HL Deb 05 May 1949 vol 162 cc354-73

4.5 p.m.

Report stage resumed.

LORD HYLTON

My Lords, the merits of the Amendment we are now considering have been so clearly expressed by the noble and learned Viscount that I think it is clear to your Lordships that some such appeal to the Lands Tribunal should be granted on this question of the assessment of development charges. I know that your Lordships like having examples of how this particular piece of legislation—that is to say, the assessment of development charges—is working today. This is, of course, a completely new piece of legislation, and I think we all have great respect for the method which the Central Land Board have adopted in trying to cope with the enormous duty which has been thrust upon them. Nevertheless, it is perfectly true to say, as my noble and learned friend Lord Simon has said, that the developer himself does not always get the basis of the assessment of the development charge. This is a matter of such great importance that I think I should mention a case to your Lordships, because the development charge, as is well known, falls on all classes of change of user of existing buildings, provided it is not within the same technical class. Therefore, we are not dealing this afternoon with a question which affects a few people, but one which affects the owners of quite small houses and quite small businesses, as well as those with much larger interests.

The case I should like to quote to your Lordships is as follows. There is a lady who owns and manages a small nursing home for elderly persons. This is a medical, and not a surgical, nursing home. She found that she was able to acquire a premises more or less compatible or comparable with the premises she already occupied, but which was more convenient because the stairs were not so steep as those in the house in which the nursing home was established. She proceeded, and events, of course, proved that she proceeded unwisely, to purchase those premises. The sum which was paid was £4,700, and the contract and purchase was completed in September of last year. She then applied, through her solicitors, for the development charge to be assessed. In a few weeks she was told that the development charge for moving the existing nursing home to similar premises would be£1,943. The figures were so staggering—as I am sure many of your Lordships will agree—that the lady then proceeded to ask how this enormous assessment had been arrived at. In this case, but in this case only—because my noble and learned friend has already said that in many cases the district valuers will not disclose the basis of assessment—she was told how it was arrived at, which was as follows.

The valuation was based on the difference in the hypothetical rents of the house as a private residence and as a nursing home. These rents were taken as follows: the rent as a residence was taken at £200 a year, and as a nursing home at £330 a year. All I can say about that is that £330 might possibly be the rent for it for a nursing home, but there is no certainty in the matter, because surely the basis for that sort of calculation would be whether it was possible to make a profit. Well, one person can make a profit and another can lose it; but to say that that is a firm basis is a proposition which I find very difficult to accept. The difference between these two rents, then, was £130 a year, and the basis was a 6 per cent. valuation, which produced £2,158, less a 10 per cent. private risk of £215, which gets us back to the figure of £1,943. Your Lordships will notice that the value of the house was only £4,700. Here we have a development charge of nearly £2,000, which is practically speaking 50 per cent. of the value of the premises, charged on this lady—for what? For moving her nursing home from one house to another.

Now we come to the process that has recently been described in this House as "higgling the market." This was a case of higgling the valuation. The higgling started towards the end of October of last year, and in April of this year the Central Land Board wrote to the solicitors of the lady concerned to say that £1,000 was a reasonable development charge. That was very successful higgling—but it is not really a suitable method to be adopted by the majority of people who have to carry out development, because it shows that enormous variations in valuation can be obtained by higgling. Your Lordships know the results of higgling, because it is well known that every form of "spivery" arises from higgling. That, I think, must be acknowledged and (although I regret it if the word is not a Parliamentary one) there is no doubt that "spivery" does exist. I think your Lordships will appreciate that this higgling is not really a practice that should be condoned.

But that is not quite the end of the story, because, subsequent to this second development charge of £1,000, the Central Land Board intimated to the solicitor that a further reduction might be made in this development charge if the lady were to go to the local planning authority and apply for a limited planning permission—that is to say, a planning permission limited in time—because the present planning permission was unlimited: it was permanent planning. But if she went to the local planning authority and said in effect, "Give me three years or five years or perhaps ten years planning permission," she might get a lower development charge. That, however, is not strictly true, because in paragraph 122 of the Practice Notes of the Central Land Board we find that when a limited permission to develop is given by the planning authority, the development charge to start with is lower; but as soon as the limited period comes to an end, then a fresh development charge will be made. It is perfectly clear. Perhaps your Lordships will allow me to read the effective words: At the expiry of such a period, and that period is a limited planning permission— if it is desired to continue the use, a new D.1. D.1. being the appropriate form must be submitted and a fresh development charge paid. That is perfectly clear, and therefore I think that the last notification from the Central Land Board must have been sent in error.

But your Lordships will observe the length of time that has elapsed. All this started last September or at the beginning of October, and it is now May; and this development charge is still floating about. This lady does not really know what she will ultimately pay. And that is only one case—there are hundreds of others. I think the noble and learned Viscount, in moving this Amendment, raised the point that great discrepancies arose between one development charge and another; and of course that is perfectly true. I will quote only one example, and that is the case of two houses that were added to a commercial college which teaches shorthand, typewriting and other subjects. In this case two houses were purchased for a somewhat larger sum and the figure in question was for two fairly large houses. The commercial college paid £6,300 for them, and they were added to the building. But the development charge in this case was only £80. It seems to me that £80 for a quite large addition to a commercial college is a low charge. I also feel that a development charge of either £2,000 or £1,000 for a nursing home is extortionate. And that, surely, must be an overriding reason why some form of appeal should be allowed to the ordinary citizen. At the present time he is defenceless once the development charge has been finally fixed; there is no appeal. I believe that, this being a form of taxation which has to be paid in a capital sum before the development takes place and before any profits can be made out of which to pay it, it is only just and fair that it should be possible for the figures to be taken to some independent body which, in this case, we know, consists not only of lawyers and others skilled in the law but valuers as well. This kind of case could well be taken to the Lands Tribunal.

4.19 p.m.

THE LORD CHANCELLOR

My Lords, it may be for your convenience if I intervene at an early stage, since we have a great deal of business before us, and it is out of no disrespect to the arguments which have been advanced if I say that I cannot accept this Amendment, or anything like it. This is a small Bill dealing with procedure, and your Lordships are tying such a big brick round the neck of my poor little kitten, that I say at once that, if this Amendment were to be carried, and I had the choice of either having this Bill drowned or having this Amendment, I should drown the Bill. In fact, we are fighting once more the very fight which we had but a short time ago. During the discussions on the Town and Country Planning Act of 1947, your Lordships in this House proposed that there should be an appeal to the War Damage Valuation Appeal Tribunal, and an Amendment to that effect was carried against the Government. In Standing Committee in another place, a similar Amendment was moved; it was there rejected. A similar Amendment was subsequently moved in Committee in this House, and on a Division was carried against the Government. That was on July 4, 1947. I am sorry to say that I then inflicted upon your Lordships a long speech on the topic. The matter went back to another place, and they rejected the Amendment which your Lordships had carried; your Lordships then acquiesced.

Now it is for your Lordships to say whether or not you again desire to carry this precisely similar Amendment. We are quite unable to accept it, and whether, when it goes to another place, your Lordships will accept it being "stricken out" (if I may use the American phrase), I do not know. If not, it is better that this Bill should be drowned, because I firmly believe that the fallacy underlying this Amendment is that you can necessarily get a better decision by having a hearing before an appeal court. When that very great Liberal Lord Chancellor, Lord Selborne, some eighty years ago was discussing the question of the abolition of the double appeal to the House of Lords, his argument used to be this: "Either the House of Lords is better than the Court of Appeal or it is not. If it is better than the Court of Appeal, then do away with the Court of Appeal and go straight to the House of Lords. If it is not better than the Court of Appeal, for heaven's sake do not have an appeal to it." There was a time when double appeal was in fact done away with. I feel that the present Tribunal, presided over by Sir Malcolm Eve, consisting, as it does, of lawyers and surveyors, is the best that we can devise but, if this Appeal Tribunal which is to be constituted is better than the present Tribunal, let us sack the existing Tribunal and have the Appeal Tribunal. If it is not better, then do not have an appeal from the existing Tribunal to the new Tribunal. You would not be better off, but you would have unconscionable delay, and the whole thing would be held up more than it is to-day.

I have had a great many letters about all these matters, but I have not yet come across any case of complaint, except that of delay. I have had many letters about the delay which has been caused in the operation and the functioning of this body, but not one single case of objection as to the conclusion to which they have come. In the vast majority of cases, they have come to a conclusion by agreement. And, when all is said and done, I think that is the best way to come to a conclusion. People are satisfied that there is a fair compromise. Of course, in this case there must be a good deal of discussion. I do not want to go back again to the old arguments, which I advanced before, as reported in Columns 834 to 838 of Hansard, as to what it all means. I then pointed out that it was inevitable in this case that there should be discussion, coming and going, giving and taking, and as the noble Lord who last spoke seems to think that there is sure to be corruption—if that is what "spivery" means—I can imagine no court which is less likely to be corrupt than that presided over by Sir Malcolm Eve. Indeed, I am a little surprised that that suggestion was ever made.

May we consider what the Tribunal have to do? I agree that their task is a difficult one, but I do not think it advances the matter one iota to compare two cases when we do not know all the relevant facts of those two cases. Your Lordships, by affirmative Resolution, passed a Regulation under the Town and Country Planning Act dealing with the development charge. Let us see what the Tribunal have to do, and then ask ourselves why the proposed new Appeal Tribunal should be in a better position than the original Tribunal. The Regulation which we passed stated: The development charge shall be determined so as to secure, so far as may be practicable, that land may be freely and readily bought and sold or otherwise disposed of in the open market at a price neither greater nor less than the value for its existing use. That is a vague aspiration, but it is subject to very wide discretion. I have yet to hear anybody who has been able to define with precision what a development charge is. I do not believe that you can have an appeal of a quasi-judicial nature in regard to something which cannot be altogether defined.

As I told your Lordships on the last occasion, my conception on this point is this. I likened this body to a good landlord, and the noble Marquess, Lord Salisbury, said that he was tired of the fulsome praise which I showered upon the good landlords. As part of their task, I still think that the Tribunal should try to act like good landlords, remembering that they have something to sell. It is true that they have a monopoly. They have the development rights but, like the Crown Lands Commissioners, they have something to sell; and as they are a public body they have to try to dispose of that something which they have to sell in the public interest so as, on the one hand, to get the best prices they can—because this is going to be our return for our £300,000,000—and, on the other, not to impede or prevent the proper and useful development of the land. You must think of the particular area in which the development is sought, and of the nature of the development. You must form some conclusion as to whether that particular development is or is not a desirable development.

The noble and learned Viscount, Lord Simon, said he was inclined to agree that that was not a matter for a judge. I quite agree. I have too much respect for the judges to want to have them mixed up in what is a semi-political matter. That would be disastrous. I really cannot see that there is any evidence that this court which it is desired to establish would be one whit better than the existing body. The existing body make proposals; they have discussions; representatives come and, if the district valuer does not give satisfaction, they can go to the headquarters and see the people there and can complain that the district valuer has neglected this, that or the other. In the vast majority of cases, there has been agreement. Although I have had a great number of complaints about all sorts of matters, as your Lordships may well imagine, I have not had one case where anybody has complained to me about this matter. Therefore, I say, let us leave it to this court. Let us not try to pretend that this is a justiciable matter which is subject to appeal in the ordinary way, because it is not. It is a matter of administration; it is a matter of persons who hold something which they have to sell. They have the exceedingly difficult task of trying to fix in each particular case what is the appropriate development charge; and they do so by means of trial and error.

I have intervened at this stage, because, while I know that, if your Lordships so desire, you are able to insert this Amendment in the Bill, I thought it would be useful if I were to explain our view of the matter. We are not prepared to accept this Amendment. It may be that it will go to another place and they will take the same line as before, and then your Lordships will once more have to consider the position—and you are much better able than I am to judge whether this new Tribunal is desirable. If your Lordships say it is, so be it. But we have fully considered this matter and, I say quite frankly, so disastrous should I regard the effect of having this Appeal Tribunal, which would produce only chaos and delay, that I would far rather take my little procedural Bill and tear it up. That being so, your Lordships will forgive me for intervening at this early stage, and telling you exactly how we feel about this matter. Your Lordships can insert this Amendment if you so desire. There is a risk of errors being made; there is a risk of hardship being done—I accept all those things. But my point is that there is no less risk of all these things if there is an appeal to the other Tribunal, and there is much greater certainty of delay. Therefore, I invite your Lordships not to insert this Amendment.

4.32 p.m.

VISCOUNT SWINTON

My Lords, we are grateful to the noble and learned Lord Chancellor for having intervened at this stage and leaving us in no doubt as to his opinion and the opinion of the Government. I think it would perhaps be convenient if I intervened now to say equally definitely, upon the advice which I and my friends on this Bench would offer to your Lordships, the House will have heard with profound dissatisfaction the speech which the Lord Chancellor has made. I do not in the least mind his putting the ease strongly, but I am bound to say that I have seldom heard a worse argument from a great advocate, because, with great respect to him, he is entirely, I will not say mis-stating the issue, but begging the issue. In a sentence, the argument of the Lord Chancellor is: "You can do as you please, but this subject is res judicata. We had it all out before and your Lordships took a view, another place took a view, and the whole matter was decided."

I submit that it is not in the least res judicata but that a wholly new set of circumstances has arisen. Even supposing we were having second thoughts upon this matter, is that an unreasonable thing to do in a rational and reasonable assembly? When the Regulations carrying out the Bill were produced for approval to this House by the Minister in charge—Lord Henderson, I think it was—he began by saying, "This is quite a different principle from that which we had originally contemplated in the House." The 100 per cent. was, I believe, to be 100 per cent. of charge, instead of 100 per cent. of value. Flow did Lord Henderson justify that? He said, "This is a very difficult situation"—we all agree about that—"and the Government have had second thoughts." If it was right for the Government to come forward with a complete change of procedure in the Regulations from that which they had recommended to the House in the Bill, on the faith of which we were invited to pass the Bill, and to say, "We made a mistake about this matter and we have had second thoughts," then equally, if we think a mistake has been made, if we think an injustice has been done, I say we are entitled to have second thoughts; and I really should have thought we might have been met on that matter in a more reasonable manner.

But it is not only a question of having second thoughts; a wholly new situation has arisen. When the proposal that there should be an Appeal tribunal under Section 70 was previously before your Lordships, the whole structure of the Bill was to the effect that there was to be no appeal under Section 60. But the Government have come forward now with an amending Bill in order to give an appeal under Section 60. If it is right to give an appeal under Section 60, which is certainly no more difficult than this very much complicated matter, why is it illogical, or unreasonable, to give an appeal under Section 70? What is more, we hope, as a reasonable Assembly, to profit by experience. When we were passing the Bill, a good many of us had a number of anxieties as to how it was going to work. It seemed to be a Bill not for developing the estate of the Realm but for stagnating or sterilising the development of the Realm, and I am bound to say that in the light of experience I think our fears were justified. But we have had practical experience now, and really the Lord Chancellor must have what I believe is called a "fan mail"—he receives only the letters from those who approve. After listening to the speech of Lord Hylton to-day, I am surprised that the Lord Chancellor should rise to say, "I have no knowledge of any dissatisfaction over the values that are assessed." He must be almost the only member of your Lordships' House who has not heard of such dissatisfaction.

Then it is said that the claimant gets satisfaction, in that he can go to Sir Trustram Eve if he does not like the way that the officials have done their business. Incidentally, I have not yet heard any answer in the debate to the challenge that we were promised, I think here, certainly in another place, when the Bill was going through, that these district valuers, the deputies of Sir Trustram Eve throughout the country, would give to the claimants, to the taxpayer, the person who is being assessed, all the particulars—that they would give the figures on which they based their calculation; the only thing on which you can do the "higgle" or the "jiggle," the process through which we have to go. It has been asserted to-day—and I have had examples given me from many quarters, in great cities and in the country—that some valuers may give these particulars but others are refusing absolutely to give them. That pledge, however, was given, and there has been no answer to the question why is not effect being given to the undertaking that the figures will be given.

Then it is said: "If you are dissatisfied with the figures of the district valuer—which you are not allowed to see in spite of the promise which was given to Parliament that you should be allowed to see them—you can make an appeal to Sir Trustram Eve." He is a very able man. I am sure he does his best, and we do not want to attack him. The noble and learned Viscount says that he has never heard of anybody being dissatisfied. But the wretched claimant has to go to Sir Trustram Eve who, for all his ability, is the tax collector; he is the man who levies the tax in this matter. I suppose I should not be irreverent or irrelevant in saying that all you can do is to Agree with thine adversary quickly whiles thou art in the way with him. No doubt you settle on the best terms Sir Trustram Eve will give you. What other alternative have you? If you do not settle and do not say "All right, I am content," or "I accept," or "I pass," or whatever is the right formula to express when this judgment has been given you, it does not make any difference, because you get the bill and you must pay it; there is no appeal.

However difficult this question may be, I should have thought there were one or two principles which apply in taxation—and after all, this is taxation, and nothing else. The first principle is that it should not be arbitrary. Here it is entirely arbitrary. Sir Trustram Eve and his assistants, however able and distinguished they may be, are there to assess, to lay down, to acquire in an absolutely arbitrary manner, and the taxpayer has to pay. There is another principle I should have thought was elementary in taxation. There has hitherto always been a right of appeal. I think I am right in saying that when I am assessed to income tax I am entitled to appeal on a principle of taxation. As the noble and learned Viscount, Lord Simon, says, another principle is that of equal treatment. What guarantee is there here of equal treatment? There are certainly no guarantees of equal treatment by these different district valuers. The cases stated—and your Lordships may multiply them from your own experience—show that although there may be the best will in the world, one thing there is not in the assessment of this tax and that is equality of treatment. Nor is there equality of treatment when you get to the top and get an assessment.

Another principle was that when taxation was levied you had certainty in so far as you can have certainty—it cannot be certainty in the sense of complete uniformity, but surely certainty in the principles and method by which the tax is assessed. Indeed, what did the Lord Chancellor himself say in another connection as justifying the Bill? He said—I think I have his exact words—that it was highly desirable that there should be "an authoritative and co-ordinated set of principles." That is what we are asking for in this Amendment—an authoritative and co-ordinated set of principles. We are asking that these principles shall be applied equally and fairly by all officials throughout the country, that these principles shall be laid down by an able, practical and experienced independent Tribunal, a Tribunal which the Lord Chancellor himself says is the right Tribunal to decide under Section 60. The Tribunal, he says, ought to be the rating authority for the whole country, and we have accepted that. We say, in this entirely new set of circumstances, with experience behind us and having regard to the arguments which the Government themselves have advanced for creating this new authority under the Bill, that all logic, all common sense, all justice, lie in giving to this appeal tribunal the powers which this Amendment proposes to give.

4.43 p.m.

LORD LLEWELLIN

My Lords, I have my name down to this Amendment, and although I am not going to repeat the arguments which have already been put forward, I would like to place before your Lordships two sets of facts. I know of a case in which a house was built in Selby, Yorkshire, and a development charge of £144 was assessed upon it. Another house of similar size, a farm house, which was made by the conversion of a barn at Paignton, Devon, had an assessment for development charge of £750. There you have two houses—one at Selby, Yorkshire, assessed for development charge at £144, and a farmhouse made by the conversion of a barn, down in Devon, with development charge assessed at £750. What has to be realised is that this development charge is being levied where the same set of buildings is to be used for different purposes.

I will give your Lordships an instance of how arbitrary these charges may be. As some of your Lordships may know, the Union Club is being turned out of its premises in Carlton House Terrace by a Department of His Majesty's Government. I am not complaining of that, because I believe the whole of Carlton House Terrace is being used for Government offices and it is their property anyway. The Club authorities looked round for a new site. They settled upon one and had almost agreed to purchase two houses, Numbers 33 and 34, Grosvenor Square. The only thing that had to be done was to alter those two private dwelling houses in such a manner as to turn them into a refuge for the members of the Union Club. They went to the Central Land Board—I should say that they cannot alter the frontage of Grosvenor Square or do anything like that—and what do your Lordships think was the assessment made? It was £60,000. Think of it, my Lords, a charge of £60,000 for changing the user of two private houses in Grosvenor Square to fit them for the purposes of a residential and private club!

Let me tell you what happened further, in order to show how arbitrary this figure was. The agents for the Club went to the Central Land Board and argued with their representatives. Almost immediately, the figure was reduced to what I still think is a most excessive figure—namely, £35,000. That was the figure proposed to be charged for using these buildings for the purposes of the club. There is, of course, a considerable difference between the first assessment of £60,000 and the second assessment of £35,000. That is the kind of thing which is being done by this Board which is not a tribunal at all, which never hears any witnesses or anyone's case. It really decides matters behind closed doors. That surely offends all our ideas of British justice. The question of this development value is just as judiciable a matter as is the settlement of rateable value of property. They run into exactly the same category. I suggest that we should get much more satisfaction if we agreed to this Amendment and had someone who could supervise the people who are doing the kind of things to which I have just referred.

4.49 p.m.

LORD BALFOUR OF BURLEIGH

My Lords, before your Lordships go to Division, may I add just one word? I approach this matter, as do many of your Lordships, from the point of view of a person who has always been devoted to the principle of town and country planning. The noble and learned Viscount who sits on the Woolsack told us clearly what, in his view was at stake—he suggested that this might be the end of what he called his "little Bill." The point of view which I would press upon him is that something much greater than that is at stake. I approach this Amendment from the point of view of one who wants to make the Town and Country Planning Act work. What is happening now is that the Town and Country Planning Act is working extremely badly, and it is distressing to those of us who have always advocated a sound measure of town and country planning to find that this Act of 1947 is, in the opinion of many of us, really giving disastrous results. I was much relieved to hear the noble Lord, Lord Llewellin, give figures of rather larger size than were given in the previously cited examples. Those previously cited examples were almost small in scale. I do not mean by that that they were not of prime importance to the unfortunate people concerned: they certainly were. But that sort of thing is going on up and down the country.

The noble Lord, Lord Llewellin, introduced figures of a more substantial character, but figures which are by no

means large in the scale of values which are being considered in connection with development value to-day. There are sites the development of which is under consideration at the moment in the City of London and in the West End—the great trading parts of London—in relation to which literally hundreds of thousands of pounds of development charge are involved. The present arrangement is profoundly unsatisfactory. I am not going over the ground again, but we think that the district valuers, admirable as they are, are not always placed in a very easy position, and it is wrong that the final decision should rest with those responsible for levying the charge. I wish to make this plea to the noble and learned Viscount the Lord Chancellor. This change is really essential if the Town and Country Planning Act is to be made to work. Even if we make this change, I will not guarantee that the Act will be successful, because I think it will probably need amendment in other respects; but without this change it has not the remotest chance of being a success. Consequently, I beg the noble and learned Viscount not to close the door completely. In the circumstances, we are entitled to ask the Government to give this matter further consideration.

On Question, Whether the said new clause shall be there inserted?

Their Lordships divided: Contents, 68; Not-contents, 22.

CONTENTS
Rutland, D. Monsell, V. Hawke, L.
Portman, V. Hindlip, L.
Cholmondeley, M. Simon, V. Hylton, L.
Salisbury, M. Swinton, V. Kenilworth, L.
Willingdon, M. Trenchard, V. Llewellin, L.
Mancroft, L.
Airlie, E. Aberdare, L. Meston, L.
Bathurst, E. Ailwyn, L. Monk Bretton, L.
Buckinghamshire, E. Amherst of Hackney, L. Montagu of Beaulieu, L.
De La Warr, E. Balfour of Burleigh, L. O'Hagan, L.
Fortescue, E. [Teller.] Blackford, L. Polwarth, L.
Graham, E. (D. Montrose.) Boyle, L. (E. Cork and Orrery) Roche, L.
Iddesleigh, E. Carrington, L. Rochester, L.
Lindsay, E. Cherwell, L. Rockley, L.
Munster, E. Clanwilliam, L. (E. Clanwilliam.) St. Just, L.
Onslow, E. Clwyd, L. Sempill, L.
Clydesmuir, L. Soulbury, L.
Bridgeman, V. Cranworth, L. Strathcona and Mount Royal, L.
Buckmaster, V. Digby, L.
Cecil of Chelwood, V. Gage, L. (V. Gage.) Teviot, L.
Chaplin, V. Gifford, L. Teynham, L.
Falmouth, V. Grantley, L. Tweedsmuir, L.
Hailsham, V. Hankey, L. Wardington, L.
Long, V. Hatherton, L. [Teller.] Wolverton, L.
Maugham, V.
NOT-CONTENTS
Jowitt, V. (L. Chancellor) Ammon, L. Lucas of Chilworth, L. [Teller.]
Amwell, L. Marley, L.
Addison, V. (L. Privy Seal.) Chorley, L. [Teller.] Morrison, L.
Crook, L. Pakenham, L
Huntingdon, E. Darwen, L. Pethick-Lawrence, L.
Henderson, L. Shepherd, L.
St. Davids, V. Holden, L. Strabolgi, L.
Stansgate, V. Kershaw, L. Williams, L.
Winster, L,

On Question, Amendment agreed to.

Resolved in the Affirmative, and Amendment agreed to accordingly.

4.59 p.m.

Clause 4:

Power to add to jurisdiction of Lands Tribunal

(7) In this section the expression "statutory tribunal" means any Government department, authority or person entrusted with the judicial determination as arbitrator or otherwise of questions arising under an Act of Parliament, except that the expression does not include—

LORD CLYDESMUIR moved to add to subsection (7): (c) in Scotland the sheriff in any case where in any private Act of Parliament he is nominated as being the person by whom any question shall be determined in default of agreement between the parties. The noble Lord said: My Lords, this is an Amendment which will not endanger the life of what the noble and learned Viscount the Lord Chancellor has called "an innocent kitten." Its intention is to clear up a point which arose on the Second Reading of the Bill. It is the practice in Soctland, under a large number of private Acts, for the Parties to select the sheriff to decide the dispute. There seems no reason why this practice should be discontinued. It seems possible that under Clause 4 of the Bill the Secretary of State could decide to replace the sheriff by the Tribunal set up under the Bill. I may not be right in this assumption, but I move this Amendment in order that the point may be cleared up. The sheriff, as your Lordships know, is a useful and esteemed functionary in Scotland, and it would be a pity to deny the right of parties involved in disputes to choose the sheriff to decide such cases. I beg to move.

Amendment moved— Page 8, line 46, at end insert the said paragraph.—(Lord Clydesmuir.)

LORD MORRISON

My Lords, this is a similar point to that raised before. On this occasion the noble Lord has put his Amendment in the right place. As I have already said, subsection (7) of Clause 4 defines a statutory tribunal as any Government Department, authority or person acting as arbiter, but excluding any of the ordinary courts of law, or a tribunal consisting of one or more judges of any of these courts. I have spent some time in taking expert advice on this matter, and am advised that there can be no doubt at all that these words clearly exclude the sheriff and make the proposed Amendment unnecessary.

LORD CLYDESMUIR

My Lords, I can speak again only with the leave of the House. As I understand the view expressed by the noble Lord, taken on legal advice, it is that the sheriff can still properly be selected by parties to decide such disputes. If that is so, I am content.

LORD MORRISON

Yes.

LORD CLYDESMUIER

Then I beg leave to withdraw the Amendment.

Amendment, by lease, withdrawn.

Clause 10:

Short title, commencement and repeal

(2) This Act shall come into force on such day as His Majesty may by Order in Council appoint, and different days may be appointed for Scotland and for the remainder of the United Kingdom.

(3) The enactments specified in the Second Schedule to this Act are hereby repealed to the extent specified in the third column of that Schedule:

THE LORD CHANCELLOR moved, at the commencement of subsection (2) to insert: "Sections one to four of." The noble and learned Viscount said: My Lords, I think it will be convenient that in explaining this Amendment to your Lordships I should also mention the two following Amendments, at line 21 and line 23. The point is quite a simple one. The Bill does two things which are quite independent of the main purpose of the Bill, which is to set up the Lands Tribunal in place of the official arbitrators. The first thing, which is done by subsections (4), (11) and (12) of Clause 3, is to enable points of law to be taken, if necessary, right up to the House of Lords, whereas at present, under Section 6 of the 1919 Act, they go only to the High Court or the Court of Session, whose decision is final. The reason for my desire to make this alteration is this. If there is a divergence of view between the two decisions, it is only by going to the House of Lords that a reconciliation between the view of the Scottish Courts and the view of the English courts can be obtained.

The second thing, which is done by Clause 5, is to effect a minor procedural change about the withdrawal of notices to treat. Both these changes could and should be made, even if the official arbitrator system were continuing undisturbed. But, as the Bill is drafted, these changes come into force only on the appointed day which brings the Lands Tribunal system into being. It would not matter very much in England if the appointed day were to be very shortly after the Bill had obtained Royal Assent, but it now looks as if some gap will be inevitable, and some important test case, on which the parties ought to be able to have the most authoritative judgment, may arise at any time. The point is more important in Scotland where, as I said on the previous occasion, the appointed day will not be for some time after the Royal Assent has been given. It would clearly be wrong if appeal to the House of Lords were available in England but not in Scotland.

The effect of these Amendments is to bring these two changes into effect in both countries on Royal Assent, instead of on the appointed days respectively fixed for England and Wales and for Scotland. Your Lordships see that the first Amendment provides that Clauses 1 to 4, instead of the whole Bill, shall come into force on the appointed day. The result is that the remaining clauses come into force on Royal Assent. Your Lordships will notice that Clauses 6 to 9 are, in any case, of no effect until Clauses 1 to 4 are in operation; so the only clauses really affected by the Amendment are Clauses 5 and 10. The purpose of the first Amendment is to bring Clause 5 into operation on Royal Assent. In so far as it also brings into operation on Royal Assent the repeals provided by Clause 10 (3) it goes too far, and this is put right by the third Amendment, at line 23. I beg to move.

Amendment moved— Page 11, line 18, at beginning insert ("Sections one to four of").—(The Lord Chancellor.)

THE LORD CHANCELLOR moved, after subsection (2) to insert: (3) References in this Act to the commencement thereof refer, in relation to any part of the United Kingdom, to the beginning of the day so appointed for that part, and the following provisions shall have effect as respects proceedings begun before the commencement of this Act, namely:— (a) subsection (2) of section six of the Acquisition of Land Act shall not apply to any decision of the High Court or of either division of the Court of Session giving the opinion of that court or division on a case stated under that section except a decision given before the date of the passing of this Act, and there shall be the same right of appeal against any such decision given on or after that date as against the final decision of an action in that court or division: Provided that an appeal to the House of Lords from a decision of a division of the Court of Session shall lie only with the leave of the division; (b) section five of this Act shall have effect with the modifications necessary to adapt it to proceedings before an official arbitrator instead of the Lands Tribunal.

The noble and learned Viscount said: My Lords, this Amendment provides in paragraph (a) that between the date of Royal Assent and the appointed day, for each country respectively, cases on points of law stated by the official arbitrator for the opinion of the High Court (or, in Scotland, by the official arbiter for the opinion of the Court of Session) can be taken on appeal right up to the House of Lords, whereas under Section 6 (2) of the 1919 Act the decision of the High Court (or Court of Session) is at present final. The new provision applies to cases already pending at Royal Assent, but on which the High Court (or Court of Session) have not yet given their decision. Thus, in England, cases may go during this interim period from the official arbitrator to the High Court, and thence to the Court of Appeal and the House of Lords. After the appointed day the Lands Tribunal take the place of the official arbitrator, and the High Court drops out.

For Scotland it is necessary to provide specifically that the leave of the Court of Session is necessary for an appeal to the House of Lords, because otherwise there would be an appeal as of right—which is why the same provision is made in Clause 3 (12) (a). The Amendment says, by implication, that in England no leave is needed for appeal from the High Court to the Court of Appeal. But for appeal from the Court of Appeal to the House of Lords, leave either of the Court of Appeal or House of Lords is required, by virtue of the Administration of Justice (Appeals) Act, 1934, and nothing needs saying specifically. I beg to move.

Amendment moved— Page 11, line 21, at end insert the said subsection.—(The Lord Chancellor.)

THE LORD CHANCELLOR

My Lords, the next Amendment, as I have already explained, provides merely that the repeals consequential on the changes to be introduced on the appointed day are to be effective as from the appointed day: otherwise, the effect of the Amendment in line 18 would be to make them effective as from Royal Assent. I beg to move.

Amendment moved— Page 11, line 23, after ("repealed") insert ("as from the commencement of this Act").—(The Lord Chancellor.)

Second Schedule [Repeals]:

THE LORD CHANCELLOR

My Lords, this Amendment is consequential on the Amendment to Clause 1, at page 2, line 23, I beg to move.

Amendment moved—

Page 15, line 60, at end insert—

("11 & 12 Geo. 6. c. 26. The Local Government Act, 1948. Subsections (2), (3) (4) of section forty-nine; in subsection (1) the words "or any county court" and the words "or county court" and in subsection (3) the words "or county court"; subsection (2) of section sixty-two; in subsection (2) of section sixty-seven the words "or as the judge on any appeal to a county court": subsection (3) of section eighty-seven.")

—(The Lord Chancellor.)