in the claim, as they will be against any person whose property is affected. Is that quite clear?

§ Mr. Hutchinson
I have been looking at Sub-section (4) of the Local Government Act, and it provides that costs shall be paid by any local authority or person.

§ Sir J. Anderson
"Party", not person.

§ Mr. Hutchinson
If my right hon. Friend will look at the end of the Section he will see that it says: … any amount so certified and directed by the Department to be paid by any authority or person shall be recoverable from that authority or person. …

§ Captain Duncan (Kensington, North)
I hope my right hon. Friend will have another look at this matter between now and the next stage of this Bill. No doubt the Commission will have power, with the consent of the Treasury, to pay the expenses of the Commission. I can quite understand that it will be right that parties shall pay their own costs, which may be considerable. Plans and maps may have to be prepared and, possibly, counsel engaged. My right hon. Friend, although he is not a practising lawyer, will realise that counsel are expensive, and that in these cases there will be considerable costs. Frivolous appearances may be put in at public inquiries but I should have thought that this would have been sufficient to deal with that aspect of the matter. When it comes to the payment of expenses of the Commission I should have thought that the State would in all cases have carried their expenses, or the expenses of the person appointed to hold the public inquiry. This sort of case is not quite analogous with other cases under the Local Government Act.

§ Mr. Peake
Perhaps it may shorten the discussion if I say that we will, of course, have another look at this matter. This Amendment appeared on the Order Paper only this morning. Although the Bill had its Second Reading on 13th February, I realise that my hon. Friend the Member for Daventry (Mr. Manningham-Buller) has been spending much of the intervening time in Moscow and therefore brings a fresh mind to bear on these problems, which have been exercising myself and other Members of the Committee so closely. Of course, we will look into the question again. I think the exposition I have given to the Committee is correct, but if it is wrong we will deal with the matter on the Report stage.

§ Mr. Gallacher
In view of the undesirability of legislation by reference, would it not be well to consider including a Sub-section here dealing with the powers which the Commission has?

§ Mr. Manningham-Buller
I thought my right hon. Friend the Financial Secretary, in dealing with this Sub-section, set out the position with complete accuracy. The point I want to make, before asking leave to withdraw the Amendment, is that where you have a Commission with discretion as to whether they shall hold an inquiry, they will be stultifying their own decision to hold an inquiry if, having held it, they then say that a particular person will have to pay the whole cost of the Commission. I think that when the Commission holds an inquiry the State should carry the burden. In view of the assurance that this matter will be looked into before the Report stage, I beg to ask leave to withdraw the Amendment.

§ The Solicitor-General (Major Sir David Maxwell Fyfe)
I beg to move, in page 2, line 3o, at the end, insert: Provided that no local authority shall be ordered to pay costs under Sub-section (4) of that Section in the case of any inquiry unless it is a party to that inquiry. As the Committee is now aware, after the consideration of the last Amendment, the provisions of Sub-section (4) of Section 29 of the Local Government Act deals with cases where the inquiry is concerned with the functions of a local authority. In these circumstances the local authority may, under that Subsection, be made to bear the costs even where it is not a party. In the present circumstances and in the Bill that is before the Committee we consider that it would not be right to make a local authority liable to bear the costs unless it is a party and before the inquiry in that way. This provision is a relief provision, and I hope the Committee will accept it.

§ Mr. Turton
In view of the undertaking given by the Financial Secretary that this matter will be reconsidered and the provision probably redrafted before the Report stage, would it not be better not to move this Amendment now, but to wait until the Report stage? I am entirely in agreement with the hon. Member for West Fife (Mr. Gallacher) that it 1880 would be far better if we did not have legislation by reference and if the Chancellor would bring in an appropriate Sub-section into this Clause. It is a great mistake to deal with this matter partially. The speeches on the last Amendment have shown that the position is extremely unsatisfactory, and no doubt there will be some Amendment on the Report Stage.

§ Major York
I would like to reinforce what has been said by my hon. Friend the Member for Thirsk and Malton (Mr. Turton). The position now is that while the Government are not quite sure on the point raised in the Amendment of my hon. Friend the Member for Daventry (Mr. Manningham-Buller), they nevertheless have to amend their own Sub-section in order to bring into the Local Government Act a piece of legislation especially designed for this Bill. Surely, in those circumstances it is obvious that what is required is a new Sub-section setting out those Sections of the Local Government Act which are required for this Bill and leaving out those parts which are not required. I ask my right hon. Friend to reconsider this matter.

§ Mr. Edmund Harvey (Combined English Universities)
I warmly support what has been said by the hon. Member for Thirsk and Malton (Mr. Turton) and the hon. and gallant Member for Ripon (Major York). Surely it is not too much to ask the Government to consider inserting into this Bill the provision that has been outlined and not to make legislation by reference. Wherever legislation by reference can be avoided, surely it is desirable to avoid it, so that when the Bill becomes an Act any citizen who wants to deal with the question and understand it can get the information from the Act without having to refer to innumerable other Acts in order to understand what is meant by this particular Measure. It would be very greatly to the convenience of everyone concerned if the whole of these provisions could be made intelligible in the words of the Bill without there being any need to refer to previous legislation.

§ Lieut.-Commander Joynson-Hicks (Chichester)
I feel that this point is one on which we may very easily go astray. I want to add my appeal to the right hon. Gentleman to reconsider the Amendment at this stage. We are only on 1881 Clause 2 of a 40-page Bill and already it is getting into such a mess that it is becoming unintelligible to the ordinary citizen. We are referring to Amendments to Sub-sections of another Act in which of itself reference is made to "department" when we mean "commission"; and altogether, if we proceed with this Amendment at the present stage, Sub-section (2) of this Clause will become so involved and complicated by reference that it will be a very serious setback to any member of the public who is endeavouring to find out really what his rights are. I appeal to the right hon. Gentleman to have the provision redrafted.

§ Mr. McKinlay (Dumbartonshire)
I do not see any of the Scottish Law Officers present. I know that the Solicitor-General is a Scotsman, but I am the last person in the world to suggest that he should blackleg on his colleagues from North of the Border. I want to ask whether there is any equivalent Section in the Local Government (Scotland) Act covering this point. I would rather wait to raise that question when the Scottish Law Officers put in an appearance; I know they are overburdened with work, but this is a Bill which applies to Scotland, and some explanations ought to be given about the application to Scotland. I think it would be advisable for the Scottish Law Officers to be here during the discussion of the Bill.

§ Mr. Douglas (Battersea, North)
May I point out to my hon. Friend that Clause 53 deals with the application to Scotland and contains references to the appropriate, Scottish Act?

§ Mr. McKinlay
That is all very well, but I Want the Scottish Law Officers to explain the appropriate Sections.

§ The Deputy-Chairman
They would be quite out of Order if they did it on the Clause now before the Committee.

§ Mr. McKinlay
On a point of Order, Mr. Williams. Is it suggested that I am not entitled at this stage to ask, with regard to something which applies to Scotland, what is the equivalent Section in the Local Government (Scotland) Act? When this matter has been disposed of, and we eventually reach the Clause dealing with the application to Scotland, we may discover that it is too late to deal with it.

§ The Deputy-Chairman
In all probability that matter will come up on Clause 53 and it had better be dealt with then.

§ Sir J. Anderson
I was about to rise a little earlier to call attention to the fact that the Clause dealing with the application to Scotland is really the place where one would expect to find provisions relating to Scotland. Perhaps I might call attention to the fact that in page 35 of the Bill, at the bottom of the page, the hon. Member for Dumbartonshire (Mr. McKinlay) will find the answer to his questions. I am sure I am right in saying that a full opportunity will arise on that Clause to deal with any point affecting local government in Scotland. I will take it upon myself to see that the attention of the Scottish Law Officers is directed to the fact that a point of this kind has already been raised.
May I say a word on the substance of the matter with which we have been dealing? I have very great sympathy with the view that legislation by reference is often apt to create confusion and that the method of direct statement has much to commend it. It is perhaps the case that in regard to procedural matters, of which this is an example, reference to other legislation is not so clearly open to objection as in regard to substantive law. I am bound to say that this provision has been drafted by highly competent people and hon. Members will observe that words have been inserted in Clause 2, subsection (4), to indicate the kind of matters that this particular provision of the Local Government Act is concerned with.
My right hon. Friend the Financial Secretary has already given an assurance that we will look into the whole matter again between now and the Report stage. I confirm that assurance, but I want to go a little further and say that the consideration which we will give to the matter will extend to the question of form as well as the question of substance. As regards the action we should take at this stage, we are passing for the time being the provisions of Clause 2, Subsection (4). The further Amendment which we have just been discussing is designed to correct a flaw in those provisions, and I think it would be a little slovenly not to correct that flaw at this stage, without prejudice to what we do on the Report stage. I hope hon. Members will agree that this further Amendment, which is in the nature of a relieving 1883 Amendment and ought to have been in the Clause as originally drafted, had better be made now, and then we will look at the whole thing on the Report stage.

§ Colonel Sir George Courthope (Rye)
I beg to move, in page 2, line 3o, at end, add: (5) Subject to the provisions of this section the Commission shall have power to regulate their own procedure. It seems to be desirable that a Commission of this kind should have a considerable measure of independence in arranging its own proceedings. A provision of the sort contained in this Amendment is not uncommon and I hope the Amendment will be accepted.

§ The Solicitor-General
I entirely sympathise with the feelings which animate my right hon. and gallant Friend in putting forward this Amendment, but as a matter of drafting and legislative practice I assure him that it is unnecessary.
Without any words, a body constituted as this body has been constituted can regulate its own procedure and the effect of the Amendment would be to detract from the general principle to which I, like my right hon. Friend, attach importance and possibly to throw doubt in the case of other similar bodies. Some who have interested themselves in the matter may have had in mind the special provisions in the First Schedule to the War Damage Act, but they are there because that Schedule not only deals with the procedure of the War Damage Commission but with its powers of delegation and, when you give powers of delegation, you have to deal with them specially. I would ask my right hon. Friend to accept it from me that these words are unnecessary, as the Commission will have complete power to regulate its procedure, and that their insertion would merely have the effect of throwing doubt on a principle which we all think is beneficent at present.

§ Viscount Hinchingbrooke
I beg to move, in page 2, line 30, at end, add: (5) All proceedings before the Commission with respect to any matter referred to them under the subsequent provisions of this Act shall be held in public unless, in the case of any such proceedings, considerations of national security render it, in the opinion of 1884 the Commission, advisable that the proceedings should be held in camera. The object of this Amendment is to ensure that the proceedings of the Commission shall be held in public except when considerations of national security warrant their being held in secret. The acts of the Commission are going to affect thousands of people and, the greater the secrecy of discussion, the greater the public anxiety will be. The swifter the news of the Commission's proceedings percolates to the public the better it is. We ought to remember that these matters of acquisition of land do not affect the interested parties only. There are all sorts of individuals and bodies with transient or recurring interest in the land and its future and it is quite proper that they should be advised at the initial stage what the Commission is about. We really have a precedent in the Bill already for the Amendment. Clause 8 provides that the Minister shall proceed by public notice when contemplating action with regard to the acquisition of land.

§ Mr. Colegate
I hope the Government will accept the Amendment. It has a very important bearing on a subject which we mentioned before, namely, that everyone should have confidence in the Commission. There are a very large number of interests other than those directly concerned with the ownership of the land or factories concerned. There are those connected with commons and open spaces for example. It is important, especially in the earlier stages, that everyone concerned directly or indirectly should appreciate the principles on which the Commission is proceeding. I think it will be found that, if the proceedings are held in public, the work to be done by the Commission, which is very heavy, will eventually be got through much more quickly because those who have points to raise, and their professional advisers, will learn very quickly from a few public hearings the principles and methods by which the Commission is proceeding. In view of the fact that it is urgent that the Commission should get through its work as quickly as possible, because whole areas and large industries are affected, they should hold their meetings wherever possible in public in order that a general code of law, as it were, for dealing with these matters may be formulated, and then in the later stages the work will go through very much more quickly and easily.

§ The Solicitor-General
Again I have very great sympathy wtih the feelings that animate my hon. Friends but we want to look at the matter a little more closely. This is not exactly, and deliberately not exactly, the same as proceedings in a court of law. There is power for a public local inquiry to be held when the Commission thinks it appropriate, but I can envisage a large number of cases where the matter could be dealt with even by written representations and replies, and probably it will not be necessary to go any further than that, and of other cases where an informal discussion of five minutes with a representative of the Commission would clear matters up. We had that procedure in mind when considering analogous problems under the Town and Country Planning Act. It is valuable to have a flexible procedure so long as the Commission is master in its own house and can use the procedure which it thinks right. You might have a case of a factory being extended and proposals to buy the owner out. He might not want to have his private affairs discussed in public and it might be harmful to his interests. That occurs in many cases where there is nothing sinister about it. Proceedings in Income Tax matters before the General and Special Commissioners are kept private because they deal with private matters. If a matter is important, the Commissioners can bring it to the light of day but, where they do not think it necessary, I think that modicum of privacy ought to be given to people who desire it. So long as we have the undoubted, unquestioned right of the Commission to bring anything into public if it so desires, we should not prevent the greater flexibility which the present procedure can give.

§ Mr. Colegate
If the Commission desired to hear a case in public they could do so?

§ The Solicitor-General
Certainly.

§ Mr. Manningham-Buller
The Bill provides for a local inquiry and I should be quite content if the Government accepted an Amendment that, where there was a local inquiry, it should be held in public, but it is not provided in the Bill. There is force in what my hon. and learned Friend has said about the necessity of acting in private in the interests of private individuals, but there is also some force in 1886 holding a local inquiry in public so that members of the public, and Members of the House, may be fully informed of the proposals which Government Departments are bringing forward for the acquisition of land.

§ The Solicitor-General
It is extremely rare in my experience to find a local inquiry held in private. It is almost always, as far as I can remember, held in public, although my hon. Friend may have some example which has escaped me. My point is that that should be left to the Commission. If we get a good Commission and let them manage their own procedure, we can with confidence leave it to them that public rights will be regarded.