Clause 80.—(REVOCATION OF CONTROL ORDER BY COURT ON APPEAL.) (Hansard, 13 April 1964)

§ Mr. Corfield
I beg to move Amendment No. 155, page 84, line 31, at the end to insert: Provided that the court shall not under this subsection give a direction which will afford to the dispossessed proprietor a sum greater than what he may, in the opinion of the court, have lost by the making of the control order. This Amendment meets an under taking given to the hon. Member for Islington, South-West (Mr. A. Evans). In subsection (4) as it stands, a local authority, on the revocation of a control order, is obliged on appeal to pay the dispossessed proprietor any surpluses made on the running of the house The hon. Member suggested that there ought to be a limit on the amount paid so that it should not exceed the loss to the dispossessed proprietor. This is clearly reasonable and the Amendment effects than improvement.

§ Mr. Corfield
I beg to move Amendment No. 156, in page 84, line 31, at the end to insert: (8A) If on an appeal against the control order the county court decides that the control order should be revoked, the county court shall fix the date on which the control order is to be revoked without regard to whether an appeal has been or may be brought against the decision of the county court, but that shall not prevent the local authority from bringing an appeal in accordance with the provisions of section 108 of the County Courts Act 1959. It may be convenient with this Amendment to take Amendment No. 157 in page 85, line 5, at end insert: (c) subsection (8A) shall not apply. and Amendment No. 161, in page 86, line 43, at end insert: (7A) If on an appeal under this section the county court decides to revoke the control order, the court may make an order under which the revocation does not take effect until the time for appealing against the decision of the county court has expired and until any such appeal brought within that time has been finally determined. and Amendment No. 162, in page 87, line 29, at end insert: (b) subsection (7A) shall not apply. The first Amendment deals with the case where, under Clause 80, there is an appeal against the control order and the county court determines that the order should be revoked. The ordinary rule is that the decision of the county court on fact and merit is final, although 135 appeal to the High Court lies in a matter of law. It should be borne in mind that by Clause 78(4), where the appeal to the county court is based on the ground that the control order is invalid, the court is required to confirm the order unless it is satisfied that the invalidity has been such that the interests of the appellant have been substantially prejudiced. On the face of it, the opportunity for appeal from the county court is fairly limited.
Nevertheless, it is right to provide that, although the decision of the county court in revoking the order must clearly have the effect of the order dying from the moment the court makes its decision, the local authority should not be deprived of its right of appeal on a point of law, because the matter might affect its whole policy. It has also to be borne in mind that the county court circuit would probably cover the whole of a local authority area and it might be important to have a more authoritative determination on the point of law although, from a practical point of view, if ex hypothesi a control order has been thrown out because of a technical invalidity, the easiest way of going about it would probably be to serve another control order free of the particular defect.
The Amendment is to make it clear that the right of appeal still exists and that either party may go to the court of appeal to get an authoritative decision, although the revocation order comes to an end on the date determined by the county court.
8.45 p.m.
The next Amendment, No. 157, is necessary because, I understand, the Scottish law is quite different on this matter. An appeal from the sheriff court always lies to the Court of Session by way of case stated. So it is always possible to obtain a decision of the higher court before the lower court actually makes its decision. Therefore it is not necessary to make a special provision here to enable the appeal court to make a decision after the lower court has made its decision.
The third Amendment in the group, No. 161, amends Clause 82. There we are dealing with the right of a local authority to appeal against the decision 136 of the county court that the control order which has been accepted as valid in the past and must be assumed to be valid should now be revoked. In this case, although the appeal is preserved—there is no difficulty about that—it seems right that by the Amendment the county court should have the right to defer the coming into force of the order of revocation. In other words, the county court will be able, in view of the fact that there is an appeal, to say, "We do not feel it right that the order should come to an end until the appeal has been settled." Otherwise we might have the situation in which the order would be on at one moment, off at another and then on again.
We are dealing in the second case with an order which must be assumed as legally valid and justified on its merits by the fact that the county court either approves it in the first place on appeal, or because there was no appeal, and the Bill makes the order itself conclusive. We have a corresponding Scottish provision in Amendment No. 162, which makes sure that this does not apply to Scotland because of the difference in the law which I have just mentioned.

§ Mr. Willis
While thanking the Parliamentary Secretary for his explanation and accepting the explanation of the first Scottish Amendment, I am not quite certain what the reasons are for the second one. The hon. Gentleman did not explain it thoroughly. He simply satisfied himself—rather wisely, I thought—by saying that Scottish legal procedure is rather different.

§ Mr. Corfield
The reason is exactly the same in both the Scottish Amendments. I understand that in the sheriff court appeal to the Court of Session is always by way of case stated. Therefore, there is the decision in the appeal court before the decision is made in the junior court. We cut out this provision in both cases because the procedure is the opposite way round from that in this country.

§ Mr. Willis
If the hon. Gentleman had said that in the first place we might have followed it, but he did not do so. He merely said that the procedures were different. Now he has said in what way they are different. He has explained them and explained that a stated case permits all the necessary 137 time. I do not wish to pursue the matter further; I merely wanted an explanation.

§ Mr. Manuel
It is time that we brought the Under-Secretary of State for Scotland into our proceedings. He has been sitting on the Government Front Bench gasping to be heard, but the Minister and his Parliamentary Secretary have been stealing all the thunder. The Under-Secretary has not been allowed to explain the Scottish repercussions to these Amendments. My hon. Friends will recognise that within the last half hour we have been wading through a mass of Amendments and counter Amendments and changes of Clauses which have altered them quite unbelievably.
I sympathise with the hon. Member for Bedfordshire, South (Mr. Cole) in trying to get the information which he desires to clear his mind on the legal implications. Clause 79 (2), which deals with an appeal against a control order, reads: On the appeal the court may, as it thinks fit, confirm or vary the scheme, and if an appeal has been brought against the control order and the court decide on the appeal to revoke the control order, the court shall not proceed with any appeal against the scheme relating to that control order. There is some difficulty in grappling with the position. What are the repercussions of the Amendment on Clause 79?

§ Mr. Corfield
If the court decides that the control order is not valid, then clearly the scheme under the control order cannot have any validity either. It therefore follows that there is no point in going on to consider the scheme or any appeal against it.

§ Mr. Manuel
Clause 79 has built a citadel of control orders and then, on appeal, it collapses and we are left with nothing. What is done with the building and the family concerned?

§ Mr. Corfield
As I said earlier, if the court decides to revoke on a technicality which can be right in practice, it is open to the local authority to make another order without the defect to which the county court objected. But if the county court throws the order out on merits on the ground that the house is not one to which it should have been applied on the facts of the case and the evidence, 138 then the order is dead, and unless the circumstances changed and the facts were different it would be irresponsible of the local authority to come forward again on exactly the same ground as that on which is had been turned down. The idea of the appeal procedure is that there can be a judicial and independent determination of whether these are circumstances which justify this drastic action.

§ Mr. Manuel
I thank the hon. Member for trying to answer the question. It leads to many more questions, such as who will pay the court expenses and will the local authority levy a rate to meet them but it clears the position as far as I want to go.