HL Deb 01 August 1935 vol 98 cc1043-54

Page 11, line 45, at end insert the following new clause:

Power of Minister to remove restrictions.

(". If upon the application of a highway authority or of the council of any county district the Minister is satisfied that by reason of the provisions of any enactment other than this Act or of any order, scheme, or resolution made or passed under any such enactment, any restrictions in force under Section one or Section two of this Act will be rendered unnecessary as respects any road, the Minister may by order direct that on and after the date on which the order comes into force the restrictions specified in the order shall not apply as respects that road, and those restrictions shall cease to apply accordingly but without prejudice to the power of the highway authority to bring such restrictions again into force by means of a subsequent resolution made and approved in accordance with the provisions of this Act.")


My Lords, I beg to move that the House doth agree with the Commons in the said Amendment. This clause is designed to meet the questions which were raised during the passage of the Bill through your Lordships' House by the noble Lord, Lord Hastings, and by the noble Lord, Lord O'Hagan. Various agreements have been reached by the Private Acts of Surrey, Middlesex, and Essex, and it is desirable to provide machinery to relieve both applicants and councils of the necessity of "going through the motions" a second time in all cases.

Moved, That this House doth agree with the Commons in the said Amendment.—(The Earl of Plymouth.)

VISCOUNT ELIBANK moved, at the end of the Commons Amendment, to insert: (2) Where by any local Act powers are conferred on a highway authority or provisions are enacted similar to the powers and provisions conferred or enacted by Section one (Power to adopt standard widths for roads), Section two (Restriction of ribbon development along frontages of certain roads), and Section thirteen (Power to acquire land for road purposes) of this Act, or any of those sections, and that local Act contains provisions for the protection of any authority, company or person, those protective provisions shall apply in relation to—

  1. (a) the exercise by that highway authority within the area to which the local Act applies of the powers conferred on the highway authority by; or
  2. (b) the operation of the provisions of the said sections of this Act or any of them in like manner as they apply to the exercise of the powers of the highway authority under or the operation of the provisions of the local Act."

The noble Viscount said: My Lords, I should like to endorse what the noble Lord, Lord Hastings, and other noble Lords have said with regard to the unreasonableness of bringing this Bill back to this House with the Commons Amendments at this very late stage in the proceedings of the Session. This Bill was before your Lordships' House months ago. It was considered at very great length and sent down to another place on June 6. It comes back to this House the day before we rise for the Recess, so that no one has the opportunity of considering properly the Commons Amendments, or of moving any further Amendments without being charged with delaying the Bill or, perhaps, killing it altogether. I think that noble Lords who have taken exception to such treatment have done so quite rightly, and I would like to endorse all they have said about it.

With regard to my particular Amendment, it follows very much the same lines as an Amendment which was moved upon the Report stage on my behalf by my noble friend Lord Hastings. That Amendment was designed to provide that agreements made prior to the introduction and passage of this Bill by private individuals, companies or others with county councils, and entered into through Private Acts of Parliament, should be protected under this Bill as it passed through your Lordships' House. The promoters of this Amendment were influenced to a large degree in bringing it forward by the fact that there was already a precedent for such a provision in the Land Drainage Act of 1933. Section 66 of that Act provided for the preservation of existing protection conferred by Local Acts. I do not wish to read through that section, but it did exactly what is desired to be done by this Amendment. Therefore there was a very good precedent for introducing that Amendment.

Not only that, but on the 29th of May—six days before my Amendment was moved by my noble friend Lord Hastings, on the 4th of June—the noble Earl, Lord Plymouth, replying to the noble Earl, Lord Midleton, said this: In reply to the noble Earl, Lord Midleton, I wish to inform him categorically-that the Bill does not involve any abrogation of the Surrey County Council's powers, and the Surrey County Council, in giving or refusing consent under this Bill, will take full account of any agreements made with owners under their Private Act.


May I ask if the same applies to the Essex Act?


Yes, I am sure it does."

With that assurance given by the noble Earl in charge of the Bill, it was quite reasonable that the Amendment should be put down and moved by my noble friend on the Report stage. Before I go any further I may say that this affects quite a large number of important bodies in this country. So far as Essex is concerned it affects a company called the Thames Land Company. There are also interested in this particular Amendment such important bodies as the Port of London Authority, the Lee Conservancy Board, the Grand Union Canal Company and others. Therefore I think that your Lordships will agree that this Amendment was not moved lightly or without great force behind it.

What happened? The Amendment was moved and, after a debate in which it received considerable support from other noble Lords in addition to my noble friend who had moved it, the noble Earl, Lord Plymouth, made this reply: We do not desire in this Bill to go back upon any Parliamentary agreement to give to special interests savings which are really in like case to those inserted under this Bill. We cannot conceive that the County Councils of Surrey, Middlesex or Essex, which have obtained in Private Acts powers analogous to some in the present Bill, would want to set aside agreements made in the exercise of those powers. We are, however, not insensible to the view put forward by the noble Earl, Lord Midleton, that parties who have negotiated agreements with county councils should be spared the necessity of making a series of fresh applications, even though they knew the council would grant them as a matter of routine. I can give an assurance "— I would ask your Lordships to mark these words— that we are willing to give sympathetic co-operation to any suggestion put before us to avoid trouble and duplication of machinery, alike in the interest of landowners and county councils. We hope to have an agreed proposal at any early stage of the consideration of the Bill in another place. Negotiations are already on foot and are being actively pursued. On that assurance I hope that this Amendment will not be pressed because I think it really requires modification and amplification. My noble friend very naturally accepted the assurance and withdrew his Amendment expecting, as I did, that when this Bill came back with Amendments from the Commons there would be inserted a clause giving effect to that assurance.

What do we find? Instead of a clause giving effect to that assurance we find a clause which is open to all sorts of doubts and difficulties and which carries out, I venture to say, in no sense whatsoever the assurance given by the noble Earl. It is true that in the House of Commons the Minister of Transport referred to moral obligations on the part of the county council authorities and so on, but the noble Earl in this House referred similarly to moral obligations, and he agreed at the end of the debate that moral obligations were not sufficient, and that there should be a further clause inserted to give effect to what was provided by the Amendment. I do not want to keep your Lordships at great length, but this is a very important subject. I propose, in order to condense What I have to say as much as possible, to read the reasons why this clause which has been put into the Bill by the Government does not give effect to the assurance or to what was intended by the original Amendment.

I submit from that point of view that the principal facts are these. First, land can only be freed from restrictions on the application of the highway authority or a district council. The highway authority (where it is a county council) is the party with whom the bargain was made and it cannot be compelled to move for the preservation of the bargain if it does not wish to do so. A district council (where it is not the highway authority) is obviously not concerned to defend the rights of a company or a private landowner against the highway authority and, therefore, a district council is not likely to move. Secondly, restrictions can only be removed if the Minister is satisfied that they are "rendered unnecessary" by reason of any enactment. The fact that land is exempted under a Local Act may not be taken as rendering it "unnecessary" that the restrictions imposed by the Bill should apply to it. Thirdly, the clause in no way refers to arrangements in modification of the restrictions imposed by a Local Act which were effected by such agreements and which were referred to by the noble Earl, Lord Midleton, in his speech in this House on May 29.

Fourthly, if an Order is made by the Minister, the highway authority can—I would ask your Lordships to note this—without any notice to the individual landowner concerned, or the company or the authority, whichever it may be, nullify it by the reimposition of the restrictions by a subsequent resolution "made and approved in accordance with the provisions of this Act." When such a subsequent resolution is submitted to the Minister for his approval he may not necessarily be informed of its effect on the particular landowners entitled to relief under the Order proposed to be reversed. Indeed, there is no safeguard in this new clause to that effect at all. Fifthly, the clause does not relate to relief from the liability to compulsory acquisition of land.

I venture to submit that having regard especially to the changes which constantly take place in the personnel and policy of highway authorities, it is not enough to rely upon moral obligations. It is the duty of the Government, by provisions inserted in the Bill, to ensure that what they regard as moral obligations will be complied with. It is with that object that I move my Amendment again this afternoon. My noble friend Lord Phillimore has suggested that I may not divide upon this Amendment. I wish to hear what the Government have to say with regard to it before I decide what I am going to do. I am aware that it would be a very grave act on my part to divide your Lordships' House this afternoon on this Amendment, because I understand there is no quorum, but I venture to say to the noble Earl that I shall expect some reply from the Government which will make good and implement the assurance given by the noble Earl upon the Report stage upon this particular Amendment. I beg to move.

Amendment moved— At end of the said clause insert the said new subsection (2).—(Viscount Elibank.)


My Lords, I need hardly say that I can quite understand the anxiety which the noble Viscount has exhibited in regard to this matter. He has suggested that I have given assurances which I have not implemented. I have read very carefully what I said during the passage of this Bill in your Lordships' House. These are the words I used: I can give an assurance that we are willing to give sympathetic co-operation to any suggestion put before us to avoid trouble and duplication of machinery, alike in the interest of landowners and county councils. I venture to say that the clause to which I am now asking your Lordships to agree does meet that assurance which I then gave. I know that there is room for a difference of opinion on this particular matter, and there may be misunderstanding with regard to exactly what my assurance was intended to refer to, but as far as the words I have read out are concerned I venture to say that the clause is specifically designed to meet that purpose, to avoid trouble and duplication of machinery.

May I be allowed to explain the matter as shortly as I can? This question in all its aspects has been considered most carefully at every stage, during the passage of this Bill through your Lordships' House and during its passage through another place as well. I want to point out that in proposing the Amendment that we have brought forward we have not only left it to the highway authority to make application in regard to this matter but also to an urban or a rural district council as well. Therefore I venture to say that there is good reason for saying that the machinery which is necessary under this Bill would not be gone through all over again in cases where it has already been gone through as the result of a Private Act. There is every reason to think that the necessary application will be made to the Minister. May I remind your Lordships of what happened in your Lordships' House on this particular matter? An Amendment having substantially the same purpose as the present Amendment was moved by the noble Lord, Lord Hastings, at the Report stage. In the course of the discussion the noble Lord, Lord Redesdale, urged your Lordships not to accept it. He pointed out that the effect of the Amendment would be to perpetuate a right acquired by a party in the Essex County Council Bill of 1933, not by any decision of the Committee, but by a private arrangement made with the promoters.

It may well be that in the course of the passage of a Private Bill, some arrangement is made whereby a powerful corporation withdraws its opposition to the Bill on terms that it should be free from the restrictions which the Private Bill proposes to place upon other lands. Any such arrangement, made in order to secure the passage of a Private Bill into law, cannot abridge the unfettered discretion of Parliament in new legislation by way of a Public General Act; and I am advised that the highest constitutional authorities sustain this doctrine. Parliament in the present Bill has decided that the right of any individual to form means of access to the road as and where he may think fit shall be terminated in favour of a system of control by the highway authority for whose consent the individual must apply. Some county councils whose foresight has in the past led them to seek from Parliament similar powers of control, may have found it difficult to get their private legislation through Parliament and may have been constrained in individual cases to sacrifice the general principle in its ideal application in return for the withdrawal of powerful opposition. Parliament is not now altering the Private Act. I want to make that quite clear. What Parliament is doing is to legislate for the country as a whole. If the highway authority is satisfied that the party with whom they made the bargain has a proper and a just case, the highway authority can under this new clause come to the Minister and move hint to lift restrictions off the road concerned. I have tried to explain the position and I hope that in these circumstances the noble Viscount will not press his Amendment.


My Lords, as one who took an active part in this discussion at various stages of the proceedings, I think it is perhaps right that I should say a word or two now. I feel that the first thing I should say is to acknowledge at once that the noble Earl in charge of the Bill quite clearly believes that such undertaking as he gave has been fully implemented. That I have not the least doubt my noble Friend Viscount Elibank would accept without demur. The question is whether he really has succeeded in doing so, as he believes he has succeeded. It occurs to me as being peculiarly unfortunate that in this matter the application has to originate with the highway authority or the county or district council. It would have been implementing the undertaking far more effectively if the corporation interested in the matter had been given the right to make the application itself. If words to that effect could have been inserted I feel confident that the remainder of the clause as drawn in another place and now brought before your Lordships' House would have been accepted by my noble friend.

We are in this great difficulty, that if we were to take upon ourselves the responsibility of amending it in the desired direction so as to give the fullest effect to the undertaking that was unquestionably given in your Lordships' House at an earlier stage, I suppose we should either destroy the Bill altogether or at least defer its passage into an Act of Parliament to the Greek Kalends. In the circumstances I should like to make an appeal to my noble friend Viscount Elibank to realise that the noble Earl in charge of the Bill has gone as far as he has been able to go, and that there can be no question of want of faith resting upon himself at least. Inasmuch as the noble Earl is under the necessity of introducing this new clause to your Lordships in this final form, I hope that my noble friend Viscount Elibank will feel that his case—his very important case—has been sufficiently ventilated to induce him to accept the clause.


My Lords, I should like to make my appeal, not to my noble friend Viscount Elibank, but to my noble friend the Leader of the House. Here is a case where I believe that the House in normal circumstances would insist on this clause being amended in the sense which Viscount Elibank has put forward. If we refrain from amending this clause to-day, the only reason will be that, owing to the way in which this Bill has been thrown at us with the Commons Amendments attached, it would kill the Bill. Now I submit that if we are frequently—as indeed we have been several times within my short memory—reduced to this sort of position, it is doing no good to this House, and ultimately it will be the duty of someone like the noble Viscount, Lord Elibank, to press an Amendment of this kind to a Division—and I am not at all sure that it is not his duty to-day.

Meanwhile, on the particular point at issue, I think it should be made clear that it is not only powerful corporations which came to terms with county councils such as Essex and Surrey, but also that private individuals have entered into a bargain as recently as six months or a year ago, and surely they have every right to expect that that bargain should be honoured. I entirely fail to understand why the power of initiative to bring their case forward is being removed from them. There is a country gentleman, who spends most of his time in public works in Essex, who went so far as to give, free and for nothing, the land along four miles of a main road, at the instigation of the Essex County Council and along the line of co-operation with the Essex County Council. Now why on earth should that gentleman, who has acted in the most patriotic spirit, be debarred from exercising that little piece of initiative which would call the attention of the Ministry to his case? I fail to see that the noble Earl has given us any reason why he should not exercise it. I do not know whether it is possible still to throw a little light on this matter; if so, I should be very grateful.


My Lords, the words which have fallen from my noble friend are not lost on me; but when I tell him that, besides having the honour of leading your Lordships' House to-day, I had the honour some years ago of leading the Senate in Northern Ireland, and that I found exactly the same situation arising there, he will understand that I am beginning to feel that such a situation is inherent in the lives of legislative assemblies which bring up legislation at this late hour of the on Session. I am not quarrelling with the noble Lord far bringing it forward, but I can assure him that it is one of my duties, and that it was one of the chief duties of my predecessor, jealously to guard the rights of this House. I agree that in some cases we might seem to have failed; nevertheless, I do not regret that these representations that have been made to me are made, and I shall go on doing my best to see that legislation is not brought forward at a late hour of the Session, as it is on the present occasion. On this occasion there have been difficulties, of which the noble Lord is probably aware, and I feel that in this case the appeal which the noble Lord has made to the noble Viscount, Lord Elibank, will be accepted. While the noble Viscount may feel that he is aggrieved, my noble friend who sits behind me cannot be charged with a breach of faith in any sense of that term, but there may have been a misunderstanding as to what the clause which was to be brought up in the Commons would bring out. I hope in these circumstances that the noble Viscount will see his way not to press his Amendment.


My Lords, I only wish to say one word with regard to this proposed Amendment, and that is that the passage of this Bill into law at the present time is of the utmost importance. At the same time, those of us who have been concerned with the passage of this Bill through Parliament have foreseen the difficulty which has been already dealt with by various members of your Lordships' House, including my noble friend Viscount Elibank. It is a point of substance, and one to which I ventured in abort two words to call attention during the proceedings on the Bill. I realise what the noble Marquess the Leader of the House has said, and it is good to have the assurance that in his person the principles of sound legislation, so far as this House is concerned, will be contended for, in the interests of everybody in the Blouse and also in the interests of everybody in this country. I agree, however, that the paramount interest at the moment is the passage of this Bill into law, and in these circumstances, though I fully sympathise with the Amendment proposed by my noble friend Viscount Klibank, and am not satisfied by the reply that has been given by the noble Earl, Lord Plymouth, at the same time I venture also to ask the noble Viscount to withdraw the Amendment, having made this protest on behalf of those whose interests at one moment f represented in this House.


My Lords, I naturally accept the noble Earl's assurance that he has as far as possible implemented the assurance given on the Report stage of this Bill in your Lordships' House, and though I cannot accept his statement that this implementation goes anything like as far as certain of my noble friends or myself expected it to go, I believe with my noble friend Lord Hastings that if the words which he has suggested had been inserted at the beginning of that Amendment, that assurance would have been fully implemented. Neither do I like the argument raised by the noble Lord in connection with the speech made by the noble Lord, Lord Redesdale, on the Report stage. According to a very high legal authority, as the noble Earl stated, we are given to understand that if a county council through a Private Act of Parliament enter into an agreement with an individual or a body, they themselves are in the position of overriding it if they do not like it, because that is what this Bill means. I would like to suggest to the noble Earl that that is a very dangerous policy to outline in your Lordships' House, because in this particular case the noble Lord, Lord Redesdale, in referring to it, did not give the whole particulars.

Actually what happened was that apart from withdrawing opposition because of agreement on the terms of the Bill, there was a free gift of land by that particular company to the county council, in order to square off the whole arangement. Well, my Lords, if private people are going to be led into giving free gifts of land to public bodies on the understanding that certain things will be done in the future, and then Parliament is to come forward and say: "Now we are going to relieve you of your obligations under this agreement," I venture to suggest that things will be at a pretty pass. I say this, that if it had not been for the conditions under which these Amendments eerie before the House I should have had no hesitation in pressing the Amendment to a Division, and I should not have accepted the appeal of my noble friends to withdraw it; but in view of the grave consequences that I see would result from that action I propose to respond to the appeal of the Leader of the House and of my noble friends. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

On Question, Motion agreed to.