HL Deb 31 July 1930 vol 78 cc1149-56

Page 7, line 18, at end insert ("or if either of the parties so requires to the arbitration of a single arbitrator to be appointed in default of agreement by the President of the Institution of Civil Engineers on the application of either party")

EARL DE LA WARR

My Lords, I move that this Amendment be agreed to.

Moved, That this House cloth agree with the Commons in the said Amendment.—(Earl De La Warr.)

LORD DYNEVOR

My Lords, I should like to say one word on this question because it raises the whole matter of the appeal tribunal. If your Lordships will look at the Amendment, at page 7, line 18, you will see it is proposed at the end to insert:— or if either of the parties so requires to the arbitration of a single arbitrator to be appointed in default of agreement by the President of the institution of Civil Engineers on the application of either party. Then it is proposed to leave out lines 19 and 20, which say:— Provided that any person aggrieved by the decision of the Minister may appeal to the appeal tribunal. There are many Amendments on the Paper to do away with the appeal tribunal, which was inserted at the suggestion of my noble friend Lord Bayford and myself. I should like to hear from your Lordships what your opinion is on that question.

Later on, the whole of the clauses containing the appeal tribunal are to be swept away if the Government have their way. I was under the impression that we had come to an agreement in this House on the question of the appeal tribunal. In fact we gave way a little in this House in Committee so that the Government had their Provisional Orders in certain cases where they want them. I certainly understood that would be adhered to in another place. We were, in setting up the appeal tribunal, carrying out the suggestion and the proposals of the Royal Commission on Drainage, which said they wanted such an appeal tribunal, and laid down how it should be formed. We followed their suggestions in the Bill. Now the whole of that appeal tribunal is to go. In certain cases there is to be an arbitration, but I think it is very unsatisfactory that we should be asked to do away with the whole of the tribunal which was more or less agreed, as I understood, when the Bill left your Lordships' House. I should like to hear what the noble Earl has to say.

LORD DANESFORT

My Lords, I so entirely agree with the views of my noble friend who has just spoken that I venture to go one step further than he has done, and move to disagree with the Commons Amendment on line 18, so as to restore this appeal tribunal in this place with a view to restoring it in other places. It certainly came as a considerable surprise to many of us to find that this appeal tribunal recommended by the Royal Commission, and powerfully supported by the National Farmers Union and other important bodies, was to be completely swept away. The tribunal was, by the decision of your Lordships' House, made applicable not only in Clause 6, which is now under consideration, but also in Clause 7. I suppose I should be in order, to save time, in referring to the wide effect which the sweeping away of this tribunal would have. Clause 7, as introduced into your Lordships' House, gave power to the Minister to make very important and far-reaching Orders as to drainage, and that decision of the Minister was to be conclusive. Your Lordships, following the advice of the Royal Commission, very properly said that the Minister's discretion should not be uncontrolled, and that his decision should be subject to an appeal tribunal. So much for Clause 7.

Then there was Clause 12, in some ways even a more important matter, because by Clause 12 the Minister was given power, by his sole discretion, to enforce performance Of their duties by the catchment boards. Your Lordships see what that means. The Minister might say: "Your duty is to spend an immense sum of money upon certain drainage purposes," and as the Bill stood there was no appeal of any sort or kind from the decision of the Minister. Your Lordships, when the Bill was before you, decided that there again there should be an appeal. Now in those three cases that are now under consideration the appeal has been swept away. In the one case—namely, under Clause 6—instead of the appeal to the tribunal there is a permissive appeal to a single arbitrator. Under Clause 7, instead of the appeal to the tribunal there is a most astonishing provision, as it appears to me. The Minister can do exactly what he likes. All he has got to do after making his decision is to make a report to Parliament giving his reasons for the decision. The same process applies in the case of Clause 12. The Minister can do what he likes in both these cases and then he has to make his report.

Let it not be said that the making of that report to Parliament as to the decision of the Minister gives any possible cause for relief to the persons aggrieved or gives them any effective opportunity of correcting the decision of the Minister. Of course it is quite true that if the decision of the Minister was challenged in Parliament and there was a debate on the subject, and if Parliament sitting as a whole were competent to deal with these technical and often exceptionally difficult questions, it is possible, theoretically, that the person aggrieved might get redress from Parliament. But that is really so remote and so practically impossible that it would mean no effective redress at all. Therefore, I venture to urge the Government to restore the clauses of the Bill and to give the persons who are affected, and who consider themselves injuriously affected by the decision of the Minister, that right of appeal to the tribunal which the Commission recommended.

LORD PHILLIMORE

My Lords, should like to ask the noble Earl in charge of the Bill if he is aware that the Chairman of the Parliamentary Committee of the National Farmers Union has represented to the Minister of Agriculture that the farmers would sooner this Bill be dropped than that the appeal clauses inserted by your Lordships' House should be cut out? This Bill, as I understand it, represents an effort by the Government—almost the solitary effort of this Government—to aid agriculture.

EARL DE LA WARR indicated dissent.

L0RD PHILLIMORE

Am I wrong?

EARL DE LA WARR

There was an announcement made in another place to-day.

LORD PHILLIMORE

If it is so, although I do not wish to put the claims of the National Farmers Union too high, the Bill should at least receive some measure of support from the farming community. The support of the farming community depends on the appeal clauses being reinstated. I am going to ask the noble Earl whether the Government's decision in this matter is final, or whether it is not possible to follow the line which the noble Lord below me indicated was the line taken by the Commission and is also the line taken by the farming community and to rein state the appeal clauses in the Bill?

EARL DE LA WARR

My Lords, His Majesty's Government are quite aware of the feelings of some of your Lordships on this subject and also of the feelings of the National Farmers Union, and I think therefore it just as well that, as the noble Lord, Lord Dynevor, suggested, we should have a general discussion on this question on this Amendment. Then, if your Lordships agree, I think we might allow the matter to be settled by whatever decision we come to on it. Your Lordships will remember that the whole of this appeal question was discussed very thoroughly in your Lordships' House when the Bill first came before the House, and it was finally agreed that with regard to questions of major policy, involving Ministerial decisions, the proper course was to proceed by the ordinary Provisional Order procedure, which is at present in force under the existing drainage law, by which various things may be done by Orders by the Minister, which Orders in the case of opposition have to be submitted to Parliament for confirmation.

Orders of this kind follow the ordinary procedure prevailing in Parliament, namely, First and Second Readings, Committee Stage, Report, Third Reading in both Houses. In respect of other questions it will be remembered that the Government were forced to accept an appeal to a specially constituted appeal tribunal, although in one or two isolated cases an appeal was provided to an independent arbitrator. While we are on that, perhaps I might deal with the point mentioned by the noble Lord, Lord Dynevor, when he said that he thought the Government had accepted the appeal tribunal during the Committee stage in your Lordships' House.

LORD DYNEVOR

Accepted the compromise.

EARL DE LA WARR

The compromise? I am afraid that at the moment I have not the actual words I used, but I have read them very carefully since and I did make it quite clear that the appeal tribunal was only accepted as a compromise in your Lordships' House and that I could not commit my right hon. friend as to his course of action in another place. I will have the reference looked up, but on the Committee stage I made it quite clear that I could not commit the Minister in another place. I think if the noble Lord refers to the OFFICIAL REPORT he will find that that is so. When the Bill left another place the Provisional Order procedure, requiring confirmation by Parliament in case of opposition, was provided for in the following clauses: Clause 2, Clause 4 (1) (b), Clause 8, Clause 11, Clause 16 and Clause 40. In the present Bill your Lordships will find the clauses are numbered in the same way. On the other hand, an appeal to the appeal tribunal was provided for when it left us in Clause 6, Clause 7, Clause 12, and Clause 42 (that is Clause 44 in the present Bill). Lastly, in Clause 9 in both Bills the appeal was left to an independent arbitrator to be appointed in default of agreement by the President of the Institution of Civil Engineers.

Now, in approaching this whole question the Government have endeavoured to view the situation as far as possible from the point of view of constitutional practice. With this end in view they came to the conclusion that they could not consent to any action which would deprive Parliament of its proper rights. These can only be safeguarded in the manner indicated—either by requiring Orders to be confirmed by Parliament if they are opposed, or by requiring the Minister to make a report to Parliament or in some way to bring the matter to the attention of Parliament. The general principle, therefore, which has commended itself to us, has been that major questions should be dealt with by Order to be confirmed by Parliament, minor questions of policy should be reported to Parliament, while technical questions should go where possible to an independent technical arbitrator, or, alternatively, either to the Minister or to such arbitrator. This principle was accordingly applied to the Bill as it left your Lordships' House. It will be seen that, in the Bill at that stage, there was a comparatively small number of instances in which an appeal was required to be made to the ad hoc appeal tribunal which was to be constituted under Clause 53 of the Bill as it reached the Commons. Actually, there were only the four cases that have been enumerated.

If we examine the clauses the effect of this will be seen. Let us take Clause 6. It was decided that the question there arising is the decision in connection with the main river, and we considered that this was essentially a matter that should be decided by the Minister himself acting on the advice of his technical advisers. In other words, it was a technical question, but words have now been added providing for an alternative method of appeal to an independent arbitrator, to be appointed, in default of agreement, by the President of the Institution of Civil Engineers. That is an addition to the Bill that has been made to meet your Lordships' point. As regards Clause 7, this is scarcely a question of policy. If your Lordships will look at the Bill, you will see that the question is that of the supervision of internal drainage boards and districts by catchment boards, and the only questions on which disagreement could arise in that matter are questions of policy. Apart from that, the disadvantages of an appeal tribunal in a case likely to arise under this clause are considerable, because it is not unlikely that a drainage authority desiring to appeal under this clause against the action of a catchment board would prefer to appeal to the Minister himself, with whom such a board is in constant contact and with whom their relations will probably have been of a very close nature. It was felt that in this case the appeal should lie to the Minister but, in order to comply with constitutional practice, he is required to lay before Parliament a report giving particulars of any question referred to him under the clause and the reason for his decision.

As regards Clause 12, amendment was made providing that here also the Minister shall lay before Parliament a report setting out any directions he may give and the reasons for which they were given. This again is in the direction of safeguarding the point about which your Lordships are anxious. As regards Clause 42, which is now Clause 44, it was felt that this was a matter of a purely technical nature and could more properly be dealt with by an independent arbitrator, to he appointed, in the event of disagreement, by the President of the Institution of Civil Engineers. In the light of these decisions it became obvious that the prime reason for the constitution of an appeal tribunal had disappeared, and it was therefore unnecessary to provide for such an expensive body, which would really have nothing to do. For these reasons I hope that the noble Lord who has raised this matter will realise that, although the machinery of the appeal tribunal itself has been removed in another place, at the same time this point has been very carefully considered and adequate substitutes, at any rate in some of the cases, have been inserted in the Bill. I hope, therefore, that the noble Lord will decide not to press the point.

LORD BAYFORD

My Lords, as one of those who were responsible for moving the Amendment under which the appeal tribunal was inserted, I should like to say just one word about this question. I must say that I think it is a matter for regret that the Government have not accepted what we certainly understood them to agree to at the time when the matter was before this House. At all events, I think our action has had one good effect. In the Bill as it first came before your Lordships the powers of the Minister were of the most arbitrary description possible and, if it has done nothing else, the insertion of this clause has had the effect of some provision for a check on the decision of the Minister being put into the Bill in every case. The check is not in every case so strong as we on this side of the House would wish, but at all events I think we have to acknowledge that it is better than nothing.

With regard to the actual question of the appeal tribunal, when the provision was struck out in the House of Commons it was proposed by a certain number of members to raise the question again on the Report stage. It was found that the rules of order in the House of Commons prevented their doing so. I have had conversations with those members of the House of Commons who are interested in the subject, and. I did not gather that they showed any anxiety to press for the restoration of the appeal tribunal in your Lordships' House. It is, of course, pretty clear that it would be very difficult for us to do so, for if your Lordships will look at Clause 53, you will see that the last subsection says:— Any such remuneration and any other expenses of the appeal tribunal incurred in the exercise and performance of their power and duties so far as the aforesaid expenses are not met out of the amount recovered by way of fees, shall be defrayed by the Treasury out of moneys provided by Parliament. I think we may fairly assume that, if we were to re-insert that provision, the question of Privilege would be raised in the House of Commons in a fairly emphatic form. Accordingly it does not seem to me that it would he wise to press for the re-insertion of this clause in the present circumstances, much as I regret its having been taken out.

EARL DE LA WARR

My Lords, it is only by your Lordships' consent that I can say another word, but I have found the quotation to which I referred. It is as follows:— At the same time, the matter is in your Lordships' hands, and if your Lordships on this Amendment decree otherwise, then, of course, without in any way committing my right hon. friend the Minister of Agriculture as to his future action— and so on. I thought that I should just like to make that point clear.

On Question, Motion agreed to.