§ 2.57 p.m.
§ Order of the Day for the House to be put into Committee read.
§ THE LORD CHANCELLOR (LORD JOWITT)
My Lords, I beg to move that this House do resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)264
§ LORD SOULBURY
My Lords, before your Lordships accede to this Motion, I should like to remind you that the Second Reading of the Bill took place only three days after the Bill was first in your Lordships' hands. On that occasion my noble friend Viscount Cranborne protested against the very short time available to your Lordships for the study of the Bill. He suggested that a substantial interval should take place between the Second Reading and the Committee stage, and he also suggested that a slightly more extended debate should take place on the Motion to move the House into Committee. I propose to take advantage of that suggestion, with which the noble Lord opposite was in agreement.
I do not suppose your Lordships found the ten days that have elapsed between the Second Reading and the Committee stage any too long to study the provisions of this extremely complicated and intricate measure and to master it. I do not profess for one moment to have mastered this Bill, but I should like to make one or two observations upon it and then to ask the Lord Chancellor a few questions on the measure. On the Second Reading of the Bill, the Lord Chancellor drew attention- to the alleged intrinsic merits of the Bill, and said that it was substantially the same as the measure presented to another place last March by the Coalition Government or, as I prefer to call it, the National Government. He suggested that as a result of its smooth passage it could be described as a non-controversial matter. I am not much enamoured of the doctrine that Bills that may have been supported by members of the National Government last March or at any other time are thereby immune from criticism by members of that Government for ever afterwards. That is certainly not the theory or the practice of noble Lords opposite who were members of that Government, and I feel that no one who was a member of the National Government should feel himself estopped from amending or, if he wishes, opposing measures many of which may at the time have represented the greatest common multiple of such agreement as was possible in the circumstances that existed.
Nor am I inclined to agree that this Bill is entirely non-controversial. Indeed, I should think that that epithet can 265 seldom be applied to any measures we receive or are likely to receive from the Government opposite. Especially would I deny that epithet to any Bills which are said to be conducive to expediting or simplifying the procedure of Parliament. It is of those Bills that I think in this House we should be particularly suspicious and especially watchful.
The ostensible object of this Bill, as explained to us, was to simplify and to expedite a certain part of our Parliamentary proceedings known as the. Provisional Order procedure. That object is a commendable one, but it is a fact that certain members of His Majesty's Govern-merit have, in the past and to-day, so often given the impression that Parliamentary discussion is a hindrance to them rather than a help, that I feel rather sceptical of these good intentions. It may be the misfortune of His Majesty's Government, but they certainly cannot yet claim to have built up a solid reputation for tenderness and regard for the liberties of the individual or for the authority of Parliament. On the contrary, recent events have shown an absolutely reverse tendency. We have got the Bank of England Bill, in which, thanks to the vigilance of the Opposition in another place, the Government have-been forced to secure the privacy of the individual banking account. Then there is the Building Restrictions Bill, and again one observes that the Government have quite recently been foiled in an attempt to set up an inquisitorial form of inspectorate of a most pernicious character. So much for the individual. As regards Parliament, we have very recently in our memories the Supplies and Services (Transitional Powers) Bill.
It may in the circumstances not be possible for His Majesty's Government to avoid giving the son of impression which I have indicated; it may be inherent in the policy to which they are committed. My own view is that the socialization of a country is bound to place increasing restrictions upon the liberty of the individual and upon the freedom of Parliamentary discussions. If that is so, it therefore becomes all the more our duty most meticulously to examine a proposal of this sort which is designed to simplify and expedite Parliamentary procedure. The proposals, we are told, are designed not only to simplify but to expedite this 266 procedure. The value of Parliamentary discussion is greatly diminished if it becomes precipitate; it is not susceptible to undue compression. Deliberation implies an atmosphere that is deliberate. If the Government wish to save time, well and good, but let them count the cost, for the exchange of individual liberties for legislative celerity may in the long run prove to be a very bad bargain. It has been well said that counsels to which Time has not been called, Time w ill not ratify. No doubt in the Provisional Order procedure as it is at present a good case may be made out, and indeed has been made out, for simplification and time saving. I should be willing to give much more credit to His Majesty's Government for that were it not for the fact that they appear to be feverishly and frantically expediting every mortal thing but the things which really matter, such as demobilization, housing and the production of goods. The impetuous and almost indecent haste with which the Government are proceeding in certain matters almost reminds me of the personage of whom it is written in an Old Book, "He has come down to us having great wrath because he knoweth that he hath but a short time."
On the Second Reading of this Bill the Lord Chancellor gave a very clear exposition of the machinery of the Bill. He said that first of all we had got to have a local inquiry. He went on to say that when the preliminaries had been carried out the Minister had to certify that certain steps have been taken, and that after that the order had to lie on the table for a period of fourteen days during which objections could be presented to it. He continued:At the end of that period the petitions are referred to the Chairmen, that is to say the Lord Chairman in our House and the Chairman of Ways and Means in the Commons, who then have to perform this task; "—your Lordships will note the task they have to perform—they have to differentiate between those petitions which are petitions of general objection and those which are petitions for amendment.I want to ask the Lord Chancellor my first question. What is to be the basis of the distinction between those two categories? What principles can be laid down for the guidance of the Chairmen in determining to which category one or other petition belongs? I ask that for the 267 reason that in the Explanatory Memorandum issued upon this Bill in another place it was said that a new feature of the Bill proposed was that a-distinction should be drawn between objections based on broad grounds of policy and those based on individual interest. In his speech on the Second Reading of the Bill in another place, the Lord President of the Council, Mr. Morrison (speaking from the same brief, I think, as that from which the Lord Chancellor spoke), said as follows:The Lord Chairman and the Chairman of Ways and Means have the duty of examining these petitions and in particular of distinguishing between those which are described as petitions for amendment, that is, those which pray for detail amendment, and petitions of general objection, that is, those which attack the order generally.He went on to endorse the explanation given in the Explanatory Memorandum, and said that the distinction which the Bill drew was between petitions based on broad grounds of policy and petitions based on individual interest. He went on to define petitions of general objection as petitions which raised the whole policy of an order.
When we come to the passage of this Bill through Committee in another place, we encounter a rather remarkable statement made by the Lord Privy Seal, who was piloting the Bill through Committee. He was resisting an Amendment which had been put down to establish a basis of distinction on the lines laid down by the Explanatory Memorandum and by the Lord President of the Council in another place. This is what the Lord Privy Seal said:If these Amendments were accepted then I think the two Chairmen would be placed in an impossible position, with a really impossible job, because they would then have to look at every petition, whether praying for amendment or for withdrawal of the order in order to ascertain whether the ground on which it was based involved questions of national policy. That was never the intention of the Bill, and I hope that the Committee will consider very carefully before they throw such onerous duties which were never intended to be cast on the Chairmen.What does a petition of general objection mean? Surely a petition of general objection must inevitably involve questions of national policy. If it does not, why call it general? "General" distinguishes it from individual, "general" means everybody and everybody means the general public. Questions of national 268 policy are questions which affect the general public. In the view of the Lord Privy Seal it is apparently impossible to make this distinction and the Chairmen upon whom the duties are imposed in another place cannot make it. Therefore I ask the Lord Chancellor if he can say, for the guidance of the Chairmen and the members of the Joint Committee, what is the difference between a petition which is general, a petition which involves everyone, and a petition which involves questions of national policy. If, as one would think, there is no difference, then perhaps he would give some guidance to the Chairmen to help them to carry out a task which the Explanatory Memorandum says is a new feature, which the Lord President imposed upon them, and which the Lord Privy Seal says it is impossible to perform.
May I put the second question? If the Chairmen of this new Joint Committee, the Lord Chairman and the Chairman of Ways and Means, disagree with each other (as they well may in view of the apparent conflict between the two potentates in another place) what happens? How will they settle it? Will they settle it by seniority, as I believe was the practice with the Roman Consuls? Will they settle it by presiding over the Committee on alternate days, following the practice of the Generals in Marlborough's wars? That was not, I believe, a very satisfactory precedent. Perhaps there will be a repetition of the "water party" in Sketches by Boz which some of your Lordships may remember. If I recall it aright, on that occasion two gentlemen decided to hold a party on the river, and for that reason arranged to appoint a committee of ten to make the arrangements and share the expenses. It was decided that each of the gentlemen should appoint five candidates, and that each could black-ball the others' candidates. The result was that every candidate was black-balled, and so there was no committee and no party. I ask the Lord Chancellor to endeavour, if he can, for the guidance of the Chairmen, to establish some principle to meet the dilemma which I have pointed out. I have not quoted these valuable precedents to create alarm and despondency in the minds of the Chairmen, but because there is a real difficulty here, and I want to help the Chairmen to perform a task which has been imposed by one Minister 269 and described by another as impossible and never intended to be performed.
I come now to my third question, The Lord Chancellor has pointed out that this Bit' diners from the Bill prepared by the National Government last March in one respect. The latter Bill was not to be applied to existing Acts of Parliament for a period of live years; and the Lord Chancellor said that realizing that the five-year period was not particularly welcome to your Lordships, the Bill had been amended by dropping it. That is rather a poor solution. In view of the fact that your Lordships do not want Parliament to be fettered or restricted by imposing a five-year limit, and when the existing Acts are protected from five years' retrospective legislation, the Lord Chancellor removes the protection. Whether that protection is justified or not—and for all I know it may be—I should like to know why the Lord Chancellor, when a member of the Coalition Government, supported the five-year protection for existing Acts of Parliament, and now, as a member of anther Government, has altered his opinion.
My fourth and last question is this: Why is there a difference of procedure in this Bill between Scotland and England? I refer to the difference indicated in Clause 10 of the Bill. This matter was raised in another place, but apparently not answered. If it is the intention of the Government to simplify this Bill, the Scottish procedure seems to me a good deal simpler. In what I have said about this Bill I have no desire to be captious or unfairly critical. The Bill has many good points, as I should be the last to deny; but in this proposal, as in so many others, the Government seems to be acting first and thinking afterwards. I know that the object is to save time, and it probably does save time; but I believe that in the long run more time would be saved and better results achieved if the procedure were reversed.
§ 3.14 p.m.
THE ACTING CHAIRMAN OF COMMITTEES (VISCOUNT MERSEY
My Lords, I imagine that your Lordships will expect to hear a few words from me on this matter, as I am Acting Chairman of Committees. You already know the history of the Bill, which the Lord Chancellor has described. It was prepared under the Coalition Government about 270 two years ago, to deal with an acceleration of legislation during the period of reconstruction. The Lord Chancellor has mentioned that it proposed a new type of procedure for these Provisional Order Confirmation Bills. These Bills, like Private Bills, have in practice been entrusted to a great extent to the supervision of the two Chairmen. Every Provisional Order Bill, as your Lordships probably know, undergoes a careful scrutiny in each House, particularly by the two Chairmen—the Chairman of Ways and Means in another place and the Chairman of Committees in this House. That is done in order to ensure a uniform practice according to a fixed Parliamentary code.
The new procedure proposed is that the orders will not come before the Chairman of Ways and Means or the Chairman of Committees, but only the petitions; and the two Chairmen will only have to do with the petitions in the sense indicated by the noble Lord who has just spoken namely, to separate those petitions which are of "general objection" from those which are for "amendment." The normal course now is that an order confirmed by a Provisional Order Bill goes direct to a Select Committee upstairs, if there is any petition against it. If there is no petition against it, it is settled by the Chairman in an Unopposed Committee. Under the proposed procedure, no alterations can be made in an order after it is brought before the House unless it is petitioned against. I understand that even verbal alterations cannot be made.
In order to illustrate what the actual result of the examination of orders by the two Chairmen is, I would quote one year which I have taken at random, the Parliamentary Session 1936–37. In that Session thirty-six Provisional Order Bills were presented to Parliament and became law. Of these, two were opposed in the House of Commons before Select Committees, and one of these was fought again in this House. Of the remaining thirty-four Bills, against which no petitions had been presented, fourteen were amended by one or both Houses. Out of thirty-four unopposed Bills a considerable proportion required some alteration during their passage through Parliament. If these Bills had been orders presented under the present Bill, none of these Amendments 271 would have been included, even the most paltry; and that, I think, is a matter which your Lordships ought to consider. The control which your Lordships exercise through the Chairman of Committees, and which is exercised through the Select Committees upstairs, will to that extent be limited.
There is another side to the matter, the rights of petitioners. Petitioners at present, if they object and put in a petition, can be heard by a Select Committee of each House. The proposal now is that there should be a Joint Committee. Personally, I do not think that that is a very great hardship, although I am not Much enamoured of Joint Committees, which are twice the size of a Select Committee and require quorums from both Houses. I have sat as a member and as Chairman of many Select Committees for many years, and I regard them—and I am sure your Lordships will agree with me—as the very best tribunals of their sort that could be devised. They combine justice arid expediency with dispatch, and doing something twice is not necessarily doing it any better. A very distinguished predecessor of the noble and learned Lord who sits on the Woolsack remarked that iterations are commonly loss of time. If that was so in the seventeenth century, I expect that it is still so to-day. Petitioners will now only be able to have petitions considered after they have been divided into these two categories—"general objection" or "amendment"—and can only get the former considered if a Resolution is passed by either House sending the order to the Joint Committee. It may be extremely difficult for a petitioner to get that done. To get it done in another place is certainly not going to be easy. There is great congestion of work at the present time, and he may not be able to get any individual Member of Parliament to take up his case. Consequently, he may have to come to this House.
I am not sure that your Lordships may not find that you have a good many of these petitions argued on the floor of the House, and that, I think, is not the right place for petitions of this sort to be argued. The Lord Chancellor has described what we know so well, the paraphernalia of graphs, maps and blackboards, and the chartered accountants who could not very 272 well be heard by your Lordships. The result of that might possibly be that the Chairman, when he was examining the petitions to divide them, might feel that injustice was being done to a petitioner and might consider himself obliged to take action in the matter. I feel that that is not the work that ought to be put on the Chairman of Committees in this House, who is supposed to be, and is, an absolutely independent officer of the House. The Bill also gives power to make the procedure retrospective on an Address. I cannot help saying that I hope that your Lordships will hesitate very much before you make such an order without having had some experience of the working of the Bill. I believe that what I have said—though I have not had any opportunity of consulting him in matters of detail—is in general accord with the views of my noble friend Lord Stanmore. He wishes me to assure your Lordships—as I do on my own behalf—that, whatever happens, we shall facilitate, so far as lies in our power, the practice and procedure laid down by the Bill. My Lords, I have always been against reading speeches, and I thought that I might perhaps have eluded the lame foot of Nemesis on this occasion. I hope that I have done so.
§ 3.24 p.m.
§ THE LORD CHANCELLOR
My Lords, perhaps it would be for the convenience of your Lordships if I were now to attempt, quite briefly, to answer points which have been made. May I deal first with the points in the last speech because they are fresh in my memory? The noble Viscount, Lord Mersey, stated, I think, that in the year 1936 out of some thirty-six Provisional Orders which were not opposed, Amendments were made in something like fourteen cases. If you analyse these Amendments you will almost certainly find that they are either small or very highly technical points, or else Amendments inserted in order to dispose of possible objections You agree with your adversary and he says: "I will not oppose you if you will meet me in this way." In that sense it is true, they are not opposed petitions, but they are petitions which would have been opposed if the concession had not been made. The consequence would be to-day that the petition would be put in and the opposition would be able to make itself felt in that way.
273 Lord Mersey's next point was with regard to the difficulty of finding time to raise these matters. In the House of Commons this is the accepted position, and if your case is so bad that you cannot find some one somewhere in that House to take it up and support it, then I do not think it needs very much attention. Finally, Lord Mersey said that this Bill in the future might be retrospective. With very great respect, I differ from him there. We may by affirmative Resolution of both Houses of Parliament apply the provisions of the Bill to orders to be made under Statutes now existing. But if we do so it is just as if we amend one of these Acts. It only becomes active with regard to the future. It is not retrospective in the proper sense of the word. I think, if I may say so, that we should be very unwise promptly to apply this new machinery to each case unless and until we have had a chance to see how it operates, and if it gives satisfaction.
I was reluctant to accept the point about the period of five years. May I say that if I referred to this in a rather lighthearted manner, I am sorry. I was, as a matter of fact, endeavouring to make a little joke there. Now I quite agree with what both noble Lords have said to the effect that it is obviously right before we apply this procedure further than we intend to apply it to-day we should have a fair opportunity of seeing how it works and if it gives general satisfaction.
The noble Lord wanted me to give guidance to the Chairmen as to the basis upon which to proceed in distinguishing between petitions of general objection and petitions of amendment. I should be most reluctant, on the spur of the moment and without notice, to venture to give guidance to trusted officials who are much better able to do this job than I even after I had received instructions. I think that the distinction in broad outline is plain enough. We All recognize the difference between a "Committee point" and a "Second Reading point." We all know the distinction between a point which negatives the whole purpose of the order and a point which though it does not do that asks that the order should be amended in this, that or the other respect. If, on the spur of the moment, I were to try to find an appropriate form of words I would say that an Amendment which, on true 274 construction, negatives the main purpose of the Bill is a petition of general objection—although I distinguish the whole policy of the order (which I think is the right phrase) from national policy without in any way limiting it to the order (which I think is an impossible phrase). I am content if the noble Lord thinks that this is a better phrase to say that an amendment which negatives the whole policy of the order would be to my mine a petition of general objection.
§ LORD SOULBURY
My Lords, the trouble is that guidance has been given in another place and the sign-posts point in opposite directions.
§ THE LORD CHANCELLOR
My Lords, I cannot be responsible for signposts in another place. I can only be responsible for my own sign-posts, and I hope that in this matter my sign-post is relatively clear, and points in the right direction.
Next the noble Lord raised the question as to what is to happen in the event of a difference between the Chairmen. This is typical of our unwritten Constitution. All sorts of difficulties might arise which do riot arise. I will just give you this illustration. In the Scottish Private Bill procedure, which has been in force since 1899, exactly the same difficulty might have arisen the whole time, but it has never once arisen. The reason is that common sense prevailed and these two eminent officers worked out some compromise and did the right thing.
I have dealt with the five years limit. With regard to the difference between Scotland and England, there are many differences between Scotland and England, and many of them, I have no doubt, will remain. The Scotsmen, who have had a better procedure with regard to Private Bills in the past, are rather anxious that the good features of their procedure should be preserved, and we have therefore drafted the Scottish clause to meet with their approval.
§ THE LORD CHANCELLOR
Because we think that the English procedure is equally good. At any rate, we want this procedure. Perhaps in working out this Bill we shall find, which is best. I sug- 275 gest that we might now go into Committee.
§ On Question, Motion agreed to.
§ House in Committee accordingly:
§ [The VISCOUNT MERSEY in the Chair.]
§ Clause 1 agreed to.
§ Clause 2:
§ Preliminary Proceedings.
§ 2.—(1) No order to which this Act applies shall be laid before Parliament until the requirements of the empowering enactment with respect to the publication or service of notices, the consideration of objections, and the holding of inquiries or other proceedings preliminary to the making or confirmation of the order have been complied with, or, where no such requirements are imposed by that enactment, until the requirements of the First Schedule to this Act have been complied with; and after any such requirements as aforesaid have been complied with, notice of the Minister's intention to lay the order before Parliament shall be published in the London Gazette not less than three days before the order is so laid.
§ 3.30 p.m.
§ VISCOUNT LONG moved, in subsection (1), after "and" ["and after any such requirements"], to insert "not less than twenty-eight days." The noble Viscount said: I rise to move the Amendment standing in my name. As the clause in this Bill stands at present, there appears to be no minimum time specified between the various steps to be taken, and in consequence of that it is possible that an order might he made or confirmed so quickly after the preliminary proceedings that there would not be sufficient time for objections to what might be a highly technical question, being properly marshalled, thought out and argued. Furthermore, there is no minimum time specified in Clause 2 between the making or confirming of an order and the date when the notice of the Minister's intention to lay the order before Parliament is to be published, so that notice might easily follow within a few days after the making or confirming of the order. The next step, of course, would be for the order to be laid before Parliament under subsection (1) of Clause and this apparently can be done in the days after the publication of the notice. The only remaining time would then be the period of fourteen days specified in Clause 3, within which a petition may be presented against the order. If this procedure is adopted, it is 276 quite possible that persons objecting or requiring Amendments would have no opportunity of drafting them in a manner which would do justice to their cause.
§ May I call your Lordships' attention especially to the fact that the complicated technical nature of many of the orders which will be covered by the Bill is realized? In these circumstances, justice would not be done and if I may give an example, without adequate time petitions for Amendments might have to be so loosely drafted that they would be considered as petitions of general objection. Under Clauses 3 and 4 of the Bill, Parliament might decide that no steps should be taken on the objection, and the order might thereupon become effective and operate in an unjust manner. I therefore suggest there should be a minimum period of twenty-eight days between the completion of the preliminary proceedings and the time when the notice of the Minister's intention to lay an order before Parliament is to be advertised. This, therefore, is the purpose of my first Amendment. I beg to move.
Page 1, line 22, after ("and") insert ("not less than twenty-eight days")—(Viscount Long.)
§ THE LORD CHANCELLOR
If there had been any doubt that this is a very complicated Bill, I think that the speech we have just heard, if I may say so with the greatest respect, would have revealed it. I am not quite sure that the noble Viscount quite understands the effect of his Amendment. I have the greatest-sympathy with him if he is saying that there must be a considerable lapse of time between the time when the draft order is first promulgated and the time when the person who is affected has the right to put in an objection. At a later stage of this Bill the noble Lord has an Amendment in the Schedule which I am prepared to accept in order to give effect to that position, but what he is doing here is something quite different. He is saying that the Minister is not to be allowed to make an order for twenty-eight days. For twenty-eight days he may go about keeping this order in his head. That does nobody any good at all That is simply delay for delay's sake, and it is an exceedingly bad example of the wrong way in which to get Government Departments to go a little quicker.
277 Perhaps your Lordships will just consider this. In all cases of complicated orders, where the person who has held the inquiry has to draw up his report the report has to be considered, the Minister's officers have to express themselves about it, and finally they have to ask the Minister's opinion, the period would be very much longer than twenty-eight days. In practice the only case in which the Minister could make an order within twenty-eight days would be a perfectly simple case where opposition had probably been withdrawn. But in this case let the Minister make the order as soon as he can. When he has made this draft order then have the time limit so that people may take steps. That is provided for at the present time in this way. This Bill is very complicated and I apologize to your Lordships for having to explain it, but this Bill only applies to four Acts of Parliament—the Water Act, the Town and Country Planning Act, the Scottish Town and Country Planning Act, and the Local Government (Boundary Commission) Act. Each of those Acts, with the exception of the last, the regulations of which are now before the House, provides for this very point.
If the noble Lord will look at paragraph 2 of the First Schedule of the Water Act of 1945, he will see that these twenty-eight clays are there provided for. It says:Applicants for any order to which this Part of the Schedule applies, shall submit to the Minister a draft of the order which they desire him to make and shall publish once at least in each of two successive weeks in one or more local newspapers … and specifying a place in the said area where a copy of the draft order may be inspected at all reasonable hours during a period of twenty-eight days.That is where you want your twenty-eight days—to enable a man to see what it is proposed to do. In those circumstances, have your twenty-eight days by all means. Just as we have provided that in the Water Act, so also will it be found in the Town and Country Planning Act and in the Scottish Town and Country Planning Act that a period of twenty-eight days is provided for. That is the period dealt with in the First Schedule.
But this period of twenty-eight days is no good to anyone. It is no good saying the Minister shall not consider anything for twenty-eight days. What is 278 relevant is that when persons know what is proposed to be done they should have time to look into the matter and consider it. Therefore, I venture to say to the noble Lord that his Amendment is misconceived and his arguments do not bear on the Amendment put down.
§ VISCOUNT LONG
I thank the noble and learned Lord for his reply. May I say that, as far as I am concerned, I find the Bill very difficult to understand, but in view of what the Lord Chancellor has said, I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ VISCOUNT LONG
In view of my withdrawal of the first Amendment, I do not propose to move the next Amendment standing in my name.
§ Clause 2 agreed to.
§ Clauses 3 to 5 agreed to.
§ 3.43 p.m.
§ Clause 6 [Operations of orders]:
§ THE LORD CHANCELLOR
The two Amendments to Clause 6 standing in my name propose the deletion from paragraphs (a) and (b) of the word "standing." This part of the Bill was put in as a result of an Amendment moved by a private Member in another place. He was given the assistance of the Parliamentary draftsman to draft this very difficult Amendment, but at the last moment worse counsels prevailed and he moved a manuscript Amendment including the word "standing," so as you will see the word "standing" comes before the word "committee." Whoever advised him about that was thinking only of the procedure in the other place. The word is quite inappropriate to your Lordships' House because we do not have Standing Committees. The word "Committee" by itself will suit your Lordships' House all right and for this reason I beg to move the Amendment.
Page 5, line 12, leave out ("standing"). line 21, leave out ("standing")—(The Lord Chancellor.)
§ On Question, Amendments agreed to.
§ Clause 6, as amended, agreed to.279
§ Clause 7:
§ (3) The reasonable costs incurred by a local authority in applying for or supporting an order to which this Act applies, or in opposing any such order, including costs incurred in connection with any local inquiry preliminary thereto, shall, to such extent as may be sanctioned by the Minister of Health, be deemed to be expenses properly incurred by the local authority and shall be paid accordingly, and the local authority may borrow for the purpose of defraying such costs.
§ 3.45 p.m.
§ LORD HENLEY, rose to move, at the beginning of subsection (3), to leave out "The reasonable" and insert "No." The noble Lord said: There are standing in my name three Amendments to Clause 7, and I should like to say that the first Amendment, at page 5, line 43, to leave out "The reasonable" and to insert "No", and the third one in line 46, to leave out certain words and insert others, hang together. In the remarks I am making I am considering those and leaving out the second Amendment for the moment—that to leave out the word "reasonable" in line 43.
These Amendments arc put forward at the request of the County Councils' Association who have carefully considered this Bill. The effect of this subsection as it stands is, first of all, to put the Minister of Health in the position now occupied by the Taxing Master under the Parliamentary Costs Acts and consequently restricts the power conferred on local authorities by such recent legislation as Section 256 of the Local Government Act, 1933, which says in subsection (1):
No expenses incurred in the promotion of, or opposition to, a Bill under this Part of this Act being expenses which are liable to be taxed under the Parliamentary Costs Acts, 1847–1879, shall be charged to the funds of a local authority unless they have been so taxed and allowed.
The County Councils' Association are opposed to the Minister of Health being placed in a position which he might use to deter a local authority from applying for, or supporting, or opposing an order. The eventual disallowance of costs incurred could be a strong weapon in muzzling a local authority, and it is particularly objectionable because, whether the opposition be successful or not, it may be carried to great lengths. It is contrary to the elementary principles of justice that the party to decide the reason-
ableness of costs—whether they be properly incurred—may be one of the participants in the proceedings from which they arise. Also, the Association see no reason why the provisions which now apply in relation to expenses incurred in the case of Bills promoted or opposed under the Local Government Acts should not be applied under the Statutory Orders (Special Procedure) Bill which merely substitutes a new procedure with regard to the order instead of by way of a Private Bill. I beg to move.
THE LORD CHAIRMAN
I must alter the sequence of these Amendments. If the words "The reasonable" are carried then the noble Lord's alternative Amendment in line 43 will fall to the ground. The proper way to put it is, I think, to, move in page 5, line 43, to leave out the word "The ". The question therefore 's that the word "The" stands part of the Bill.
Page 5, line 43, leave out ("The") and insert ("No").
§ THE LORD CHANCELLOR
Here, again, it is obvious that the County Councils' Association have completely failed to understand this Bill. Indeed, if I were to concede this Amendment, they would never be able to get any costs of a local inquiry at all. I can imagine nothing more unreasonable than to accept the noble Lord's Amendment, or nothing which the County Councils' Association would more dislike. The long and short of it is that they have failed to realize that under the Local Government Act there are two distinct codes about costs. In the first place there is Section 256, which deals with the expenses of local government authorities in the promotion of or opposition to a Bill. Of course the noble Lord knows that if it is an ordinary case of a Bill there is no question of a local inquiry at all. That is what is dealt with in Section 256. Then there is another section of the Act, Section 285, which deals with the procedure of making Provisional Orders. Where you are making a Provisional Order you are, of course, dealing with a case in which the local authority has a right, under its constitution, to apply for a Provisional Order. There you have the whole code relating to Provisional Orders and, as we would expect, in this code you have the machinery for the costs of the local authority, 281 not only in and about the Provisional Order but also the inquiry which, of course, is the initiation of a Provisional Order.
What we have done here, following well-known precedents, is simply to say that the Provisional Order procedure with regard to costs is the right procedure to adopt and not the Private Bill procedure, in that the former does and the latter does not make any provision or allowance for costs of public inquiries. Therefore, that is what we have done. I venture to think we have obviously done so rightly, and that when what I have said has been read by the local authorities' representatives they will agree that I am right in applying the principles of the Act relating to Provisional Orders to what is, after all, a Provisional Order Bill, and I am right in resisting the temptation to apply the Private Bill machinery to what, after all, is not a Private Bill.
§ VISCOUNT SW1NTON
I am sure the Lord Chancellor is right in saying that an Amendment which would deprive the local authority of any chance of getting costs is the last thing my noble friend desired, but I did think there was substance in the point he raised that, while giving the local authority the right to claim costs, the person who ought to judge the costs should be an independent taxing master, just as the Chairman of Committees here would act in an independent capacity and not, as I understood would be the ease under the procedure as it stands, that the person to decide whether a local authority should have costs, or how much they should have, might be a party to the action—namely, the Ministry. If the Ministry has been defeated in an inquiry by a local authority and the inquiry holds that the Minister has proceeded in an unreasonable way, it does seem to me to be not very reasonable that the Minister who has been held to be in default should be the person to decide whether or not the successful appellants should have costs, or how much they should have.
§ THE LORD CHANCELLOR
May I just answer that point? The noble Viscount knows, no doubt, that that has been the position for very many years. The position is that under Section 285 of the Act of 1933 which, as he may remember, came from a very much earlier Act, the costs which may be charged by a local authority are subject to two calculations: 282 they must be reasonable and their amount must be sanctioned by the Minister of Health. That is right because, after all, the Minister of Health has to protect the public, the ratepayers, and see that their money is not wasted. But there is also machinery which is often not made use of. Under the House of Commons costs Taxation Act, 1879, a Secretary of State, or the Minister of Health, if he is in, any doubt, may ask the taxing officer of the, House to decide for him that portion of the costs which falls within the Private Bills machinery, and that is sometimes done. So if we were to depart from this procedure we should be departing from a very well known procedure which I think has always been satisfactory. The Minister of Health must hold the scales. He has to protect the ratepayer against the local authority and see that justice is done.
§ VISCOUNT SWINTON
I am sure that if the Lord Chancellor says so, we are following a precedent. We have all gone on this primrose path: I am sure I have been guilty of it for the last twenty-five years when I have been a Minister. But I am not at all sure it is a good precedent. Quite frankly, the argument that the Minister has the duty of protecting the ratepayers against the local authority seems to me to be curiously undemocratic. I always thought that county councils and municipalities were elected by their local electors who, if they thought the authorities were not doing very well, would turn them out. Of course, if a local authority is behaving improperly or corruptly the Minister has a general duty to come in and do something about it. I do not want to pursue this point unduly. It may be that we cannot do anything about it. But I certainly do not want it to be taken that we are all assenting to the proposition, and that in these days when such enormous powers are given to Ministers to act, overriding local authorities and taking the place of the ordinary citizens in every walk of life—I do not want it to go on record that I and those for whom I speak at all accept the proposition that the right person to judge as to whether an action has been reasonable, when he has been found in default himself, is the Minister and not the local authority.
I find myself in a. somewhat difficult position, faced with so. 283 many learned opinions, but I do still hold to the view that the Minister is put in a wrong position and that it would be very much preferable that the taxing master should decide the cost in this case. I cannot understand why that is not a possibility, even though it has not been in every case the procedure adopted in these cases in the past. I quite understand the distinction drawn between the Bill and the orders, but, all the same, I do venture still to press my Amendment on the grounds that have been already urged.
§ LORD LLEWELLIN
Might I make one remark on this? Is not the matter slightly changed from what it was when a local authority or some other body was putting forward a Private Bill? Then it might have been quite right for the Minister of Health to have had that overriding power; but now, as I understand it, in most of these cases it will be the Minister of Health or some other Government Department who will be behind the Provisional Order procedure. In that case it seems to me extremely odd that you should leave it in that Minister's hands to say to a local authority who may have opposed his order: "It is quite wrong for you to have done so; therefore I disallow you charging any costs." That, I believe, is the position into Which we might get, and that, no doubt, is the position which the County Councils' Association visualized. I should have hoped that the Lord Chancellor might be able to look at this and see whether there is anything in that point, and if possible put it right at a later stage of this Bill.
§ THE LORD CHANCELLOR
I am always ready to look at anything, but I say quite frankly that I think this is all wrong. We are following here a very well-known procedure which has given complete satisfaction in the past. What I am being asked to do is to apply to these Provisional Orders a procedure which is wholly inapplicable to them and does not cover the ground, and in regard to which there can be no machinery whatever for dealing with the costs of a local inquiry—it simply does not arise. Therefore I will look at it, yet I look at it without leading your Lordships to suppose that I think there is any justification whatever for this suggestion, because I do not. I would ask your Lordships at any rate not to press this Amendment now. I will look 284 at it between now and the next stage, and if I think there is anything in it I will tell your Lordships.
That being the case, I beg leave to withdraw the Amendment. Amendment, by leave, withdrawn.
§ 4.0 p.m.
My next Amendment, to omit the word "reasonable" is of a verbal nature. The word "reasonable" must be considered in conjunction with the words that follow later in the subsection "shall, to such extent as may be sanctioned by the Minister of Health, be deemed to be expenses properly incurred." It is suggested that the subsection as it is now does one of two things: either it enables the Minister of Health to refuse his sanction to the whole or part of costs which ex-hypothesi from the word "reasonable" in the first line are reasonable and therefore involves him in unreasonable action, or it uses the word "reasonable" quite unnecessarily and tautologically.
§ THE LORD CHANCELLOR
I am afraid I cannot possibly accept this. The subsection starts "The reasonable costs." The noble Lord, Lord Henley, wants to substitute "No Costs."
§ THE LORD CHANCELLOR
If I am going to look into the other point, perhaps I might look into this at the same time. I do not know whether there is any objection or not. I suppose the costs would have to be qualified in some way. If you were to incur costs on a most lavish scale, you would not be entitled to them. On the spur of the moment I would not be prepared to agree to the deletion of the word "reasonable," but I will look into the matter and see if the subsection can be allowed to read "the costs" instead of "the reasonable costs."
I do not move. I have already referred to my last Amendment and I shall not now move that.
§ Clause 7 agreed to.
§ Clauses 8 and 9 agreed to.
§ Clause 10:
§ Application to orders extending to Scotland only.
(6) In this section, the expression 'empowering enactment' in relation to any order includes any enactment other than this Act 285 which has the effect of requiring the service of notices in connexion therewith, and for the purposes of subsection (1) of this section a notice shall be sufficient notice of an order if it sets out the purport of the order and specifies a place where copies thereof may be inspected free of charge at all reasonable hours."
§ 4.4 p.m.
§ VISCOUNT STONEHAVEN moved, in subsection (2), in subsection (6) of the substituted Section two, after "inspected," to insert "and supplied." noble Viscount said: I beg to move this Amendment, which is concerned with the convenience of people affected by Statutory Orders. It is perhaps a small point, but I think it would be of benefit that a copy of the order with which they have to coin-ply should be available for those people to take away. It seems a pity that you can only go round and inspect a copy of the order without being able to take away all the information so that you can consider it. I beg to move—
Page 9, line 34, after ("inspected") insert ("and supplied").—(Viscount Stonehaven.)
§ THE LORD CHANCELLOR
I hope the noble Lord understands quite clearly what he is doing. He is putting into tile Scottish Application Clause words which provide that Scotsmen may have a concession which Englishmen do not get—namely, that Scotsmen shall have orders provided to them free o charge, but not Englishmen, who have to pay for them. That really would not do may I point out to the noble Lord that some of these orders are very long and relate to one person in a very small degree. Take, for instance, a compulsory purchase order where you are acquiring a lot of land. You will find a long and complicated order which will have a schedule to it setting out the properties it is proposed to acquire. You look for your name, you see your name and the address ct. your properly. That is all you want to know about it. You know then that the local authority is intending to acquire your property. The rest of the order is of no value to you; you know all you want to know. On the other hand, there may be orders amalgamating a lot of water undertakings where it is necessary that those concerned should be able to study the order closely. The empowering Statutes provide for that, hut they do not provide for the 286 order to be applied free of charge. You have always to pay the reasonable costs, and sometimes the Act defines how you are to assess the reasonable costs. This is the first attempt we have had to see that these things are supplied free of charge. I could not accept this Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 10 agreed to.
§ Remaining clauses agreed to.