§ Order for Second Reading read.
§ 3.22 p.m.
§ The Solicitor-General (Sir John Hobson)
I beg to move, That the Bill be now read a Second time.
The need for this Bill arises from Northern Ireland's special position as an integral part of the United Kingdom which yet has its own separate Parliament and Government. It may be helpful if I first explain to the House the constitutional arrangements for Northern Ireland in a few sentences. The Bill is of a very miscellaneous character and the constitutional background provides the one common thread which runs through the whole of the Bill. It is the real reason for the varied nature of the numerous Clauses.
Written and rigid constitutions are alien to our British practice and experience. We dislike a precise and unalterable framework which has a constricting effect upon parliamentary efforts and which stands in the way of development to meet changing needs and circumstances. We in Westminster prefer a more flexible and pragmatic approach, allowing our parliamentary institutions and our system of government to grow naturally and, relying on convention and precedent as well as on the good sense of all concerned, to keep the whole system working smoothly.
This approach could not, however, be adopted when Northern Ireland's system of government was established, forty years ago, for it was then necessary to devise a system whereby two Parliaments and two Governments could exercise joint responsibilities over the same territory. The only way to avoid confusion in such circumstances was, therefore, to define clearly and in some detail the division of the powers and functions between the two Parliaments and Governments.
We thus created in a single instance within the United Kingdom something analogous to the federal system of other countries where there is a State legislature within the united whole, although 822 it is an analogy only, because in this instance the Parliament of the United Kingdom retains complete power to legislate for all matters within Northern Ireland while the Northern Ireland Parliament has only restricted powers for dealing with the matters which are within its own competence.
The scheme which was devised was laid down by the Government of Ireland Act, 1920. The method adopted by that Act was to confer on the Northern Ireland Parliament a general responsibility to legislate for order and good government in Northern Ireland, that is, broadly speaking, a responsibility covering all domestic matters within Northern Ireland, and to remove from the competence of the Northern Ireland Parliament responsibility for all other matters, both those which were of a more wide nature than affected Northern Ireland only and for matters which were general to the United Kingdom, such as foreign policy, defence, customs and excise, revenues and such other matters.
As I have said, however, while the Parliament of Northern Ireland is given power to legislate within its particular province the supreme authority of the United Kingdom Parliament was retained for all matters and all purposes affecting Northern Ireland, although, in practice, it has not been usual for this Parliament at Westminster to legislate upon any matters which are within the jurisdiction of the Parliament at Stormont.
This scheme has two important consequences for us in this Parliament. First, the original forms and divisions between the two Parliaments cannot remain static for ever. It is only this Parliament at Westminster which can alter the boundaries between the two and in any way enlarge the competence of the Parliament at Stormont. Secondly, much of the law which is passed at Westminster is directly applicable in Northern Ireland and is made by this Parliament. It is, therefore, the duty of this Parliament to see that such law is kept up to date and is in accordance with the needs not only of the whole of the United Kingdom, but of Northern Ireland in particular.
The first of these consequences comes from the fact that the powers of the 823 Northern Ireland Parliament depend on a mould which was cast at a particular point of time, and which was never expected to remain suitable for ever. The Northern Ireland constitution and powers of the Northern Ireland Parliament must grow and be adjusted just as much as those of the United Kingdom need to be. Yet, for the reasons I have explained, the model and mould of the Northern Ireland Parliament had to be set in a rigid pattern which, if it were never altered, would completely stifle all development.
In practice, a regular system of alteration and adjustment has been required ever since 1920. Responsibility for all those alterations for allowing Northern Ireland's constitution to develop rests squarely upon this Parliament. If we shirked the responsibility we would be discriminating against the people of Northern Ireland by preventing them from enjoying the same legislative advances which we ourselves decree for the rest of Great Britain.
This, in practice, we have not done. We have passed a series of Acts devoted largely to improving the situation, called the Northern Ireland (Miscellaneous Provisions) Acts. One was passed in 1928, another in 1932 and a third in 1945. Northern Ireland Acts were also passed in 1947 and 1955. In addition, there have been a host of detailed ad hoc adjustments included in United Kingdom statutes dealing with particular subjects so as to adjust them for the benefit of citizens of Northern Ireland.
The second consequence of the constitutional arrangements I have described is that a large part of the law applicable to Northern Ireland is contained in statutes of the United Kingdom Parliament and only this Parliament can, therefore, make changes in them. In many cases the law in question extends to the United Kingdom as a whole and not merely to Northern Ireland. There are, however, some branches of the law applying only to the law in Northern Ireland which remain our responsibility, notably the law relating to the Northern Ireland Supreme Court, a subject reserved for the United Kingdom Parliament and not within the competence of the Parliament at Stormont. Here again it is for us to keep this law 824 up to date. The principle of this Bill is simply that of discharging by this Parliament the responsibilities towards Northern Ireland which I have described. I hope that the whole House will welcome the Bill as a step forward in giving to the Parliament of Northern Ireland a substantial measure of additional freedom in the administration of its own affairs.
The Bill falls into three parts. The first twelve Clauses relate to the Northern Ireland Supreme Court, which, as I have said, remains our responsibility and will continue to remain our responsibility after the passage of the Bill. In 1949, the Lord Chancellor of the day set up a Committee to examine the enactments relating to the practice and procedure of the Supreme Court of Northern Ireland. Much of the law relating to the administration of justice in Northern Ireland was fairly ancient and the Supreme Court itself is still governed by an Act of 1877. For certain purposes, in particular for determining whether an appeal can be taken to the House of Lords, it is still necessary to refer back to the Act of Union of 1800.
The Committee which was set up was under the chairmanship of Mr. Justice Sheil and it reported in 1957. It made a number of recommendations designed to simplify and to bring up-to-date the law and procedure of the Supreme Court. Clauses 1 to 12 of the Bill give effect to a number of the Committee's main recommendations as well as making other reforms in this branch of the law. They will bring about considerable simplification and improvement.
I do not consider it necessary at this stage to go into the detail of the numerous provisions that are contained in the first twelve Clauses of the Bill. They are very detailed and, no doubt, can be examined with care in Committee. I might, however, mention that Clauses 1 and 2 simplify and bring up-to-date the law relating to appeals to the House of Lords and to the Northern Ireland Court of Appeal, respectively, and are based upon the corresponding provisions of the English law.
Clauses 7 and 8 will establish for the first time in Northern Ireland a new rule-making committee in place of the present authority. That Committee will 825 have powers similar to those of the Rules of Count Committee in England, which, in the view of all who have had experience of it, has worked very well. It is intended to provide this Committee with similar powers for the purpose of the practice and procedure of the Supreme Count of Northern Ireland.
Clause 11 reduces the number of jurors required in civil proceedings—not criminal proceedings—from twelve to seven. In England, the absolute right to a jury in a civil action is considerably restricted, but there are no such restrictions in Northern Ireland; they are not apparently desired. The result is that jury trials in civil actions are common in Northern Ireland. Jury service, however, imposes a heavy burden on those qualified to serve, particularly on the citizens of Belfast. Clause 11, therefore, is designed to relieve that burden while preserving the existing rights to a jury trial. Juries of twelve will still remain for all criminal proceedings.
The second section of the Bill consists of Clauses 13 to 21, which contain various Amendments of Northern Ireland's constitution. The most important of these Clauses are Clauses 13 to 15, which relax certain general restrictions on the competence of the Northern Ireland Parliament which are contained at present in Section 5 of the Government of Ireland Act, 1920.
We in this fully sovereign Parliament must find it hard to imagine the situation of the Northern Ireland Government and Parliament, who are not free to pass or to propose any legislation that they consider desirable in the sphere which is their particular responsibility. They have at all times to pay regard to the general and far-reaching restrictions which are imposed upon them by the 1920 Act. As a result, it would be no exaggeration to say that they find themselves in the dilemma of having placed upon them responsibilities which they are sometimes unable to discharge in a fully satisfactory manner. I am not, of course, referring to the main provisions in Section 5 of the 1920 Act, which prohibits discriminatory legislation on religious grounds or against any religion. Those parts of Section 5 of the 1920 Act, which are of great importance, will be quite untouched. The Bill does nothing whatever to affect those positions.
826 Section 5 of the 1920 Act also contains, however, two secondary provisions of a different nature and it is with these secondary provisions that Clauses 13 to 15 are concerned. The effect of the second part of Section 5, which has to be read with similar provisions in Article 16 of the Schedule to the Irish Free State (Agreement) Act, 1922, is that the Northern Ireland Parliament may authorise the acquisition on payment of compensation of property of religious and educational bodies only for certain specified purposes. These are for roads, railways, lighting, water or drainage work and other works of public utility. Such property of religious and educational bodies may not be acquired for any other public purpose, however important or whatever its nature.
The intention in 1920 was to strike a balance between the protection of those religious and educational bodies, on the one hand, and the recognition of the needs of society, on the other. One does not need to know much history to remember that in 1920, town planning had hardly been thought of and the practice of it was almost non-existent. It was not, therefore, included, nor were any provisions included in Section 5 which enabled the property of religious and educational bodies to be taken for any normal town planning purposes.
Clause 13 of the Bill has the intention of slightly widening the purposes for which such property may be taken. Since 1920, our conception of the needs of society has grown and it is now fairly generally accepted that housing, slum clearance and the development and redevelopment of areas are important social objects. It is also accepted that these objects could not be satisfactorily achieved without the powers of compulsory purchase. The law in both Great Britain and Northern Ireland provides accordingly.
In Northern Ireland, however, those powers cannot be used at present to acquire property of religious and educational bodies because of the provisions which I have described. As a result, in many instances progress has been impeded, because all types of property of any religious or educational body may obstruct a comprehensive scheme. Property not only in churches and schools, but property which may be of 827 an investment nature, a sporting nature or any other nature which is vested in any religious or educational body in Northern Ireland, is now completely protected from compulsory acquisition even for slum clearance or housing purposes. This has led to difficulties. As one may imagine, in heavily built-up areas there are considerable blocks of such property which may make a sensible and comprehensive scheme of development almost impossible of attainment.
Subsection 1 (a) of Clause 13 of the Bill therefore permits these powers of compulsory acquisition to be applied to some of the property of the religious and educational bodies. That is to say, these powers can be applied to their investment property and to any other property except buildings which are occupied and used exclusively by such bodies for religious or educational purposes. Such buildings—that is, churches and schools—will remain completely outside the power of the Northern Ireland Parliament to legislate for compulsory purchase. If, however, the Clause is passed in its present form, the Northern Ireland Parliament will be able to pass legislation that will enable other properties of religious and educational bodies to be taken by compulsory purchase for slum clearance, housing and general development schemes.
I should make it clear that this provision implies no criticism of the attitude to schemes of social betterment of the religious and educational bodies in Northern Ireland. It is, however, the common experience that, while there may be general support for the principle of slum clearance and redevelopment, the practical application in individual instances is apt to lead to genuine differences of opinion between those who own the property and those who seek to acquire it compulsorily.
§ The Solicitor-General
Of course. Consequently, there must be some machinery for carrying through schemes of slum clearance and the like which includes a power for the responsible authorities to decide what shall be done.
This provision is not aimed at any one particular body. It applies equally 828 to the property of all the religious denominations and educational institutions in Northern Ireland, and there is no religious discrimination in it of any sort. Where the property of a religious body may be must be largely a matter of chance, and whether one religious body or another happens to own property within an area which is due for slum clearance or development must also be purely a matter of chance.
There are nearly 200 separate denominations within Northern Ireland and it is because the property of all these denominations, when added together, is of considerable extent that there exists a very real problem which this paragraph is intended to relieve.
The need to maintain reasonable protection for the interests of the Churches has been recognised by the exclusion from this new provision of buildings used for the essential purposes of the church or educational institution concerned. Unlike the rest of the United Kingdom, such buildings may be free from compulsory acquisition for slum clearance and some similar purposes in Northern Ireland. They are not so free within the rest of the United Kingdom at present. Clause 13 (1, b)—
§ Mr. Eric Fletcher (Islington, East)
Before the learned Solicitor-General leaves paragraph (a), will he confirm that the exemption contained in the Bill applies to all buildings used for purposes ancillary to a religious denomination or educational institution?
§ The Solicitor-General
It includes all buildings which are in the curtilage of a building used exclusively for the religious or educational purposes of the body. An ancillary building in the shape of a sports pavilion not within the curtilage would not be exempted from compulsory acquisition, unless it could be shown that it was used exclusively for the purposes of the religious or educational body. I do not think that I can go so far as to say that all ancillary buildings will be exempted, but all ancillary buildings Which are within the curtilage are certainly included in the exemption from compulsory purchase.
Subsection (1, b) confirms that the Northern Ireland Parliament has powers to pass laws controlling the use of land, 829 including buildings, whether it belongs to a religious or educational body or to any other body. The extent of its power to do so at present is doubtful because of the restrictions contained in Section 5 of the 1920 Act. The object of Clause 13 (1, b) is to ensure that planning legislation, and other similar measures, can be applied in the same way to all property, irrespective of its ownership.
§ Mr. R. J. Mellish (Bermondsey)
Does that concern property which is being used now, or will it concern only property of tomorrow? In other words, will the Parliament of Northern Ireland be given power to decide how land of this character is to be used at this moment? Will the Northern Ireland Parliament have the right under the Bill to say, in respect of a small piece of land on which there is a church hall, "This shall not be a church hall. We decree that it shall be used for other purposes"?
§ The Solicitor-General
I think that it would be within the competence of the Northern Ireland Parliament to do so, but the probability of its passing any such legislation is very remote indeed. As I understand, it is the intention to make the planning provisions of Northern Ireland similar to those in this country. The difficulty at the moment is that any restriction upon a change of user of land might be held to be incompetent to the Parliament of Northern Ireland. It is to get out of that difficulty that this provision is included in the Bill.
§ Mr. Mellish rose—
§ The Solicitor-General
If the hon. Member will wait a few minutes I will give him a few more explanations. He will then be able to say whether he is satisfied or not.
Clause 14 of the Bill repeals the third part of Section 5 of the 1920 Act, which prohibits the Northern Ireland Parliament from legislatingso as either directly or indirectly to … take any property without compensation".This provision was intended to prevent expropriation. The Northern Ireland Parliament has no wish to expropriate, but the words I have quoted from the existing Section 5 go very much wider than appears at first sight. A number 830 of legal decisions, including two very recent decisions in the House of Lords, have made this clear and have shown that the precise extent of this prohibition is difficult to determine.
Property in this context does not merely mean physical property or physical buildings. It includes interests in property, the right to use property, and such things as the goodwill of a business. Taking property in this context does not mean simply a complete deprivation but may also include any diminution of a right to use property. If, therefore, the phrase "take any property", Which is incompetent for the Parliament of Northern Ireland, is construed in this very wide sense, a great deal of our modern social legislation dealing with property and its user under the planning Acts would be incompetent to the Parliament of Northern Ireland.
For instance, there are provisions in the British planning code and public health law which restrict the way in which an owner may use his property, but provide no compensation, there being in many cases no justification for compensating an owner who is merely required to refrain from a use of his property which society rightly considers undesirable.
The Northern Ireland Parliament, however, has to provide compensation every time it authorises the taking of property. In this wide sense, therefore, it may have to provide compensation for imposing a restriction on changing the user of property. In practice, this has meant that it has been precluded from passing legislation on lines which we in this Parliament have for many years considered as necessary, ordinary, and desirable. Clause 14 frees the Northern Ireland Parliament from this constraint.
I think that the point that the hon. Member for Bermondsey (Mr. Mellish) desired me to deal with was that the removal of this prohibition might lead to confiscatory legislation or interference by the Government of Northern Ireland with the way in which an ordinary owner of property uses his property. The difficulty is that it would be almost impossible to draft a precise and workable provision setting out what are the circumstances in which the Parliament of Northern Ireland may or may not interfere with the user of property. 831 There is no reason to think that the Northern Ireland Parliament is any more likely to pass what may be called confiscatory legislation than this Parliament or is more likely to pass legislation which will give the Government or any other authority the right to dictate to individuals how they should use property different from the way in which it is at present being used.
§ Mr. Mellish
I am informed that the phrase "the use of land", contained in Clause 13 (1, b), is rather uncommon in town and country planning legislation. For that reason, doubts have arisen. I accept the Solicitor-General's statement that there is no suggestion that the Stormont or any other Parliament would use these powers unnecessarily or unfairly. No one suggests that. However, could we not provide a very good safeguard by defining exactly what we mean and say "the development of land" instead of "the use of land", because so much argument can turn on the phrase "the use of land"? This may appear to be only a Committee point, but to some of us it is very important.
§ The Solicitor-General
I am sure that there will be opportunities to discuss this in Committee, but I commend this thought to the hon. Gentleman. Once we start dividing out the difference between one restriction on the competence of Parliament to deal with the use of land and another we shall find ourselves in even greater difficulties than we are at present. The narrow distinctions that would be necessary to see exactly how far planning legislation could be passed, and exactly and precisely what interests in land and what interests in land of third parties were affected, or could be dealt with by the Northern Ireland Parliament, would really place that Parliament in almost greater difficulties.
I would further remind the hon. Gentleman that we at Westminster are, of course, perfectly free to pass legislation of this nature, and it is only for that purpose that freedom is being transferred to the Parliament of Northern Ireland. The Government will be very willing, in Committee, to consider any suggestions or proposals that may be put forward, because we recognise that 832 this is a difficult question, and one that requires care and thought, although the Government's present view is that it is probably better to leave it fairly wide, and to entrust to the Parliament of Northern Ireland the discretion responsibly to pass such legislation under this head as we have power to pass in this House at Westminster.
The rest of this Bill contains a number of miscellaneous points—
§ Mr. Fletcher
Before the Solicitor-General passes from that matter, in view of the precise ambit of the powers that will be given by Clause 13 to the Parliament of Northern Ireland, and as there may be some doubt as to how far they extend, will the hon. and learned Gentleman please confirm that in the event of any dispute the House of Lords will still be able to determine whether or not any law of the Parliament of Northern Ireland is ultra vires?
§ The Solicitor-General
That is certainly so. The right of appeal in all circumstances where the validity of an Act of the Northern Ireland Parliament is in question is quite untouched by this Bill. The right of appeal to the House of Lords in such circumstances will now only be subject to similar provisions to the English laws about appeals to the House of Lords. Such appeals are now to be controlled by Clause 1 of the Bill, which merely brings the law in relation to appeals in Northern Ireland into line with the general provisions of the law of the rest of the United Kingdom.
As I was saying, the remaining Clauses are, perhaps, minor, but they are useful. In many respect, they form part of the process I have described of amending and bringing up to date the Northern Ireland constitution and the law in Northern Ireland by extending the powers of the Northern Ireland Parliament to manage the affairs of Northern Ireland.
I might mention Clause 15. This will remove doubts about the Northern Ireland Parliament's power to pass legislation providing for security of tenure or enlarging estates or interests in land.
Clause 17 will enable that Parliament to legislate so as to prevent cruelty to horses exported from Northern Ireland. 833 There is no suggestion that there is any cruelty in the export of horses from Northern Ireland; indeed, I believe that the present export of horses from Northern Ireland is not very extensive—
§ The Solicitor-General
—but there may well, in future, be a diversion, or an increase in the trade. It is, I think, obviously right that the Northern Ireland Parliament should have power to deal with that trade and control it, and to take such measures at the port of embarkation—where it must be controlled—as are necessary to see that there is no cruelty.
Clause 18 will enlarge the power of the Northern Ireland Parliament to legislate for the purpose of fostering the export of agricultural produce from Northern Ireland. Clause 19 removes doubt about that Parliament's power to base charges for services or facilities on the quantity of a product. They can now deal with charges on the basis of the acreage of a farm, or the number of people employed, or on a variety of other bases but, because of one sentence in the drafting of the 1920 Act, the Northern Ireland Parliament cannot raise charges for services according to the quantity of the product for which those services are required. This is a useful Amendment, and deals with something that should obviously be within the power of the Northern Ireland Parliament.
Clause 24 will assist in the enforcement of the law and, in particular, of the law of Great Britain. It deals with the mutual backing of warrants, and provides for an easier system within Northern Ireland which will slightly increase the number of persons who may be authorised to back warrants for execution in different parts of the United Kingdom.
To sum up, the Bill recognises the rather special responsibility of the United Kingdom Parliament towards Northern Ireland which results from the constitutional arrangements I have described. It will improve the administration of justice, it will further social progress in Northern Ireland, and will, in a number of other small but useful ways, be of assistance to the life and 834 people of that very important part of the United Kingdom. For all those reasons, I ask the House to give the Bill a Second Reading.
§ 3.56 p.m.
§ Sir Frank Soskice (Newport)
The Solicitor-General has had a far from easy task in explaining the details of this Bill. I think that anybody would start consideration of this Measure by agreeing at once that its purpose is sensible and useful. That purpose is to devolve a considerable extension of freedom upon the Northern Ireland Parliament. The Government of Ireland Act, 1920, was passed forty-two years ago and, as the Solicitor-General has said, it has since been necessary from time to time to enlarge the freedom of action of the Northern Ireland Parliament. The Bill is really a further step in that direction.
In those circumstances, and speaking for myself, I would gladly welcome the principle of the Bill, but it will, naturally, be expected that we should look rather carefully into its detail, particularly as that detail trenches upon matters about which people have very strong feelings; some religious feelings, and some that are in no sense connected with any religious denomination at all.
Starting from that standpoint, perhaps I may ask the House to consider some aspects of Clauses about which anxieties have been expressed in Northern Ireland. We are in Westminster, but the House will probably agree that in examining the Bill's provisions we should, in a sense, try to look at the matter, to some extent at least, through the eyes of those who live in Northern Ireland. Looking at the Bill from that point of view, I have heard expressions of considerable anxiety about the wording of the first two Clauses.
The first two Clauses deal with the question of appeals both to the House of Lords in this country and to the Northern Ireland Court of Appeal. The right of appeal to the House of Lords is greatly valued in Northern Ireland, and is there regarded as a very considerable safeguard to the citizen. That being so, what is the case for the provision—to take an example—in subsection (8) of Clause 1, which frees the Northern Ireland Parliament by making it competent to that Parliament to enact 835 that, in regard to particular causes, the decision of the lower court shall be final, so that there shall, in effect, be no further right of appeal, even with the leave of the House of Lords? The subsection enables the Northern Ireland Parliament to say that in certain categories of human action the decision of the court below will be the final decision, and will not be subject to challenge.
There may be a perfectly good case for that, but I think that those who have expressed those anxieties in Northern Ireland—anxieties centring upon the fact that this provision enables the Parliament of Northern Ireland to curtail to an almost immeasurable extent, if I rightly read the provision, the right of appeal to the House of Lords—should know what the case for it is. For what sort of purpose is it likely to be used? Is there, in fact, any contemplated purpose? What are the motives that have led to that particular provision? Prima facie it seems to trench on the right under the present system of going to the House of Lords, subject always to obtaining the leave either of the Court of Appeal or of the House of Lords in the event of the Court of Appeal refusing that leave.
I am not trying to be obstructive, nor are those in Northern Ireland who are anxious about this matter. We simply want to know the case for this provision. It was said in another place by the Lord Chancellor, and, by implication, the Solicitor-General repeated it today, that there must be some change in the existing provisions with regard to the right of appeal to the House of Lords. The Solicitor General intimated that the existing provisions are archaic and involved, in a number of cases, the examination of pre-1801 legislation, to which no sensible person would wish to cling. While wishing to co-operate in bringing the procedure up to date I must ask the Solicitor General why Clause 1 (8) is necessary. I hope that he will set out the case for it, because, no doubt, there must be an adequate case.
I make almost exactly the same observations concerning Clause 2 (3) which, if I read it right, does almost exactly the same with regard to appeal to the Northern Irish Court of Appeal as does the previous provision with regard to the 836 right of appeal to the House of Lords. There again, the Northern Ireland Parliament is given the power to restrict to an almost indefinite extent by the appropriate legislative instrument the right of appeal to the Northern Irish Court of Appeal. This provision has occasioned anxiety for exactly the same sort of reason.
It is asked by those in Northern Ireland who are concerned with these matters, "Why should our right of appeal be restricted?" There may be a good case for the restriction, but can the Solicitor-General say just what is the kind of situation in which it is envisaged that the Northern Ireland Parliament will wish to restrict the right of appeal to the Northern Ireland Court of Appeal? I do not wish to labour this matter, but I hope that the Solicitor General will deal with it.
Having voiced those anxieties, I turn to Clause 7, which has also given rise to some concern, notably subsection (2). This enables the new Rules Committee, to be set up, in effect to overrule the existing statutory provisions in the exercise of their rule-making power. I am aware that there is—I believe in Section 99 of the Supreme Court of Judicature Act, 1925—a similar provision in our legislative system. It is, no doubt, useful and, on appropriate occasions, is exercised in a very beneficial way. But, in the context of the Northern Ireland provisions, it has given rise to some anxiety and I ask, even at this stage, whether there could not be introduced in Clause 7 (2) some safeguard to see that the power is not unduly exercised. Perhaps this is more a Standing Committee matter, but considerable anxieties have been expressed about it.
I turn to what undoubtedly may be said to be the controversial focus of the Bill, Clause 13. I do not believe that I would be serving any useful purpose by reopening past controversies, but the difficulties could certainly have been avoided had the Government taken the precaution of consulting the representatives and interests of the various religious and educational organisations which will be directly affected by Clause 13. If hon. Members will read the proceedings of another place they will see that apparently since the Bill was first presented there consultations have taken 837 place between the Lord Chancellor and the representatives of the various religious denominations concerned and that a measure of agreement has, I understand, been reached.
It is apparent from some questions which have already been asked in the House that it may be that the anxieties to which Clause 13 gave rise have not been altogether allayed. If so—and I do not seek to reawaken them now—we might wish to give the Clause some further consideration. Everyone would agree that for the reasons clearly stated by the Solicitor-General it is a necessary clause, providing it incorporates the necessary safeguards. I shall say no more about this now, except to express regret that the Government should have, as it were, faced those concerned with the text of the Bill without any sort of preliminary consultations, with the result that criticisms have been expressed which, I hope, have now been set at rest.
Clause 14, apparently, has the frightening purpose of enabling the Northern Irish Legislature to enact that property can be taken without compensation. While in no sense seeking to endorse such a principle, I think that the Solicitor-General has made out a case for the clause. As he said, it has been argued in the courts, and successfully, that any interference with the completely free use of property, necessarily exercised in the public interest and for purposes of social advancement will give rise, because of Section 5 of the 1920 Act, to a lawful right to compensation. That may lead to results which really are impossible to envisage and it is for that purpose, as I understood the remarks of the Solicitor-General, that the Clause has been introduced. Speaking for myself, I thought that he certainly made out a case for it.
The first part of the Bill, as the Solicitor-General explained, is designed to give effect to recommendations made by the Sheil Committee, over which Mr. Justice Sheil presided and which reported in 1957. I have compared the provisions of the Bill with that Committee's Report and it seems that the Government certainly have chosen the most important recommendations of that Committee and have embodied them in the Bill. To that extent I congratulate the Government, 838 for it was a most valuable Report and is so regarded by everyone who has had to consider it.
I would, however, make this comment. There are certainly some other things which I would have thought the Government could have included in the Bill. Some of them have already been referred to in another place and today I shall refer to only two of them and ask the Government whether they might be dealt with, even at this stage. The first question arises on the subject of the adoption of children in Northern Ireland, it is apparently the case now—and this is a matter which, I understand, has been raised in Northern Ireland—that because of the existing provisions of the Northern Irish Legislative code a most unreasonable position arises regarding the adoption of children by persons in Northern Ireland.
There are a number of people domiciled in Great Britain who take up, for one reason or another, residence for a prolonged period in Northern Ireland, either because they may be members of Her Majesty's Forces, or because they are engaged on some contract of service in Northern Ireland. Under the existing provisions of the Northern Irish code persons domiciled in Great Britain—as those persons to whom I have referred would be—but resident in Northern Ireland, are entirely debarred from adopting an infant in Northern Ireland. Equally, they cannot adopt an infant in Great Britain unless one of the adopters lives in Great Britain for three consecutive months preceding the application to adopt and both have been living together in Great Britain for at least one of those months.
That is the result of the operation of Section 27 of the Northern Ireland Adoption of Children Act, 1950 and of Section 15 of the English Adoption Act, 1958. It obviously imposes hardship. Of course, it is in the general interest that children who have no homes of their own should be adopted by persons who are anxious to adopt them and should be given a chance to live full lives. Because of this accident of legislation, many people—I do not say that there are hosts of them, but a not inconsiderable number—whose homes are in England and whose work is in Northern Ireland cannot adopt children either in England 839 or in Ireland. That is something which should be changed, and the only obstacle in the way of change at the moment is the restricting provision of Section 4 of the Government of Ireland Act, 1920.
Once one is about the task of enlarging the freedom of action of the Northern Ireland Legislature, surely there I have pointed to a situation which is particularly amenable to some handling by the Bill. Section 4 of the 1920 Act is the only obstacle, and I understand that if that Section were changed this anomalous provision could be brought to a more commonsense proportion. That is one of the provisions to which I suggest the House might give attention in the course of considering the Bill.
The other provision is one to which I believe the Solicitor-General made passing reference. That relates to a recommendation made by the Report of the Northern Ireland Child Welfare Council on the Operation of Juvenile Courts in Northern Ireland. Its recommendation, which it urged strongly, is set out on page 18 of its Report, at paragraph 41, and I think that I can do no better than read the paragraph which is quite short and specific in its terms. It states:Although there is power for the transfer of probation orders between England and Scotland when a person on probation changes his residence from one country to the other, this power does not extend to Northern Ireland. We understand that by an official arrangement supervision of English or Scottish probationers is carried out in Northern Ireland and vice versa but no action can be taken if a breach of the probation order is committed. We therefore recommend strongly that reciprocal arrangements similar to those in force between England and Scotland should be made in respect of Northern Ireland.I put it to the Government for consideration whether something on those lines could not be incorporated in the present Bill.
There is only one other matter to which I should like to refer, and that is the provision in Clause 11 with regard to jurors. The provision in terms is to the effect that juries can consist of seven persons instead of twelve. That is a provision which I understand is disliked in Northern Ireland, at any rate by the legal profession. I must say that it is a provision for which I myself have a considerable distaste.
What is the position? For criminal causes the Bill proposes that there shall 840 still have to be twelve jurors. For civil causes there may be no more than seven jurors. My first question is this: if it is necessary to try a criminal cause with twelve jurors, why is it not equally necessary to try a civil cause with twelve jurors? In both types of legal proceeding what the court wants to get at is the truth, and it wants to use the best method possible of ascertaining the real facts.
The issue in a criminal cause has to be considered by twelve persons. Under the code of law which we are considering they are considered the right number of persons for the purpose of ascertaining the truth in a criminal cause. Why in a civil cause, if this Measure goes through, should it be possible to ascertain the truth with seven jurors? The issues of fact are very often similar. In civil causes they are often of the greatest importance to the individual, and it passes my comprehension why, if twelve jurors are necessary in a criminal case, they are not equally necessary in a civil case.
I do not like Clause 11 at all. I have a further objection to it. If one is to reduce the number of jurors, is it really a very good thing to reduce them to an odd number? If we reduce them to an odd number, are we really not tempting jurors to come, as it were, to compromise verdicts by a majority, instead of discharging what is their real duty, namely, to see whether they can come to a single verdict which embraces all their assents? If they cannot do that, they ought to disagree and there should be a new trial. If there is an odd number, surely we are almost inviting them to decide by a majority, which is against their duty.
I quite see the difficulty that busy persons do not want to be kept away from their occupations for long periods of time. I would say two things with regard to that. In the first place, is the Solicitor-General really satisfied that every administrative step has been taken and is taken in Northern Ireland to prevent jurors sitting around in courts unnecessarily, waiting to go into the jury box? A lot can be done to prevent people wasting their time, by ordinary simple administrative provisions.
Secondly, if the numbers available for jury service are so limited as to impose 841 an undue burden upon those who are called to serve, would it not be reasonable to enlarge the qualifications of those who can serve upon juries? I am told—perhaps the Solicitor-General will tell me whether I am right or wrong—that to qualify for jury service in Northern Ireland one has to occupy premises of an annual value of £40 or over. I do not know whether that is right or not, but that is what I have been told. I am also told that the great bulk of premises in Northern Ireland are of an annual value of between £20 and £30. If that is so, it means that there is in operation there a property qualification which produces the result that a very large number, and indeed the bulk, of Northern Irish citizens cannot serve upon juries.
I would be grateful if the Solicitor-General would make some inquiry, if he cannot answer me straight "off the cuff", as to whether I am right or not. If I am right, one simple way of dealing with the matter would be to enlarge the qualification and in that way to make far more people qualify to serve on juries so as to alleviate the burden. The Solicitor-General appears to have received some information. If he would either shake his head or nod, it would help me.
§ The Solicitor-General indicated dissent.
§ The Solicitor-General
I was not indicating that the right hon. and learned Gentleman was misinformed. I was merely indicating that I have not received any information.
§ Sir F. Soskice
In that case, may my point be put in cold storage until the Solicitor-General is more adequately informed?
Whether I am right or wrong, I would urge upon the Government the general principle that jury service has something of fundamental importance in it, and that the community is entitled to look to the individual citizen to be ready to shoulder a not inconsiderable measure of personal inconvenience to discharge that duty. That is the objection which I have of Clause 11. As I have said, it is not an objection which only I personally hold. It is one which, to my knowledge, is held in some circles in 842 Northern Ireland and I put it to the Government for their consideration.
Having made those criticisms of the Bill, I would certainly advise my right hon. and hon. Friends on this side of the House to give it a welcome. It is a useful Bill. It is perfectly right in principle; and, subject, of course, to our retaining our right to look at it very closely in Committee, I feel that we ought to be ready to give it a Second Reading.
§ 4.20 p.m.
§ Captain L. P. S. Orr (Down, South)
On behalf of my hon. Friends from Northern Ireland, I welcome the Bill. Much of it is a lawyers' Bill, and it is with some trepidation that I, a layman, enter into the discussion, particularly after the extremely able and lucid speech which the right hon. and learned Member for Newport (Sir F. Soskice) has just delivered. I shall not follow the right hon. and learned Gentleman into those parts of the Bill which deal with the Supreme Court or with the Rules committee, except to slay that I know that there is great feeling among solicitors in Northern Ireland about the composition of the Rules Committee. This is something to which my hon. Friends and I will direct attention when the Bill goes to Committee.
I was interested in the right hon. and learned Gentleman's comments on the two points which he considered ought to be in the Bill, the provision relating to adoption and the arrangements for juvenile courts and probation orders. I hope that the Government will look into these matters. I agree with the right hon. and learned Gentleman that, if we are engaged upon enlarging the powers of the Parliament of Northern Ireland, anything useful which should be added in the course of that enlargement ought to be dealt with in the context of the Bill, without waiting to take another bite at the cherry.
I wish to deal particularly with something the right hon. and learned Gentleman touched on, namely, the question of consultation prior to certain of the provisions of the Bill being operated. I am not sure that the right hon. and learned Gentleman suggested it, but it has been suggested in Northern Ireland and elsewhere that there is a duty upon the Government of Northern Ireland to consult 843 before making recommendations to, or entering into consultation with, the Government here about the enlargement of their powers. It has been suggested that, for instance, in regard to the Clause dealing with religious property and the Clause dealing with compensation, the Government of Northern Ireland ought to have consulted interested parties, such as the Churches, and so on, before taking this matter up. In my view, that is not a valid argument.
There is a great constitutional difficulty here. It is important to have the constitutional position right and not allow confusion to arise as between the two Governments and two Parliaments. The Parliament of Northern Ireland is not quite like a colonial Parliament Northern Ireland is very much a part of the United Kingdom. The electorate of Northern Ireland speaks not only through the Members of Parliament in Northern Ireland, but through the Members of Parliament which Northern Ireland sends to this House of Commons. The division of function lies between this Parliament, which determines the extent of the powers of the Northern Ireland Parliament, and the Northern Ireland Parliament itself, which determines whether those powers shall be used, how they shall be used and how they shall be administered.
Therefore, if we were to lay down what would, I think, be the constitutional innovation that, before the Government of Northern Ireland entered into discussion with the Government here about a possible enlargement of their powers, they had a duty to consult interested parties or a duty to consult the Parliament of Northern Ireland, we should, I think, lay the way open for grave constitutional difficulty. If the Parliament of Northern Ireland decided that it wanted greater powers and passed a resolution to that effect, on being consulted by the Northern Ireland Government, and then the Parliament here refused to give those powers, a serious constitutional crisis would be created.
In my view, the right practice to follow is that which is followed at present and has always been followed since 1920, namely, that inter-Governmental discussions are confidential and that the Parliament of Northern Ireland is not 844 consulted prior to the enlargement of its powers in this Parliament. If there is any duty about consulting Northern Ireland opinion, it must fall upon the Government here and upon the representatives here in this House who represent the Northern Ireland electorate. When the powers of the Parliament of Northern Ireland have been enlarged, and when the Government give power to recommend certain legislation to the Parliament of Northern Ireland, that is the stage at which a duty may fall upon the Government of Northern Ireland to consult the Parliament of Northern Ireland or other interested bodies, but not before. I think that it would be a dangerous innovation if a contrary view were accepted.
It is wise to have this clear, in view of criticisms which I have heard. I am not sure whether the right hon. and learned Member for Newport was criticising the Government of Northern Ireland or the Government here on this score.
§ Captain Orr
I am much obliged. Apart from whether his criticism as such is correct, I think that the right hon. and learned Gentleman is more correct constitutionally in putting it in that way.
I agree with the right hon. and learned Gentleman that the subject matter of Clause 13 was fully debated in another place, and I think that the Amendments there resolved the difficulties. At least, I hope that they have been resolved. If not, we can go into the matter a little further in Committee. I should have thought that the major objection, at least, had been removed. What I wish to deal with is Clause 14 regarding the taking of property without compensation.
My hon. and learned Friend and the right hon. and learned Gentleman pointed out, quite rightly, that the Government of Ireland Act, 1920 is, as it stands at present, highly restrictive. It is so restrictive that lawyers disagree about how restrictive it is. The history of the words in the 1920 Act is very interesting. The words there, which it is proposed to amend by the Bill, provide that the Government of Northern Ireland is not empoweredto take any property without compensation.845 This provision, as the lawyers know, is derived from Article 5 of the American Constitution.
The curious thing is that the Home Rule Bill of 1886—the right hon. Member for South Shields (Mr. Ede) will be interested in this, because of his knowledge of Irish history—did not contain these words. The Bill of 1893 did contain such words. They were put in the Bill of 1893 because it was thought necessary to protect the Irish landlords from expropriation, and their inclusion was bitterly resented by the Irish nationalists of the day. The result was that, in the Home Rule Bill of 1912, when the Liberal Party was in power, there were no such words at all and no such provision was ever suggested.
In the 1918 Irish Convention, which was representative of all creeds and classes, there was no mention of the need for any such words. When the Government of Ireland Act appeared in this House first as a Bill, the words were not in it, and the Bill went through this House of Commons without such a provision appearing. In the House of Lords, at the very last stage, the Earl of Wicklow moved an Amendment which is now incorporated in the Act. The Government resisted it, and they resisted it when it came back to the Commons. Due to the exigencies of Parliamentary time, the need to get "he Measure on the Statute Book and the need for compromise all along the line, it was finally incorporated in the Bill.
The very restrictive nature of these words, "to take property without compensation", has resulted in a tremendous body of most interesting litigation in the United States, where the words are less restrictive than in our case. I understand that lawyers differ enormously over the interpretation of the words "take" and "property". I have a whole series of examples of litigation in the United States, but one or two cases are interesting. In 1905, there was an ordinance prohibiting hoardings more than 8 ft. above the ground. It is obvious that the effect of the ordinance is to deprive the landowner of the ordinary use for a lawful business purpose of a portion of his land. In MacDermot v. Seattle, in 1933, the plaintiff had a barber's shop which he kept open until 11 p.m. An ordinance which 846 ordered it to be closed at 6 p.m. was held to be a taking of property.
There are many other examples. In Hanker v. New York, in 1898, the right to practise medicine was recognised as a valuable property right. Sometimes it has gone the other way. In Lewis K. Liggett Company v. Baldridge, in 1928, in which the United States Supreme Court considered a Pennsylvanian statute forbidding a corporation to own a pharmacy, the statute excepted from the prohibition the pharmacy belonging to the company before the Act came into force. The litigation concerned a pharmacy subsequently acquired by the company, yet the Act was held void as an improper deprivation of property. The case which went the other way was The General Box Company v. the United States, in which the Supreme Court held on the facts in that case that the destruction of the petitioner's timber was not a taking by the United States for which the Fifth Amendment required compensation.
In this long list of cases the Supreme Court was never unanimous; there was always a difference of opinion. We are, therefore, faced with a narrow restriction in the Government of Ireland Act over which lawyers bitterly disagree about interpretation, and, consequently, it is impossible for the Government of Northern Ireland to embark on the sort of legislation we have here for slum clearance and development without the fear of very long and cumbersome litigation. There has already been quite a lot of such litigation. There are several cases cited, such as O.D. Cars and Others, which have gone to the House of Lords. The House of Lords can only decide on one particular case and under one particular set of circumstances. If we were to fear that there would be a continuous stream of this kind of litigation, we would make no advance in the sort of development which is required.
I think that there is no fear of the Government of Northern Ireland putting legislation before Parliament at Stormont which would be onerous on the individual. There is no suggestion that that Government would go in for wholesale expropriation. The 52 members of the Government of Northern Ireland represent the people of Northern 847 Ireland, a very independent type of people who are not in the least likely to sit by and see the rights of the individual subordinated to any undue degree to those of the State. I am sure that this House of Commons, which determines the extent of the powers, can safely leave it to the Parliament of Northern Ireland to ensure that no undue or unfair use is made of the powers. It would be intolerable if Parliament here were to say, "We do not think the Parliament of Northern Ireland can be trusted in this respect," and I hope that that will not be said.
I welcome the Bill. I hope that the House will pass it and will extend the powers. I endorse what the right hon. and learned Member for Newport said, namely, that if there is any other power which should be extended we ought to examine it carefully. I hope that the House will give the Bill a Second Reading.
§ 4.35 p.m.
§ Mr. Donald Wade (Huddersfield, West)
The hon. and gallant Member for Down, South (Captain Orr), at the beginning of his remarks, referred to the subject of consultation with the people of Northern Ireland prior to introducing legislation of this nature. It was not my intention to talk about proportional representation, but, if the people of Northern Ireland were represented in this House by some method of proportional representation, so that we could be satisfied that all shades of opinion were adequately represented, I should feel happier about accepting the view which he expressed. I will return in a few moments to the subject of consultation with the people of Northern Ireland.
At first sight, the Bill would seem to be primarily concerned with the administration of justice. However, on examination, I think it is clear that it raises some matters of constitutional importance. I do not suggest for a moment that the administration of justice is not very important, but a distinction can be made between legislation dealing with the administration of justice and legislation which involves constitutional changes.
The Solicitor-General pointed out that the Bill was divided into three parts: 848 the administration of justice, the enlargement of legislative powers with regard to matters not relating to the Supreme Court, and miscellaneous provisions. Another breakdown would be to point out that the first twelve Clauses deal with the judiciary, while Clauses 13, 14 and 15 have no direct bearing on the judiciary, but are concerned really with town planning involving constitutional considerations. I should have thought that it might have been wiser to have two separate Bills, but I merely put that forward as my own point of view.
I do not propose to discuss every Clause in the Bill. I should be very unpopular if I were to do so. I hope that the Solicitor-General, or Minister who winds up the debate, will reply to the inquiry as to why the right of appeal to the House of Lords is to be limited.
On Clause 8, which sets up the Supreme Court Rules Committee, I notice that the Lord Chief Justice is to be Chairman of the Committee and thatThe powers of the committee may be exercised by the chairman thereof and not less than four other members thereof of whom two are judges of the Supreme Court.It would seem to follow that three members out of five may be judges, which, I should have thought, was rather overloading the Committee with judges.
May I say, in passing, that I welcome Clause 17, which gives power to pass laws to prevent unnecessary suffering to horses exported from Northern Ireland?
My main object in rising is to direct certain observations specifically to Clauses 13 and 14. By these Clauses Amendments are introduced to the Northern Ireland constitution, and particular reference is made to Section 5 of the Government of Ireland Act, 1920, and to Article 16 of the Articles of Agreement of the treaty between Great Britain and Ireland.
§ Captain Orr
Would the hon. Member accept that all the legislation passed in this House since the Act of 1920 is an alteration to the constitution?
§ Mr. Wade
To a greater or lesser degree that may be so, but we have here a specific amendment of the constitution based on the treaty between this country and Northern Ireland.
A word about Clause 14, which the right hon. and learned Member for 849 Newport (Sir F. Soskice) seemed to regard as reasonable but which struck me forcibly. May I read it, as it is a short Clause:The restriction imposed by subsection (1) of section five of the Government of Ireland Act, 1920, on the power of the Parliament of Northern Ireland to make laws that precludes it from making a law so as directly or indirectly to take any property without compensation is hereby abolished.That seems rather a sweeping Clause and is clearly a constitutional amendment It may well be that there are arguments of administrative convenience in favour of this change in the law, but, nevertheless, a general principle is involved, and one would expect the whole subject to be very fully considered in Northern Ireland before the British Parliament was asked to pass a Bill amending the constitution in this way.
I notice that there has been no such full consideration. I take the point which the hon. and gallant Member for Down, South made, but I am not entirely satisfied with the view which he put forward. Perhaps I may quote from a memorandum which has been sent to me by those who are somewhat critical of the Bill:Without any public discussion in Northern Ireland, without any public inquiry, without hearing the views of any interested body of opinion, this Bill was presented in the House of Lords. During its passage the Irish Roman Catholic Bishops met the Lord Chancellor, but apart from this no body of opinion from Northern Ireland has been consulted so far as is known. It is doubtful whether many Members at Westminster know much of the provisions of the Government of Ireland Act, or even realise that Northern Ireland has a written constitution which has within it those written safeguards so long cherished in many countries, in particular, the United States".May I quote from another memorandum? Sometimes quotations enable one to abbreviate one's speech. Referring to the amendment to Section 5, it reads:Section 5 (1) of the Government of Ireland Act, 1920, expressly prohibited the Parliament of Northern Ireland from making any law so as, either directly or indirectly, to take any property without compensation. A similar prohibition is contained in almost every written constitution, the most notable being the 5th and the 14th amendments to the American Constitution. All the Commonwealth countries have such a prohibition.I have had no opportunity to check whether the last statement is correct.Clause 14 of the present Bill proposes to abolish this restriction so far as Northern 850 Ireland is concerned, and this proposal is made without anyone in this country—except, presumably, a few in Government circles—being aware of what is happening.I will not express my views on the advantages or disadvantages of written constitutions, although having been brought up in this country I am inclined to favour an unwritten constitution. But the fact is that Northern Ireland has a written constitution, and having regard to the special circumstances in Northern Ireland, that may well be advantageous. The important point is that any amendment should be considered with very great care both in Northern Ireland and in the British Parliament.
As to the merits of the case—I am still referring to Clause 14—I gather that the objection to the existing law is that legislation introduced in the Northern Ireland Parliament and passed into law may be subsequently challenged if it is found to be contrary to Section 5 of the Act of 1920 and that it is possible for legislative provisions to be declared void after they have been in operation for some time. I see that that may give—and on occasion has given—rise to some difficulties. On the other hand, an advantage of the existing provisions of the Act of 1920 is that legislation has to be carefully examined when it is introduced to ensure that it is not ultra vires to the constitution.
In other words, it is necessary to ensure that legislation does not contain provisions which would involve taking property compulsorily without compensation. That is the point. If there are practical difficulties, I should have thought that some more modest amendment could have been introduced to overcome these difficulties without abolishing the safeguards contained in Section 5 of the 1920 Act.
I have read the whole of the debate in another place, in which the Lord Chancellor stated that he had received assurances. It would be out of order to quote the Lord Chancellor.
§ Mr. Wade
I stand corrected, but I will not burden the House with the full quotation.
The Lord Chancellor said that he was satisfied that the Parliament of Northern 851 Ireland had no intention of introducing confiscatory legislation. But it is not clear whether he is aware that the Northern Ireland Parliament knew nothing whatever, or very little, about the proposal to amend the constitution, and that the general public in Northern Ireland appeared to know nothing about it. Therefore, how can he be satisfied and what exactly were the assurances given?
May I be allowed one last quotation—from a Member of the Northern Ireland Parliament, and I believe the only Liberal Member, Miss Murnaghan, who writes to me:Clause 14 of the Northern Ireland Bill, if it goes through in its present form, will empower the Northern Ireland Parliament to ignore the property rights of the citizen if it sees fit to do so. It is by no means inconceivable that future protests in our Parliament against some confiscatory legislation will be met by the argument that the purpose of Clause 14 was to permit such legislation. A Government, under pressure to carry out some public improvement work, but lacking the necessary funds, might well succumb to this open invitation to take property without compensation.It may well be that there is no such intention, but there is a distinction between introducing legislation which does not involve any breach of the existing constitution and removing a Clause which is already written into the constitution. That is the point. I do not think that anyone would object to legislation enabling important public work to be carried out; I certainly would not object. But it is reasonable to ask that adequate safeguards should be maintained, particularly in view of the fact that these were considered to be of real importance when the constitution of 1920 was drawn up.
Turning to Clause 13, much of the discussion on this part of the Bill has turned on the effect on religious and educational bodies. As I understand it, this Clause removes certain restrictions on the acquisition of property of religious and educational bodies and the object—a very worthy and proper object—is to enable new housing and slum clearance to be carried out and to permit the development or redevelopment of land and property in Northern Ireland. I see no objection to that in principle.
As I have said, I have read the debate in another place and I am aware of the 852 Amendment which was introduced there to satisify the religious denominations. I have still some doubts in my mind whether that Amendment is entirely satisfactory. I should have liked to see some assurance that where property is taken compulsorily there will be both compensation and the offer of alternative accommodation. That is important to religious bodies. However, that can be considered in Committee.
In any case, I suggest that there should be provisions, unless these are already in existence—perhaps I may be advised on this—first, that an inquiry must be held whenever there is an application for a vesting order; secondly, that the results of such an inquiry should be made public; and, thirdly, that there should be a right of appeal.
I think that these are reasonable requests, but the main point I would make is that which I made at the outset and which was the reason for my rising to take part in this debate, that where there are amendments to the Constitution I would prefer to see them dealt with in a separate Bill, but if they are to be incorporated in this Bill we must be satisfied that there are proper safeguards against any possibilities of abuse.
§ 4.50 p.m.
§ Mr. Stratton Mills (Belfast, North)
If I were to follow the hon. Gentleman the Member for Huddersfield, West (Mr. Wade) in all the points he has put forward I should be carried very much further than I intend to go in my remarks today, but there are just two matters on which I would say a word.
First, he made great play with this being substantially a constitution amendment Bill. My hon. and gallant Friend, the Member for Down, South (Captain Orr) made the point, very fairly I thought, that over a period of years we in Northern Ireland have had to come to this House to get amendments to the constitution of Northern Ireland, and every one of those Measures was in effect a constitutional Bill.
With particular reference to Clause 14, which relates to Section 5 of the Act of 1920, and abolishes the prohibition on making laws for taking property without compensation, the House may be interested to know that it has been necessary to come to this House over the 853 last forty years to get enabling legislation. This has been necessary to clear up the restrictions on the institution of certain proceedings under the Truck Acts, the working of minerals in connection with atomic energy, the destruction of diseased bees, and the abolition of certain anachronistic rules of inheritance. Perhaps the Liberal Party may have some special interest in the destruction of diseased bees. However, I think that the point is fairly made that these are all day-to-day problems which do arise and which, I think all parties in this House recognise, come within the legitimate function of Government.
The second of the hon. Member's two points I would comment on was about the Amendment to Clause 13 which was accepted in another place, and relates to slum clearance. I must say that I myself have some doubts as to these amendments. Lord Silkin said in another place that it might well be that the concessions have gone too far and might prejudice the drive by Belfast Corporation to provide better houses for the people living in that area. Time will show. As has been mentioned, there are some 200 denominations existing in Northern Ireland and there is a wide variety—I shall not give any examples—of them, and they own many small church halls. These will all be protected, and if in respect of one such hall a denomination were to dig in its feet and refuse to negotiate, then a whole housing development scheme could be prejudiced. I must say that those who in another place pressed the Government on that Amendment will bear a very heavy responsibility indeed if it is found that, due to their efforts, our slum clearance scheme is prejudiced.
§ Mr. Stratton Mills
I merely make the point that it is one of the accidents of history that this problem has arisen. Section 5 of the 1920 Act provides certain exceptions whereby the Government can take property, for instance, for railways, sewerage, roads. For such purposes there is already power compul- 854 sorily to acquire this type of property. In that Section the term "public utility" appears. I understand that the Northern Ireland Government have been told by their legal advisers that those words "public utility" are not wide enough to cover the acquisition of property for slum clearance. That is one of the unfortunate things about the drafting. One sees it looking backwards at the drafting forty years afterwards. I really feel that this whole matter has been blown up as very much a storm in a teacup by people who, perhaps, I say very respectfully, are not altogether sympathetic to Northern Ireland and who use this merely as a stick with which to beat Ulster.
However, I pass from those points, which are not my main reason for taking part in this debate, to say that generally I welcome the provisions of this Bill, and I wish to deal very briefly with Clause 8 concerning the Supreme Court Rules Committee. In passing I must, of course, declare an interest as a solicitor in Belfast affected adversely or otherwise by the rules of the Supreme Court. My hon. and learned Friend the Solicitor-General will be glad to know that generally speaking the provisions of Clause 8 have been welcomed by the legal profession in Northern Ireland, and with the profession I would wish to pay tribute to the Government for these reforms and to the Sheil Committee for the hard work it has done.
There are, however, two points about which, I must advise my hon. and learned Friend, dissatisfaction does begin. On the first I would refer to page 5 of the Sheil Committee's Report where it is suggested that there should be created a body to be called the Rules and Administration Committee which should be ancillary to the Supreme Court Rules Committee.
I must try and avoid confusing the House with these two committees. The Sheil Committee suggested that the Rules and Administration Committee should be comprised of officials of the High Court, representatives of the Law Society and representatives of the Bar Council and presided over, perhaps, by a retired civil servant or a retired judge. The important point in this idea is that in the Rules and Administration Committee the main burden of work should be done by Supreme Court offi- 855 cials, to whom also I would pay tribute, because they are in day-to-day touch with the working of these Rules.
I think that it is widely accepted in the legal profession in Northern Ireland that the Supreme Court Rules which came into effect in 1936, very much earlier than the Rules under which one works in England, are now in a really absolutely dreadful mess. If my hon. and learned Friend would care to consult the "red book", as we call it, as distinct from the "white book" in England, he will find that pasted into virtually every page there are emendations, things which have been added, things which have had to be crossed out, and the whole thing is very much a dog's breakfast at the moment. The feeling has been expressed by both branches of the profession that a major revision of our Rules is necessary.
The value of the suggested Rules and Administrative Committee is well expressed by the Evershed Committee on Supreme Court Practice and Procedure in its Second Interim Report, page 49, where the same idea was envisaged. The Report said:Our main difficulty in regard to the existing 'Rules Committee'"—this of course is in England—is that H.M. Judges have not generally speaking a close knowledge of the Rules or their working nor can they properly be expected to devote their time and attention to examination of the working of the Rules and their relationship inter se. It seems to us that the existing Committee"—I stress the words—though impressive in point of distinction is somewhat far removed from the workaday affairs of administration of the Rules.This is very much my feeling.
I would emphasise that the Committee which I envisage, and about which I shall move Amendments in Committee, should help the new Supreme Court Rules Committee. It should, of course, have to report to the Supreme Court Rules Committee and everything should have to be sent to, approved by or sent back by the Supreme Court Rules Committee, which I believe must remain dominant in these matters.
The second question, about which I am troubled and about which the Incorporated Law Society of Northern 856 Ireland is also unhappy, concerns Clause 8 (3) which says—and I am now coming back to the Supreme Court Rules Committee:The powers of the committee may be exercised by the chairman thereof and not less than four other members thereof of whom two are judges of the Supreme Court.I have great respect for our judges and I mean no disrespect when I say that this provision, as the hon. Member for Huddersfield, West has already mentioned, will give rise to great practical difficulty in a major revision of the Rules of the Supreme Court.
In Northern Ireland there are only five judges, yet this Supreme Court Rules Committee cannot work unless the Lord Chief Justice and two other judges are present. When one thinks of illness, of absence on assize, or of busy judges engaged in other work, I think that the Solicitor-General will see that this may give rise to enormous practical difficulty and may hold up the urgent revision of our Rules. I suggest that the wordsof whom two are judges of the Supreme Court.should be left out. I feel that in all cases the Lord Chief Justice must remain in a dominant position and all Rules must have his approval.
If one considers this matter in relation to England it should be noted that there are some fifty judges and only seven are on the Supreme Court Rules Committee. The Committee could proceed with work even if the Lord Chancellor was the only judge present. In theory it is not necessary for the other seven judges to be present for the Committee to function.
I apologise to the House for having mentioned these two technical points at such great length. I shall table Amendments in Committee dealing with both matters and I understand that these have the support of nine of my hon. Friends from Northern Ireland, together with several other representatives from English constituencies. I can assure the House that the Incorporated Law Society is most unhappy on these two points. Rather than that the time of the Committee should be wasted, perhaps it would be possible for the Solicitor-General or the Joint Under-Secretary of State for the Home Department to meet 857 some of us in advance to discuss these Amendments and to help us in our worries. I welcome this Bill and hope that the House will give it an unopposed Second Reading.
§ 5.5 p.m.
§ The Joint Under-Secretary of State for the Home Department (Mr. Charles Fletcher-Cooke)
We have been discussing this afternoon the results of events that took place forty years ago, and forty years ago no one, certainly not my right hon. Friend the Member for Woodford (Sir W. Churchill), who has listened to so much of this debate and who played so prominent a part in those events, would have thought for one moment that the legislation which we are now seeking to amend would have lasted so long in the truncated form in which it has come down to us, because the Government of Ireland Act, 1920, was intended to cover the whole island and to be a transitional Measure until legislation could be devised which would ensure final and permanent legislation for the whole of that island. I could not help wondering what must have been going through the mind of my right hon. Friend the Member for Woodford as he cast his thoughts back to the troubled events of that time.
The right hon. and learned Member for Newport (Sir F. Soskice) asked some pertinent questions on the Bill. We are grateful for his welcome in principle to the Bill and we are perfectly happy to accept his suggestion that we should seek to look at it not through our eyes, but through the eyes of Northern Ireland. The right hon. and learned Gentleman's first suggestion related to the apparent restriction of appeals to the House of Lords and even to the Court of Appeal. In empowering these restrictions—and the Bill only empowers them and does not impose them—what we have in mind, and what the Northern Ireland Government have in mind, is to equate the position, and not more than that, as regards appeals in and from Northern Ireland, with this position obtaining in Great Britain. It is well known that in Great Britain there are many circumstances in which all parties think it right that appeals should be limited.
This, in many cases, is due to the fact that successive appeals are a great 858 burden on the poor litigant and it must be particularly remembered that in Northern Ireland there is no legal aid as we have here. Therefore, it might be most oppressive for a powerful litigant to haul an opponent less well endowed with funds through successive appeals in certain cases. I think that it was accepted by the right hon. and learned Member for Newport that there must be some cases where there should be normally a restriction upon the right of appeal.
It will be found that these were investigated in Great Britain by the Ever-shed Committee, which found that an unlimited right of appeal is not necessarily an advantage to a litigant. There can be no doubt that appeals constitute an important factor in the cost of litigation, and the Committee recommended that certain restrictions on the right of appeal should be kept. The restrictions have varied from time to time. There was at one time an absolute bar on the right of appeal on questions of fact from the county court in this country. This has been somewhat modified as jurisdiction has been widened, but there is still a considerable bar on appeals from the county court and there is in many cases an absolute bar on appeals from such courts as the divisional courts when they are sitting as appellate courts.
It was thought right that the Parliament of Northern Ireland should have some sort of right to legislate for what is eminently a domestic matter for them, even though appeals to the House of Lords are in somewhat different case. But they have no intention of doing any more than restricting the right of appeal to the House of Lords purely in the same sort of cases as we do here.
The right hon. and learned Gentleman referred to the new Rules Committee, which follows one of the recommendations of the Sheil Report. He said it seemed surprising to ham that the Rules Committee would be able in certain circumstances to override existing statutory provisions. That is so of our Rules Committee. But there is this safeguard—Which will certainly be provided for the Northern Irish Rules Committee as it is here—that it is subject to the negative Resolution procedure of this House. I remember moving a Prayer, 859 about three years ago, to annul some rules of court by our Rules Committee. I think it was the first time it had ever been done, and it was considered somewhat lèse-majesté, but it succeeded, and the Committee had to take them back and think again. That is the sort of safeguard that we have if the Rules Committee of Northern Ireland seeks too readily—I do not for one moment suggest that it would—to override the existing statutory provisions, or to embark on a scheme of wild reform.
The criticism of the new Rules Committee has, on the whole, been the other way. My hon. Friend the Member for Belfast, North (Mr. Stratton Mills) suggested, with some urgency, that the Rules Committee will be too slow, too eminent and too solid and will not get on with the job as it should. He has given notice that he will move Amendments in Committee seeking to put some ginger into it, and has suggested that he and his hon. Friends, who have the backing of the Law Society, should meet us to discuss this before the Committee stage. Since he has made this suggestion, perhaps all I need say for the moment is that we willingly accept the suggestion if only to ease the passage of the Bill through Committee as far as possible.
Then comes the right hon. and learned Gentleman's criticism, which was echoed by other speakers, that some of the difficulties relating to Clauses 13, 14 and 15, which I think have been largely ironed out now—at least one hopes so—could have been obviated if there had been prior consultation before the Bill was introduced. That was very much the burden of the song of the hon. Member for Huddersfield, West (Mr. Wade). I thought the constitutional position was admirably put by my hon. and gallant Friend the Member for Down, South (Captain Orr). It is very important to keep distinct the constitutional arrangements that there are vis-à-vis the relationship between Northern Ireland and Westminster and those between the provinces of Canada and their Federal Government or the States of the United States and the Federal Government and Congress. They are not at all the same.
One difference—it is a very important one—is that we at Westminster retain the full power at all times to legislate 860 for anything to do with Northern Ireland. There is in this case a duplication of power which there is not in the case, for example, of the provinces of Canada or the States of the America and other federal constitutions. There are many other differences, but that is a very important thing to remember because it shows the importance of having with us—we recognise their importance today and on other days—Members directly elected from Northern Irish constituencies to this House. They are the symbol of the fact that we continue to retain full power to legislate on all matters affecting Northern Ireland.
Therefore, it would be unconstitutional, unprecedented and, I submit, quite improper if there were formal consultations with the Parliament of Northern Ireland before a Bill of this sort was introduced, and we do not propose to go into any innovations of that type
As to the other matters connected with Clauses 13, 14 and 15, the hon. Member for Bermondsey (Mr. Mellish) made a pregnant interjection while my hon. and learned Friend the Solicitor-General was speaking. He wondered whether or not the lesser word "development" might not be substituted for "use" in Clause 13 (1, b). The objection to that, in a brief word, is that what we wish to empower the Northern Ireland Government to do is not merely to control the possible change of use but to control the actual abuse. Many of the things that social conscience and public legislation now require are not development at all but mere abuse of an existing practice.
For example, overcrowding is not a change of use in the technical sense of the word, but an abuse of an existing use. Noxious trades may not come within any change in the use classes category and so constitute development, but, nevertheless, they may be an abuse. Smoke control and such things are not development, but an abuse of an existing user.
That is why the more restrictive word "development" is probably inappropriate even though it would, of course, be nice to be able to meet the hon. Gentleman, because I am sure that the fears that he has come from the most worthy of motives. But I will assure him that there is no intention at all to 861 do anything like forcibly changing the use of a building put to religious purposes except in so far as it might become an abuse in the way that I have mentioned. We shall no doubt debate this again in Committee, but my preliminary warning to him is that I think it will be difficult to find any other form of words which will not unduly restrict the Government of Northern Ireland in pursuing the social legislation which they must have.
The hon. Member may have heard the remarks of my hon. Friend the Member for Belfast, North, who suggested that the Amendments made in the House of Lords have already gone too far. I should have thought that probably the balance had been fairly well struck. I must, therefore, tell him that if we were to give way any further on this point, we should probably run into equal opposition from the other side.
§ Mr. Mellish
Speaking for those for whom I am privileged to speak, I should like to say that we are greatly obliged to the hon. Member and his Department and those responsible in Northern Ireland for the changes that they have made. All that we wanted was the assurance which the hon. Gentleman has now given. I put up the word that I used in my interjection merely to provide a basis on which he could give the assurance, which I understand we shall get in writing anyway from Stormont. We are very happy about it.
§ Mr. Fletcher-Cooke
That is a very happy consequence. We are all greatly obliged to the hon. Member and others for the work that they have done.
There were two matters which it was suggested should have been included in the Bill, but which were not the problems relating to the adoption of children and to the reciprocal enforcement of probation orders. Both of these matters could have been introduced into the Bill. We were, however, anxious to keep it as short as possible, because it is a lengthy Bill as it is, and in both cases we have hopes that we shall have, as it were, functional Bills in the not too distant future which will deal with these subjects from a United Kingdom point of view.
We are hoping to have a Bill to carry out the recommendations of the Ingleby 862 Committee, and that will be a good opportunity to deal with the anomaly relating to the adoption of children. In the same way the probation service and probation orders are likely to come before us generally in the not too distant future, and we will do something there.
The right hon. and learned Gentleman criticised the arrangements for reducing the number of jurymen in civil cases. Seven, of course, was the figure that we had in this country during the war, not only for civil cases but also for criminal cases, and there are other parts of the British Commonwealth where the figure is the same today. We think that when "here is the shortage of jurymen that there is, this is about the best figure which we are likely to be able to find for civil cases.
I have not dealt with all the points, though I hope that I have dealt with the major ones, raised in this important debate. We have met in a constructive spirit and I hope that we shall go to the Committee stage retaining that constructive spirit. We have been warned of the points that we are likely to meet, and I hope that we shall be able to agree. On the principle of giving the Northern Ireland Government greater power, particularly because of the irritation that it causes this House when we have to come back year after year for amendments on what appear to be trifling matters of law, though they be of great importance to those concerned, we have had a warm welcome. It may be of satisfaction for hon. Members to remember that in future we shall not be troubled in the House so frequently if we pass the Bill into law because then we shall not have to deal with the trifling matters which my hon. Friend the Member for Belfast, North mentioned, such as diseases in bees and other matters relating to the stealing or violation of wrecks around the coast of Ulster. Therefore, I hope that we can get on as fast as possible.
§ Mr. Ede (South Shields)
Before the hon. and learned Gentleman sits down, could he deal with the point raised by my right hon. and learned Friend the Member for Newport (Sir F. Soskice) about the qualification for jurors in Northern Ireland? Has the information 863 for which my right hon. and learned Friend asked been yet obtained?
§ Mr. Fletcher-Cooke
It is correct, and no doubt we "hall be hearing a good deal about it in Committee. I have to give the right hon. and learned Gentleman that assurance. In broad terms, as the right hon. and learned Gentleman said, that is the qualification in Northern Ireland.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 38 (Committal of Bills).