STATUTORY ORDERS (SPECIAL PROCEDURE) BILL. (Hansard, 6 December 1945)

§ THE LORD CHANCELLOR (LORD JOWITT)
My Lords, I beg to move that this Report be now received. We are going to consider an Amendment in a few minutes' time. There were two points in particular which I promised during the Committee stage to look at to see if I could meet the suggestions made. I indicated at the time that I did not think it was at all likely I should be able to do so. Taking them in the reverse order to which they were moved, one suggestion was that the word "reasonable" should be left out. That would be a retrograde step for the reason that ever since 1875 the word "reasonable" has been included. That alone, is not a reason, but I would point 409 out to your Lordships that, even though the Minister does allow the costs, there is, theoretically, a challenge in the Courts because a large ratepayer who is aggrieved might go to the Courts and say that, although the Minister has authorized the cost, he is prepared to contend it is unreasonable and that it ought not to be authorized. Therefore, the, effect of taking away the word "reasonable" would be to take away the control the Courts have over the Minister. I think it is thoroughly desirable that the Courts should have that control and, therefore, I think it would be misconceived to accept that Amendment.
I have looked into the other Amendment to which I refer, and there, again, I am sure we are right in adhering to the proposal made, because it is possible that the Minister might be unreasonable or dishonourable. He might seek to punish somebody for having done something he is perfectly entitled to do by taking an unreasonable view with regard to costs. That has never happened, so far as I know, and, under our democratic system, if it did happen, I feel sure there are several checks to control it. In the circumstances, I ask your Lordships to adhere to the principle in force for many years without any objection being raised to it, and to say that we are adopting the right course in applying the procedure appropriate to this Bill.

§ VISCOUNT SWINTON
My Lords, I am obliged to the Lord Chancellor for looking into the points. In regard to the word "reasonable," I am bound to say that when the point was raised I took the same view as the Lord Chancellor has now expressed. It seems to me that costs should be reasonable costs, and I do not think that anybody will object to that. I confess I am sorry he could not have conceded the second point. The appeal put forward on behalf of the county councils was not at all based—as I am sure the Lord Chancellor will appreciate—on any idea that a Minister, to whatever Government he belongs, is going to be corrupt or vindictive, or anything of that kind. I admit that we are following here a precedent which has been common form 410 for a great many years. On the other hand, I think the fact that we have followed the precedent for a great many years does not necessarily mean that we should follow it still. I should have thought my noble friends opposite would be the last people to say that we must go on following it for ever. That is a very strange doctrine for the present Government.
The position is, really, that local authorities have been presenting proposals or have been opposing proposals made by other undertakers. In the past, the Minister has been much more in the nature of a judicial authority, or at any rate a counsellor and a supervisor. The position is different to-day as regards modern legislation—the legislation which the present Government are bringing in. There, the initiation rests with the Minister in a great many cases. He is the undertaker, the promoter, and he may, in many cases, be opposed perfectly reasonably by county councils or local authorities. It may well be that, as a result of an inquiry, it would be held that the proposal of a Minister is not a good one and should be thrown out, or amended. I am not going to suggest that where that is done the Minister would be vindictive and say, "I have been beaten in this case and, therefore, I am not going to award you costs, reasonable or not." I do not put it on that ground; I put it on the ground that, personally, I should feel, as a Minister, that I would rather this matter was out of my own hands. Not that I should not give a perfectly honest, reasonable and considered judgment in the matter, but it might be said that one ought in these matters to do not only what is just but what appears to be just, and that would create a greater sense of apparent justice. It would be, I believe, to the advantage of the Minister and to his convenience if the decision as to what costs should he paid rested in independent hands.
I only wanted to say that, because I am not putting it in the least in an offensive way. I accept what the Lord Chancellor said, that he feels this cannot be done, but I would not like to leave it there, because this sort of business is bound to come up again and again. I should like therefore to place on record those considerations in conjunction with any other considerations that he may weigh in this or similar matters.

§ LORD RANKEILLOUR
My Lords, I must apologize to the House for not having been here yesterday, but it was one of those occasions when it was my absolute duty to be elsewhere. I can assure you, however, that I shall not trouble you for many minutes. There arc two points I want to make. First of all, under Clause 3, it appears that the whole question of locus—and those who have been in the House of Commons will follow me perhaps rather more closely than others of your Lordships—is to be settled simply by the two Chairmen of the Houses, without necessarily any hearing from the parties. These questions of locus, which have been dealt with by the Court of Referees in another place, are often extremely difficult, and they require, very often, the presence of counsel for them to be argued. I think the Court of Referees, of which, in virtue of my other office, I was Chairman for many years, did their work extremely well—I am not speaking of the Chairman. We sat and gave a great deal of attention, and necessary attention, to points which very often affected the parties very considerably, and I do think that the rather summary procedure under Clause 3 is undesirable. Also it throws rather more work on the Chairman of Committees in another place than I suggest is desirable. At certain times, the work of the Chairman of Committees in another place is extremely arduous, and, with all deference, the Lord Chairman here is by no means so hard worked. On that account I think the Chairman of Committees in another place ought to have greater assistance.
That is one point; the other is this. It would appear that under Clause 4 no detailed examination of unopposed orders will be possible. Now this would be dealt with in a Provisional Order Bill under the present procedure by the Unopposed Bill Committee. Although Bills might be unopposed, very often there were serious objections lurking in them, if I may say so, which were only brought out on examination by the Unopposed Bills Committee. I remember that on one occasion we had twice to send back a Provisional Order Bill because the representatives of the Departments who came before us simply were incapable of explaining it, and we could not make out really what it was for, or why. We have found in other unopposed 412 Bills certain indiscretions which could only be discovered on very close examination. I have put down an Amendment to Clause 4 for this stage but I do not propose to move it as I am not altogether satisfied with the phrasing of it myself, and of course there will be another opportunity. I do wish, however, seriously to draw the attention of the House to those two points which, if I read the Bill aright —and of course that is not easy with this Bill—do really want further consideration.