HC Deb 24 February 1965 vol 707 cc527-39

Order for Second Reading read.

10.3 p.m.

The Joint Parliamentary Secretary to the Ministry of Housing and Local Government (Mr. James MacColl)

I beg to move, That the Bill be now read a Second time.

I do not know that I can share the confidence expressed by my hon. Friend the Parliamentary Secretary to the Ministry of Overseas Development with regard to the business for which he was responsible and say that this Bill also is not dull. It is not a Measure of great general interest, although it is designed to make a useful and important improvement in the procedure of the House in dealing with the very technical body of orders which involve, perhaps, a conflict of interest between the Government and private persons. For this reason, it is important to look at it with some care.

The Act with which we are primarily concerned and which we seek to amend is the Statutory Orders (Special Procedure) Act, 1945, which provided Parliament and private interests affected by Ministerial Orders with a machinery for registering objections, although leaving with the responsible Minister the control of matters which are, for the most part, fairly local, detailed and executive in character.

It might be helpful to outline briefly the procedure laid down under the 1945 Act. The Act covers about 50 parent Acts under which orders fall to be made. The preliminary proceedings before the orders come to the House are governed by the provisions of the parent Act, under which the orders are made. They differ to some extent. In some cases, there will have been a public inquiry before an order has been made by the Minister. Whatever may have been the earlier proceedings, however, the order is made and comes to the House.

When the order comes to the House, within 14 days of its being made petitions may be lodged against it. If there are any petitions, they are referred to the Lord Chairman of Committees and the Chairman of Ways and Means, who act jointly in satisfying themselves that the procedural rules have been complied with. Where there is a petition which is one of general objection to the order, the two Chairmen have to be satisfied that it discloses a substantial ground of objection to the order. They have to be satisfied that the petition either calls for particular amendment or is one of general objection. At the end of the petitioning period of 14 days, the two Chairmen report whether the petitions should be presented and are in order. The first period of 14 days is called the petitioning period.

Then comes another period of 14 days, known as the resolution period. During this period, the House may resolve that the order be annulled. If it is annulled, that is the end of the matter; it is void and nothing more happens. That, however, is a rare occasion. A petition for a vote of annulment may be used to have a general debate on it, but in practice the orders are not thrown out in that way. What normally happens is that if there are petitions against an order, they go for consideration to the Joint Committee.

A petition for amendment of an order, by somebody who is affected by it and wants to alter its terms, goes automatically to the Joint Committee for consideration. If it is a petition of objection or resistance to the order on general terms, it goes to the Joint Committee only on a Motion of either House. Otherwise, it is subject to a Motion for annulment.

This is a quite complicated procedure, because it means that if there is a Petition of general objection the only way of getting it to a Committee is by putting down a Motion for annulment. That Motion for annulment has to be amended to substitute for direct annulment a reference of the Petition to a Joint Committee. Hon. Members who have indulged in operations of this kind will appreciate the difficulty if I say that it usually happens after 10 p.m. and at least three people are required in the team to do it. There must be the proposer and seconder of a Motion of annulment and somebody else to propose the amendment.

If it goes to the Joint Committee, the procedure is that first a factual statement on the facts agreed by the Minister and the objector has to be made. It is then for the objector to establish his case and not for the Minister to make the case for his order. In order to establish his case, the objector may call evidence in the ordinary way in a hearing before the Joint Committee. If he establishes a case to answer, it is for the Minister to reply and then for the Joint Committee to report on the order. If it reports back in favour of the order, the normal procedure is that without further proceedings the order then comes into operation.

This is somewhat hypothetical and it may have happened once but not, I think, more. If the Joint Committee reports against the order or puts in amendments which the Minister does not like, there is a rather complicated procedure by which he then introduces a Bill to confirm the order. The assumption is that the Second Reading and Committee stage of the Bill have been passed and we start with the Report stage and the Third Reading. The House can alter the Bill and pass it in the normal way—it has to pass both Houses consecutively.

That is roughly the position as it is today and on the whole it has worked very well. It has undoubtedly been a cheap and quick form of getting orders approved while at the same time allowing reasonable opportunities for objection by people affected.

However, there have been certain criticisms, particularly in about 1960 and 1961, of the impact of this procedure in the case of a provision of the Public Health Acts, which is no longer subject to this procedure and into which it is not necessary for me to go now. As a result of the criticisms of the procedure, the then Minister of Housing and Local Government set up an inquiry into the working of the Act and on 1st August, 1961, the right hon. Member for Hampstead (Mr. Brooke) made a statement about the changes which he thought ought to be made.

The first he proposed was that it should be made easier for petitions of general objection to be referred to the Joint Committee. That is dealt with in the Bill. The second was to see whether it was possible to allow objections which were out of time to be accepted. It has not been found possible to do that, but the petition period has been extended so that the chance of somebody being out of time is not as great as it was. It must be remembered that this is rather different from an ordinary Public Bill which may burst upon the House with very little warning. Such an order would usually have been made after a good deal in the way of preliminary proceedings, often including a public inquiry, so that members of the public affected by the order would know about it.

The third suggestion was that the resolution period, the period between the end of the petition period and the final disposal of the order, should be extended in order to leave more time for hon. Members to make their dispositions in order to attack or criticise the order. That is also dealt with in the Bill.

Finally, it was said that each House would be helped if its attention could be drawn to special points raised by an Order subject to special parliamentary procedure and that this might be achieved without legislation. I am advised that orders of this kind are referred to a scrutiny committee.

I turn to the Bill and point out how it fits in with what I have been saying. Clause 1(2) says that the period for presenting petitions, which I call the petition period, should be extended from 14 to 21 days. In subsection (3) the duty placed on the Lord Chairman of Committees and the Chairman of Ways and Means to consider whether a petition discloses a substantial ground of objection is no longer to be placed on those two very distinguished and busy people. In fact, they have never had to find that a petition did not disclose a substantial ground of objection and, therefore, it seems fairer and more sensible that such objections should go automatically to the Committee rather than be subject to a veto which in practice does not operate.

The next change, which is important, is that whereas at present, for a petition of general objection to get to the Committee there has to be a resolution of the House, under the new proposals, unless there is a resolution stopping it going to the Committee, it automatically goes there. This means that the petition of general objection would be looked at by the Committee, which would consider it in the dispassionate way in which Committees of both Houses normally consider these matters.

Those are the main points which I wish to draw to the attention of the House. I hope that hon. Members will feel that, although many people who are expert in these somewhat esoteric fields may feel that there are other improvements which might have been made, the improvements in the Bill are ones which have the distinguished assent of both the right hon. Member for Hampstead (Mr. H. Brooke) and my right hon. Friend the present Minister. If they agree on something, there are strong grounds for thinking that they must be correct.

This is a Measure which has been carefully considered. It is designed to strengthen our proceedings in connection with special orders and as a protection to the public who are affected by those orders.

10.18 p.m.

Mr. Graham Page (Crosby)

The Second Reading of this Bill gives the House an opportunity to look at a sector of its legislative procedure which was originally intended to provide cheaper and speedier legislation—it has done so over the years—in matters which are executive and local rather than legislative and general, but which, nevertheless, require the legislative procedure.

The special Parliamentary procedure, as the Joint Parliamentary Secretary so ably explained it, was forecast as long ago as 1944 and brought into operation by the 1945 Act. It superseded the provisional order procedure whereby this type of what I call executive legislation was enacted by scheduling orders to a once-a-year Bill—an inconvenient way of dealing with things. The 1945 Act was substantially extended in 1949, but remained unquestioned and operated well for 10 years. But in 1959 it was called in question as a result of the Leicester (Amendment of Local Enactments) Order, 1959. The criticism was that the procedure was being used at that time for orders of a legislative character.

Indeed, in the Leicester Order, the Minister had amended very many Acts going back many years. The original intention of this procedure was that it should be used for enacting orders of an essentially executive character providing for the local application of a general policy which had already been embodied in an Act of Parliament.

In one or two cases, the procedure certainly had resulted in some substantial legislation and in February, 1962, the appropriate steps were taken to exclude those cases from the special Parliamentary procedure. Thus the procedure now applies strictly to orders of comparatively limited scope whose purpose is the application of a general policy to local circumstances, the general policy having been formulated in the framework of a statute.

The most serious part of the 1959 complaint—and in dealing with this I am endeavouring to lead up to the amendments proposed by the Bill to the 1945 Act—was that, if there were no petition against an order, it might become law without having any real Parliamentary scrutiny and if it were substantially of a legislative character this matter was of some gravity.

So, as a watch upon the proper use of this procedure, it was resolved by the House in 1962 that the Select Committee on Statutory Instruments should examine all orders subject to this special Parliamentary procedure and to report to the House within what the hon. Gentleman has referred to as the "resolution period"—the period after the order has been laid before Parliament. But in the debate on the resolution at the time the then Joint Parliamentary Secretary to the Ministry of Housing and Local Government said: There still remain some matters which will remain to be looked at in the future. They are referred to in the statement made on 1st August—for example, whether there should be an extension of the period for making Petitions, or for putting down resolutions, and whether petitions of general objection could be more easily sent to a Joint Committee."—[OFFICIAL REPORT, 14th February, 1962; Vol. 653, c. 1456.] As I read the Bill, it purports to do exactly that—to remedy the defects which were seen at that time.

I wish to refer to the present procedure, and to try to fit the proposed Amendments in and then address my comments to them. The 1945 Act provides, first, that no order shall be laid before the House unless certain preliminary acts have been taken—notice given in the London Gazette and the local newspaper of the intended order and, if anyone objects, notice of an inquiry and the holding of a local public inquiry.

These orders frequently affect individual rights and to present a case at the inquiry and to follow it up by a petition in this House is still an expensive matter, even though it is a cheaper form of procedure than by private Bill. I wonder whether the hon. Gentleman has given thought to the extension of the Legal Aid and Advice Scheme to this because, as I have said, it does affect the rights of individuals. Orders for stopping up highways or making special roads may gravely affect individual rights. There are also compulsory purchase orders over common land whch may severely restrict grazing rights and other rights of the individual.

Compulsory purchase orders to work minerals, the prohibition of excavation on a foreshore—these are one or two examples, which I am picking, of matters which have to be done by order of this sort and which may put an individual to considerable expense to defend his rights. It might be well worth considering whether such a person put to that difficulty and expense ought to be assisted by legal aid.

Once these preliminaries have been finished and the order is laid before the House there is, under the 1945 Act, a period of 14 days in which to petition. I entirely agree that this should be extended. I think that 21 days will be found to be sufficient. There is, however, one fault here. There is no power to let in late petitions. If, by any chance, by a delay in the post, or a notice not having been served properly, a petition arrives 22 days after the order has been laid no power on earth can allow that petition to be received by the House and considered eventually by the Committee. This, then, is my second point to the Joint Parliamentary Secretary. First, legal aid; secondly, letting in late petitions. They are let in under the Private Bill procedure of the House. Why should there not be the same discretion to let them in here?

Then the petition is examined by the Lord Chairman of Committees and the Chairman of Ways and Means who decide together whether a petition before them is a petition for amendment or a petition for general objection. They certify that the petition is proper to be received. They are now to be deprived of their right to consider whether or not a petition contains substantial grounds. I am doubtful whether it is right to deprive them of that. The Joint Parliamentary Secretary said that he knew of no case in which they had thrown out a petition on those grounds, but surely there is the possibility of a frivolous petition, which might be disposed of at that stage, and not trouble the House further. So that is my third point—frivolous petitions.

When the order is then reported to the House by the Chairmen it may then be subject to a resolution to annul, a resolution which must be presented to the House, under the 1945 Act as at present, in 14 days. Under the Bill it will be 21 days. I agree, again, that this extension of time will be beneficial. If no resolution to annul is moved and no petitions have come forward, then the order comes into force at the end of the resolution period.

Now with ordinary Statutory Instruments the House has an opportunity of a Prayer to annul those instruments within 40 days of their being laid. For the orders about which we are talking tonight there will now he a period of 21 days after they are laid before they go to the Chairmen.

There will then be a period while the Chairmen are considering these petitions and considering their report back to the House, and there will then be another period of 21 days between the report from the Chairmen to the expiration of the time when a Prayer to annul can be moved. So that there will be ample time, I think, now for the Select Committee on Statutory Instruments to consider them: 21 days, plus some length of time while the Chairmen are considering them, plus another 21 days. I think that this gives plenty of time for the Select Committee to consider an order and for right hon. and hon. Members to see whether they desire to move to annul that order.

The Joint Committee can consider whether to amend the order to give effect to a petition. It cannot consider any other amendments, and here I think that the Bill fails to remedy a defect in the procedure. It has occurred that when the petition and the order are before the Joint Committee desirable amendments have been seen but cannot be made without the Minister bringing in a completely fresh order. Although I agree that the Joint Committee should not be allowed to make substantial amendments of which the petitioners have not had notice, I would have thought that some formula could be found to allow the Joint Committee to make amendments of a minor character.

So, if I may number it, that is my fourth proposal to the hon. Gentleman—amendments to the petitions in the Joint Committee, even if those amendments do more than giving effect to the petition.

When the Joint Committee has reported the order to the House, and the order is laid before the House, it may come into operation on the date of laying the order if it has not been amended. If it has been amended, and if the Minister accepts the amendment, the order comes into operation on the date prescribed, or, of course, the Minister may at that stage withdraw the order altogether, being dissatisfied with the way in which it has been amended in the Joint Committee, or he may submit it in the form of a Bill for confirmation, that Bill being assumed to have reached its Report stage.

It is this procedure of jumping to the Report stage of a Bill, when the subject of it has been considered in the form of an order by a Joint Committee of both Houses, which is of such interest today in discussions on the improvement of the procedure of the House. If, by this Bill, we get this form of procedure right, might it not be used far more extensively, for example, for what I might call "pure" law reform?

It may be extremely advantageous—I am glad that I have the attention of the Solicitor-General—if a Statute were to say that to give effect to a report of the Law Reform Committee the House might use the process of an order subject to special Parliamentary procedure. One might embody the reform in an order, refer the order to a Joint Committee of both Houses; on the Joint Committee's reporting to the House, and there being no objection, let it become law. Upon objection, embody it in a Bill which is assumed to have gone as far as its Report stage before it is brought to the House. Is any such extension of this procedure contemplated? I put that as my fifth point to the hon. Gentleman.

Perhaps this is looking too far over the head of this modest little Bill. But it is a Bill which seeks to improve our procedure in this House, not by reducing the time for discussing legislation, but by making the best use of right hon. and hon. Members' time in those discussions. I would be opposed to any Measure which sought to cut down the opportunity for discussion and full consideration of legislation. But that discussion, as we know, need not all take place on the Floor of the House, and I support a form of procedure which directs the legislation to a selection of hon. Members and those of another place who are well able to deal with the subject to be considered.

As I understand this Bill, it is that form of procedure which it seeks to improve, and my hon. Friends and I wish the Bill well.

10.35 p.m.

Mr. F. Blackburn (Stalybridge and Hyde)

At this late hour I shall not keep the House for more than a minute or two. As one who was actively concerned in all the debates in connection with this Bill in the past few years I would like to add a word of welcome to the minor amendments embodied in the Bill. Some years ago, unless there was a Prayer against a special procedure order from which there was no petition there was no Parliamentary control. There was departmental control but no Parliamentary control. The hon. Member for Crosby (Mr. Graham Page) is right in saying that matters were brought to a head by the Leicester (Special Procedure) Order, 1959, which changed a good many of the past Acts of the Leicester Corporation.

It was a very difficult Bill, and one which no back bencher could possibly understand, because we did not have access to all the Acts which were being repealed or altered. The only way in which we could bring the matter before the House was to pray against the order. That set in motion the idea of a reform of this procedure. Later, the right hon. Member for Hampstead (Mr. Brooke), who was then Minister of Housing and Local Government, brought to the House, after a good deal of prodding, suggestions for an alteration of the procedure.

I had some other suggestions to put forward, which I still think are better than the ones which were accepted. I felt that a better procedure would have been for all these special procedure orders to go not to the Statutory Instruments Committee, but to the Committee on Unopposed Bills, which, I felt, had more expertise and practice in dealing with the kind of problems which were likely to arise. I am not sure whether Erskine May has caught up with the alterations made in 1961, but some of them have now been embodied in the Bill. I welcome them. I think that we could have gone further, but at this hour I do not want to delay the House.

10.38 p.m.

Mr. MacColl

If my hon. Friend the Member for Stalybridge and Hyde (Mr. Blackburn) had been in a carping mood it might have been embarrassing for me—

Mr. Deputy-Speaker (Dr. Horace King)

Order. The hon. Member must have the leave of the House to speak again.

Mr. MacColl

With the leave of the House, Mr. Speaker, I would like to reply to the points which have been made.

My hon. Friend the Member for Stalybridge and Hyde, if he had wanted to draw upon his immense expertise in this matter, could have bowled some difficult balls for me to play. I agree that this is a reasonably agreed change for the better, and if my hon. Friend wants to pursue the other matters of procedure and see what happens to the orders in the House it is possible for him to raise these matters with the Select Committee on Procedure, which keeps these matters under review.

I return to the five points made by the hon. Member for Crosby (Mr. Graham Page). The first concerned legal aid. I would not completely shut my mind to that, but no legal aid is involved in appearing at public inquiries or before administrative tribunals. Therefore there is probably not a case for dealing with this aspect of the procedure without dealing with the others as well. It requires a somewhat wider change than merely providing for legal aid before the Committees of this House, or a Joint Committee. That is a matter which I shall look at.

The second point concerned late petitions. This has been considered, because it was mentioned in the statement, but it was not found possible to make a specific provision in this respect. The approach was by extending the petition period. The main difficulty was that in comparison with the Private Bill procedure, the procedure here generally is intended to be quick. In the hon. Member's own phrase, it is cheaper and speedier legislation; the two things go together. If it is not speedy it often is not cheap. If it is desired to get a decision quickly—and the order is very often timed to come into operation at the beginning of a new year—it might create considerable uncertainties if a late petition came in and the whole proceedings were delayed. That is the view taken by my right hon. Friend.

The third point was about frivolous petitions. I do not think that either the Lord Chairman or the Chairman of Ways and Means will be very sorry that they have lost this duty of looking for frivolous petitions because, as we all know, they have plenty to do. This has, in any event, proved to be an unnecessary formality. if there is any doubt about a petition, let it be sent to the Committee and let the Committee throw it out. Costs can be awarded against a petitioner who has no case for bringing a petition. In general, the desire unnecessarily to spend money in petitioning the House is an unusual form of extravagance. On the whole, it is an expensive performance. The sanction of costs is as good as any.

The next point concerned spontaneous amendments in the Joint Committee—amendments which are not started by a joint petition. The difficulty here is that unless they were, as it were, purely drafting Amendments, we might get more than differences over procedure; we might get differences over principle. I hope that the hon. Member does not feel that I have become a completely besotted bureaucrat after four months, but the duty of preparing what the hon. Member called the local application of a general policy is an executive function to be performed by the Minister. If the House does not approve of what he proposes, it is not for the House to start altering it. It is for the House to send it back by resolution, and then it can start again. More arises here than a matter of differences on procedure. It would involve a different approach to what is being done in this kind of order.

The final question was whether this could not be extended beyond the normal kind of local matters and whether it could not be used for what the hon. Member, with a frankness unexpected of him, called pure law reform. I do not know what he would call impure law reform.

Mr. Graham Page

May I clear up that phrase? I meant law reform which had no political content or no party political content in it.

Mr. MacColl

I followed what the hon. Member said—that he thought that this was perhaps looking too far ahead beyond this modest little Bill. I would say that it is looking too far ahead beyond this modest little Minister. It is not for me to make a statement on behalf of the Government on fundamental changes in our procedure dealing with law reform. If the hon. Member wants to pursue that further I imagine that the Select Committee on Procedure would regard it as a matter which they would want to consider.

I think that those were all the points which were raised in the debate. I therefore hope that the House will give the Bill a Second Reading.

Question put and agreed to.

Bill accordingly read a Second time.

Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).