HL Deb 29 April 1958 vol 208 cc1088-118

2.49 p.m.

Order of the Day for the House to be again in Committee read.

Moved, That the House do now resolve itself into Committee.—(Viscount Hailsham.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD MERTHYR in the Chair]

LORD SILKIN moved, after Clause 6, to insert the following new clause:

Costs . Where any person whose legal rights may be interfered with or altered by the order or determination of any tribunal mentioned in the First Schedule to this Act or by the order or determination of an appropriate authority after an inquiry or hearing as referred to in subsection (2) of section three of this Act the tribunal or person conducting such inquiry or hearing as the case may be may award to such person the costs reasonably incurred by him including legal costs in making his representations.

The noble Lord said: I beg to move the new clause as set out on the Marshalled List. The object of this new clause is to provide that in certain proper cases a person who appears before a tribunal or inquiry on appeal should be awarded his legal costs and his expenses. At the present time, in some cases it is open to a tribunal or an inquiry to award costs, but generally speaking no costs are awarded either way. I believe that where a person has made an appeal which is regarded as frivolous and vexatious it is open to the Minister to award costs against him, though that is done very rarely but I have never in my experience known of costs being awarded to an appellant even when he has been successful. The Committee will be aware of many cases where it is necessary for an owner of land or a person who is aggrieved (I am speaking at the moment of inquiries) to appeal, at considerable expense, against a decision of a local authority, for one cannot appear before an inspector and produce evidence effectively without getting legal advice and assistance.

My noble friend Lord Milner of Leeds referred the other day to my statement that a person might be better off appearing personally before a tribunal and that there might well be cases where an appellant is able to get the sympathy and the support of the tribunal in helping him to conduct his case. But in an appeal before an inspector, and certainly where evidence has to be called, it is practically essential to have counsel; and people are put to considerable expense in making these appeals.

The object of my Amendment is to provide that where a person has been put to such expense and it turns out that he has been justified and his appeal is allowed, he should be awarded costs. I do not want to go so far as to say that costs should always necessarily follow the event, for there may be a "50–50" case where a local authority may have been fully justified in their decision and the appellant fully justified in appealing. Where the local authority has acted in perfect good faith and reasonably, I would hesitate to say that merely because the appellant has been successful he should necessarily be awarded the whole of his costs; but he might be awarded some.

There are cases where even local authorities act unreasonably and an appellant is put to expense and trouble in appealing against a decision which manifestly ought never to have been made. I believe that in a case of that kind there ought to be provision for the appellant to get his costs. I want to be perfectly frank in this matter. If one accepts that principle there may be cases the other way. An appellant may be appealing without any ground whatever and acting unreasonably. I suppose on balance appellants act unreasonably more frequently than local authorities do, judging at any rate by the weight of the decisions that are given in favour of local authorities and against appellants.

I believe that in cases where an appellant has appealed unreasonably—and I would apply much the same test—it should be open to the Minister to award costs against the appellant in favour of the local authority. There, again, I would not do that in every case. The appellant may be appealing in good faith and quite reasonably, and the decision against which he is appealing may have been one which involved a question of policy of which perhaps he had no opportunity of knowing. It may be that if he had known of the policy before he appealed he might not have done so.

I know that there is to be provision for an appellant to find out the policy, but where he would not know that at the time when he appeals, he may appeal in perfectly good faith, but unsuccessfully. I would not suggest that in such a case costs should be awarded against him. But where the appellant has really acted irresponsibly and frivolously in making an appeal, I see no reason why it should not be open to the appropriate Minister to award costs against that appellant. I am not suggesting that that is in my Amendment and I do not suppose for a moment that this Amendment is going to be accepted; because having read the Report of the Administrative Tribunals and Inquiries Committee, I see that they are really recommending that the whole matter of costs should go to the Council which they propose should be established and which it is the object of this Bill to set up. But there should be some recommendation to this Council that costs, generally speaking, should be awarded in cases where the appellant has been successful.

I hope that it will be open to the noble and learned Viscount who is to reply to say that he is in general sympathy with the proposal contained in this Amendment and that this will be submitted to the Council which is to be set up, with a direction that they should consider how it can best be implemented; and that, although the Franks Committee did not suggest it, it may be possible for an appellant to be awarded costs. I would suggest that the Council should also consider the circumstances under which an appellant, as well as the local authority, should be required to pay costs.

There are other inquiries. The Minister may himself order an inquiry where he wishes to acquire land for this own particular purposes. I admit that in such cases it would be a little difficult for the Minister to recommend that he himself should have to pay costs, even where the appellant had been successful. A Minister never acts unreasonably or irresponsibly. But there have been such cases and this Council that will be set up might find ways and means even of providing that, in such cases, where appropriate, the Minister should be required to pay the costs of an appeal. I hope that the noble and learned Viscount will see his way to accepting, broadly, the theme of my remarks. If he does so, then having moved this Amendment I shall be perfectly happy to withdraw it.

Amendment moved— Insert the following new clause— (". Where any person whose legal rights may be interfered with or altered by the order or determination of any tribunal mentioned in the First Schedule to this Act or by the order or determination of an appropriate authority after an inquiry or hearing as referred to in subsection (2) of section three of this Act the tribunal or person conducting such inquiry or hearing as the case may be may award to such person the costs reasonably incurred by him including legal costs in making his representations.")—(Lord Silkin.)


It might be for the convenience of the noble and learned Viscount who is to reply for Her Majesty's Government if I amplified in another direction the words of my noble friend Lord Silkin. The real object of this Amendment is to bring equity into the administration of justice where we have tribunals or inquiries, both of which recommend to Ministers and sit as quasi-judicial bodies upon the rights of the individual. I want to ask the noble Viscount what he thinks at the present time about the objector who has a perfectly good case but who cannot afford the very high legal costs that are involved in appearing, not only before tribunals but also before these administrative inquiries and public inquiries in which I am more interested. Perhaps I can illustrate what I have in mind by citing two cases to the noble Viscount.

On a previous Amendment I quoted the words of the noble Lord, Lord Salter, who had referred to Crichel Down. If the bureaucracy had not run into an individual, as Lord Salter so rightly said, with the resources and the determination—the resources, mark you, my Lords, and the determination—the Franks Committee might never have been set up. Could that individual get costs? He did not want them.


He actually got them.


May I ask the noble Viscount to repeat what he said.


He actually got them—


I am very glad to hear it.


—I believe.


The second case to which I will turn is the case of Bingham Melcombe, which may interest the noble Lord, Lord Mills, who I am so glad has shown this House his usual courtesy in appearing on the Front Bench when his Ministry itself might come in for some criticism. The valley of Bingham Melcombe was going to be defiled by a row of pylons, and someone took upon himself the cost, briefing learned counsel, of an appeal, over the heads of the planning authority and right up to the Minister himself; and let me put it down to the Minister's everlasting credit that he reversed the decision and a great piece of natural beauty in Dorset was saved. But could that matter have been carried to the Minister, and could justice have been done had it not been for the fact that a wealthy man put his hand deeply into his own pocket?

I agree with my noble friend that perhaps some objections are made irresponsibly, but I think that that is one of the risks Executives have to run. After all, I do not think we need trouble too much about justice to the Executive: they can always look after themselves. We are far more concerned with justice to the individual, who so often cannot look after himself, as my noble friend said, without incurring very heavy legal costs to have his case argued. There are plenty of cases on record where those who have spent not only the taxpayers' money but also the ratepayers' money can go on and on, bringing these cases until they reduce the ordinary individual to impotence. I hope that the noble Viscount will give us some encouragement on this Amendment. There is one question to which I hope he will reply. I hope that I live to see the day when an inspector, who at the present time—that is, until a previous Amendment is either accepted or rejected—is the servant of the Minister, awards costs against the Minister. That indeed, I think, would be a very illuminating position. This Amendment provides that costs shall be awarded by the inspector holding the inquiry. I do not agree with my noble friend (I hope he will forgive my saying so) in saying that all Ministers are like Caesar's wife, beyond suspicion. Ministers have—


Caesar's wife was not beyond suspicion; that was why she was divorced.


I beg the noble Viscount's pardon.


I was reminding the noble Lord that Caesar's wife was not beyond suspicion, and that was why she was divorced.


Well, it is a popular conception.


A misconception.


The noble Viscount may have a more intimate knowledge of Caesar's wife than I have.


She was before my time.


That is the popular conception, at least. My noble friend said that Ministers never did anything wrong. The whole history of the law of this country illustrates that Ministers do a great many things that are wrong, but of course, never have to accept responsibility for so doing. So I think that the noble Viscount will be able to accept at least the spirit of this Amendment for giving costs to objectors who have a good case for justice. And I hope he will also assure the noble and learned Viscount the Lord Chancellor, who I am sure we are all so sorry cannot be here, that this is another argument as to why there should be an independent inspector presiding over these public inquiries, so that he can, without fear or favour, award costs to the appellant who is deserving of them.


My Lords, I know that we are all very indebted to the noble Lords who have moved and supported this Amendment. But as I listened to the arguments, so well presented by both of them, I thought that, although I think they led in divergent directions, both were losing sight of one fact that I have always tried to keep in the forefront of any arguments I have presented to this Committee: that the tribunals and inquiries with which this Bill is concerned are of a very diverse nature. The noble Lord who has just spoken referred to the clash of interests between the subject and the Executive. But, of course, in a great number of these inquiries, that clash of interest does not arise—quite the reverse. The noble Lord who moved the Amendment, I think a little more realistically, showed by his language that in the forefront of his imagination was the case where, so far from there being a clash of interest between the Executive and the subject, there was a clash of interests between the subject and a local authority, with the Executive, if anything, in the position of a judge. The use of the words "appellant and local authority" occurred, I should think, fully half a dozen times in the course of his speech—and quite rightly. I make no complaint, because that is a most important kind of inquiry. But a reference to the First Schedule to the Act shows quite clearly that in this Bill we are concerned with a very wide range of inquiries.

I think of the Lands Tribunal, where neither the Executive nor the local authority is the principal party (that will be found in the Schedule to the Act) and where the dispute is between party and party. I think of the conscientious objectors' tribunal, where I think the clash is, in a sense, between the Executive and the subject, but where a different range of considerations, both as to legal representation and the like, apply from those applicable to the kind of inquiry which both noble Lords had in mind. I think of the General Commissioners for Income Tax. They have for many years done justice between subject and fiscal authorities without a provision on costs. I should like to remind the Committee, therefore, of what the Franks Committee really recommended about this matter, because I think that on further consideration the Committee might come to the conclusion, like the Government, that the Franks Committee Report is in general preferable on this matter to the Amendment.

In paragraph 94, the Committee say—and I think that every word is full of wisdom, and with the Committee's permission I propose to read them: The general principle applicable to litigation in the courts, whereby an unsuccessful party is ordered to pay the successful party's legal costs, has generally speaking been considered inappropriate in the case of tribunals"— I understand the noble Lord, Lord Silkin, really to accept that view, but I do not quite understand the noble Lord, Lord Lucas of Chilworth, in that sense— even where the dispute is between private parties. Some tribunals have no power at all to award costs or their power is restricted to cases where a party is held to have acted frivolously or vexatiously; in others, including some of the most important tribunals (for example National Insurance and Industrial Injuries Local Tribunals), provision is made for the payment not of legal costs as understood in the courts but of travelling and subsistence expenses and of compensation for loss of remunerative time to applicants and witnesses, whatever the result of the case. We endorse the view that in most tribunals it would be wrong to award costs against a party or to relate the payment of expenses to the result of the case. We have already stated that accessibility is one of the main advantages of tribunals; if tribunals are to be truly accessible the citizen must be able to have recourse to them without running the risk of being out of pocket his reasonable expenses. The review of present arrangements for the award of costs by tribunals and for the payment of expenses etc. of parties can, we think, best be undertaken by the Council on Tribunals as part of its review of tribunal procedures. We set out below certain general considerations which we think should guide the Council in this review. In the succeeding paragraphs there are general considerations for the Council when they come to consider this matter, which I will not read to the Committee, though they would well repay reading, only because they are considerations for the Council rather than for the Legislature in considering this Amendment.

On the whole, the Government approve and accept this general approach to this complex matter. They think that this is really a matter for the Council to consider in relation to individual tribunals. I have here, but I will not inflict it on the Committee, a list of thirty-five different types of tribunals, on three separate sheets of foolscap paper, setting out the different provisions on costs, most of which are appropriate and would probably be unaffected by any review which would be effected by this Amendment, should it be carried. My advice to the Committee, on behalf of the Government, is that the Franks Committee recommendation that it should be left to the Council is a wise one.

It is not a simple matter. The general principles underlying the award of costs in litigation by the courts are not always applicable. The Lands Tribunal, whose proceedings and subject matter are closely akin to that of the courts, and another case in which we are legislating for disputes between subject and subject and not between Executive and subject as `such, have much the same power to award costs as the courts have and constantly use it. But this is totally inapplicable to the National Insurance and Industrial Injuries Local Tribunals, which are not concerned with determining costs. They have special power to award travel-ling expenses, subsistence allowances and compensation for loss of earnings, which we think is correct. No doubt the Council will look at every new case and decide whether the existing powers are right or wrong, adequate or inadequate.

Another argument against a general provision along the lines of the Amendment is that it would encourage applicants to employ legal representatives and lead to greater formality and to delays in tribunal proceedings. This is an argument which will appeal to some of your Lordships more than it appeals to me, but I have heard it used successfully in other proceedings in Parliament. The Franks Committee particularly endorse the view that it is important to preserve the informality of the atmosphere.

I should have said that the noble Lord, Lord Silk in, had primarily in mind the question. not so much of the tribunals as such, but of the report of the inspector in an inquiry ordered by a Minister, where on planning or on other grounds a dispute had arisen between a local authority and an individual subject or number of individual subjects. That was dealt with in paragraphs 321 to 326 and in recommendations 76 to 79 of the Franks Committee Report. The Committee were concerned with the circumstances in which costs ought to be awarded and not with the question of the power to award costs, which is the subject of this Amendment.

I would draw attention to this distinction, because I should have thought that the power to award costs in inquiries of this type (which I thought was most prominent in the mind of the noble Lord who moved the Amendment) was already covered by Section 290 (1) of the Local Government Act, 1933, which provides as follows: Where any department are authorised by this Act to determine any difference, to make or confirm any order, to frame any scheme, or to give any consent, confirmation, sanction or approval to any matter, or otherwise to act under this Act, and where the Secretary of State or the Minister is authorised to hold an inquiry, either under this Act or under any other enactment relating to the functions of a Local authority, they or he may cause a local inquiry to be held. And subsection (5) of the same section provides that: The department may make orders as to the costs of the parties at any such inquiry and as to the parties by whom such costs shall be paid, and every such order may be made a rule of the High Court on the application of any party named in the order. I think it is inevitable under the present procedure that power to award costs should subsist in the Minister concerned, partly because the Department is not bound to follow the report of the inspector and the inspector is therefore not an executive or judicial officer, whether he be independent, as some noble Lords have argued in another connection, or whether he is a member of the Department itself. The Franks Committee take the same view, because in Recommendation 78 they recommend that it should be the Minister and not the inspector who makes the award of costs. Therefore, I should have thought that, apart from the fact that Section 290 of the Local Government Act would seem to give powers, if they required authority, it refers to inquiries and not to hearings as distinct from inquiries. I do not think that this distinction is really valid in the noble Lord's mind, but it has already covered this case, at any rate for the time being.

The noble Lord would like us to look at another consideration, which interested me, about the kind of case in which costs are to be awarded. Of course, that is not strictly relevant to the Amendment, which is concerned with the power to award costs and not with the exercise of discretion in awarding them. I think it right to give a kind of indication of the way in which they are awarded at the moment. I thought that, although the noble Lord, Lord Lucas of Chilworth, went rather further, the noble Lord, Lord Silkin, was recommending the kind of policy which is supposed, at any rate, to be followed at the moment.

The Minister of Housing and Local Government normally awards costs only in exceptional cases—usually where a party has behaved frivolously or vexatiously. It would be folly to attempt an exhaustive list, but it might be that a planning appeal inquiry had been instituted where the appellant had already been refused permission for the same proposal on two or three previous occasions and the circumstances had not materially changed. On the other hand, some inexcusable failure by a local authority in the presentation of its case might have necessitated a second inquiry, and in such a case the council would probably be mulcted in costs. Or the council might rely on statutory powers which they ought to know would be inadequate and then try again in reliance on other statutory powers. In all these cases the Ministry is at present inclined to order costs. This is only a broad indication of the type of case, as I have said; but I should be inclined to think that this was a fairly wide power.

If the noble Lord thinks that in some way I have not met the kind of case he has in mind, he ought to come to my noble and learned friend on the Woolsack again and say that I have not entirely satisfied him. But, broadly speaking, I should hope to have made the case that, as regards tribunals, the range of dispute and categories of tribunals is so wide, and the desirable provisions in regard to costs and expenses so widely different in the case of the different categories, that the Franks Committee Report was right in saying that this was a matter which should be considered by the Council in detail; and that, as regards inquiries, there was some ground, at any rate, for saying that in the principal type of inquiry involved the provision as to costs was already fairly wide, and that if an alteration of policy was required into the way in which costs were awarded, probably this type of Amendment was not apt to achieve that object, although I did not understand that there was any great difference between the noble Lord, Lord Silkin, and me. I am pretty sure I am right, without referring to the book, in saying that in the case of Crichel Down—which I think misleads the noble Lord, Lord Lucas of Chilworth, a good deal in relation to this Bill, as it has very little to do with it—the subject did get his costs. It is some years ago, but my recollection—I should like to be corrected if I am wrong—is strongly that the Crown did, in fact, indemnify the successful subject in that case for his costs in the ordinary legal sense.


I am obliged to the noble and learned Viscount for his reply. I think he has done his best to deal with the Amendment, and I find myself in considerable agreement with him. I am quite content that the question of costs on matters which come before tribunals should be dealt with by the Council on Tribunals. If it is quite clear that that matter will be referred to them—I am not sure whether they can take the initiative themselves, or whether matters have to be referred to them—then it will meet my point to that extent. As to the question of inquiries, my Amendment is defective. Unfortunately, neither my noble friend Lord Lucas of Chilworth nor I have the services of skilled draftsmen at our disposal, and as I was moving the Amendment I noticed that we had made a mistake in leaving the question of costs to be decided by the inspector, Obviously, that must be wrong, because the inspector's recommendation may not be upheld by the Minister, and therefore it would be inappropriate for the inspector to order costs to be paid.

I was aware of Section 290, but the point I made was that, to my knowledge, it has been acted upon only once, in a case where admittedly the appeal was frivolous and vexatious. But the Franks Committee want costs to be the normal thing, and not that they should be limited merely to the extraordinary case. If the noble and learned Viscount will look at paragraph 95, which he was reluctant to inflict upon us but which I feel it is my duty to inflict upon the Committee, at any rate as to a portion of it, he will see that they say: We think that the general principle should be that a successful applicant should always be given a reasonable allowance in respect of his expenses. This is intended to include travelling and subsistence expenses, expenses of the attendance of witnesses"— and that might be quite expensive if they are expert witnesses— and allowance for loss of remunerative time, together with an allowance in respect of the cost of legal representation in cases where the tribunal is satisfied that legal representation was reasonable. They are saying that the general principle should be that a successful applicant should always be given these costs, and not, as is the present practice, that it should be restricted, as I can assure the noble and learned Viscount it is, to cases where the appeal is regarded as vexatious and frivolous—which is, of course, an allowance of costs against the applicant. I have never known of a case where costs have been allowed to the applicant.


I do not want us to be at cross-purposes. My understanding of paragraph 95 is that it relates to tribunals. That is the part of my speech in which I referred to it. I think that if the noble Lord looks at, for instance, the paragraph which I referred to in the 300s, he will find that it deals with inquiries; and the recommendations referred to in relation to inquiries are, for instance, Nos. 75, 76, 77 and so on, where they are not quite the same as in paragraph 95. I think that, to some extent, the noble Lord is being misled by my reference to paragraph 95, which I believe is limited to tribunals.


There is a reference in paragraph 95 to inquiries, but it is difficult to follow exactly what it means. However, I would pray those words in aid of the doctrine I am putting forward. If it is right that a successful applicant should get his costs, or some of them, when he appears before a tribunal, it seems to me quite illogical that he should not get them when he is successful in the much bigger matter of an inquiry. I do not think the Franks Committee intended to draw any distinction between the two.


I think the noble Lord will find that the inquiry he is dealing with is covered in paragraphs 321 and following; and although there is a certain similarity, I think he will find that what is said is sufficiently different to justify my drawing his attention to the fact that paragraph 95 was not really intended to deal with the kind of inquiry he had in mind.


I do not think the Committee will be interested in this private argument between us. Nobody, least of all the Government, would accept the doctrine that every word of a Departmental Committee Report is sacrosanct and has to be followed. I am appealing to the common sense of your Lordships, that if costs can be awarded, as the Committee obviously thought they should in cases that come before tribunals, then a fortiori they should be awarded in cases that are dealt with on inquiry. I see no difference between the two.

The noble Viscount has told us that it is possible to do this. But the fact remains that it is hardly ever, if ever, done. In my experience, which is by now fairly lengthy, I have never known a case. As I told your Lordships on an earlier Amendment, I have had experience on behalf of a local authority, on behalf of Her Majesty's Government, as a private citizen and professionally; and in spite of Section 290 of the Local Government Act, I have never known a case where a successful appellant has been awarded costs. What I was seeking to do by this Amendment was to obtain an assurance from Her Majesty's Government that they would refer this matter to the Council which is to be set up;and I hope they will. The noble and learned Viscount can give us that assurance. He has already gone near to it, without making it a definite assurance, as regards tribunals. If he will go one stage further, I think he will have gone a long way towards satisfying us.

On Question, Amendment negatived.

Clause 7 agreed to.

Clause 8 [Appeals from certain tribunals]:

3.37 p.m.

LORD LUCAS OF CHILWORTH moved, after subsection (1) to insert: (2) If any party to any inquiry or hearing as specified in subsection (2) of section three of this Act is dissatisfied in point of law with the order of the appropriate authority made after consideration of the report of the inspector or other person conducting the inquiry or hearing thereof given on or after the appointed day he may according as rules of court may provide either appeal therefrom to the High Court or require the appropriate authority to state and sign a case for the opinion of the High Court.

The noble Lord said: I plead for the assistance of the noble and learned Viscount: in this Amendment. Clause 8 says that if any party to proceedings before arty of the tribunals mentioned in the First Schedule to this Act is dissatisfied in point of law with a decision of the tribunal given on or after the appointed day he may, according as rules of court may provide, either appeal therefrom to the High Court or require the tribunal to state and sign a case for the opinion of the High Court. The only thing I seek to achieve by this Amendment is that this right should also apply to the administrative procedures where the appropriate authority is empowered, after consideration of an inspector's report, to make a decision. If the noble Viscount tells me that there is that right to appeal on a point of law, I shall be quite satisfied. What puzzles me is that the right of appeal is specifically written out in the case of tribunals, but nothing is said in Clause 8 as regards the administrative procedures and the appropriate authorities, who are the Ministers, who have to give decisions after considering the reports of inspectors. In my view, the same right should be given in such cases to those who wish to challenge on a point of law as is given in the case of tribunals. If the noble Viscount can assure me that that is the case, I shall be quite content. I beg to move.

Amendment moved— Page 6, line 44, at end insert the said subsection.—(Lord Lucas of Chilworth.)


I am grateful to the noble Lord, who, with his industry and perspicuity, has raised these points. If the answer seems technical it is because the subject is technical. The purpose of Clause 8 is to give a right of appeal from certain tribunals on a point of law where it is considered that a general right of appeal on any point of law is appropriate. As regards the other tribunals, speaking generally, the Franks Committee say this: There remains the question of an appeal on law. It is difficult to see how any question of law could arise other than a question of jurisdiction or procedure. The present form of appeal, covering these two matters, seems to us adequate, particularly since the scope for bringing appeals on grounds of alleged procedural irregularity will be wider if the various recommendations which we have made for strengthening and improving the procedure are adopted, and, where appropriate, given statutory effect. This form of appeal should, however, be applied to decisions on planning appeals in the same way as it applies to decisions in other cases relating to land. Then there is a procedural point in which I do not think the Committee would be interested. The short point, therefore, is that a right of appeal in general already exists, either on the ground that the order in question—and again we are mainly considering matters affecting land—was ultra vires, or that the prescribed procedure had not been followed. The Committee said, and the Government agree, that it is difficult to see how any question of law could arise other than a question of jurisdiction or procedure. The Committee therefore thought, and again the Government agree, that the present form of appeal covering these two matters was adequate.

As regards other inquiries (because your Lordships will remember that the Committee said they were confining themselves primarily to matters affecting land, although they thought in general the same general principles should apply to other inquiries), the position is that the Government have not considered how far, in every case, the recommendations of the Franks Report can be applied. The form of appeal which I have been discussing does not exist from planning decisions. The Franks Committee thought it should apply to planning decisions, and the Government will consider this in relation to any revision of the Planning Acts, and will note the Committee's Report in that respect. In view of this explanation, which I warned the Committee would be slightly technical, I hope the noble Lord will not feel it necessary to press his Amendment.


We have no knowledge of any proposed planning legislation. We have had no notice of it; there is nothing in sight, and I doubt whether the noble and learned Viscount and his friends will be in a position to introduce any new planning legislation in the near future. If they are in favour of extending the right of appeal to planning matters, why cannot it be introduced into this Bill? What the noble and learned Viscount is telling us, in effect, is: "Yes, we agree. We think it is right. We did not 'spot' it before. Now we do 'spot' it, we will put it off until the Greek Kalends. We will not do it now." It would be quite easy to do it now. It would not tax the ingenuity of Parliamentary draftsmen to make provision, not necessarily in the form in which my noble friend has moved this Amendment but in some suitable form, to extend the right of appeal in these cases. After all, they are the most important; they are the most numerous, and they are the matters which most widely affect the community. The noble and learned Viscount is saying "Just in those cases we will not at present have an appeal". Will he give an undertaking that between now and the Report stage he will at least consider this point, to see whether it is possible to put something into this Bill which will provide the right of appeal? If he does not, we must press this Amendment to a Division.


I am quite sure my noble and learned friend on the Woolsack would wish me to say that he will consider the noble Lord's argument, without giving any undertaking in relation to any result which will proceed from the consideration. I am bound to say that it seems to me the decision of the Government to relate planning appeals in this respect to revised planning legislation is probably the right one. The noble Lord's only reason for differing appears to be that he thinks the Government will not remain in office very long. If he is right, perhaps he will be in a position to implement this himself. I should have thought that either way this Amendment was unsuitable.


The noble and learned Viscount may think that, of course: it is one of those humorous interludes we have occasionally to suffer in this House. But it does not answer the point made by my noble friend. Our complaint about this Bill is that it ignores completely administrative procedures. It seeks to tidy up tribunals, which in our view require little tidying up; but the big thing that affects the life of the citizen to-day is the administrative procedure of the public inquiry, which this Bill ignores in that specific respect. May I draw your Lordships' attention to paragraph 406 of the Franks Committee Report? This is what it says: We regard both tribunals and administrative procedures as essential to our society. But we hope that we have equally indicated our view that the administration should not use these methods of adjudication as convenient alternatives to the courts of law. We wish to emphasise that in deciding by whom adjudication involving the administration and the individual citizen should be carried out preference should be given to the ordinary courts of law rather than to a tribunal unless there are demonstrably special reasons which make a tribunal more appropriate, namely the need for cheapness, accessibility, freedom from technicality, expedition and expert knowledge of a particular subject. Similarly, preference should be given to a tribunal rather than to a Minister, and this requires that every effort should be made to express policy in the form of regulations capable of being administered by an independent tribunal.… Then paragraph 407 says: Where, in the light of these considerations, it is justifiable to establish a tribunal or to entrust adjudicating functions to a Minister we are convinced that an ultimate control in regard to matters of law should be exercised by the traditional courts…". That is the object of this Amendment, and if the Government intend to recognise this fact then I can only concur with what my noble friend says: "Put it in this Bill."

Why deny the citizen, upon the whole bulk of these public inquiries and administrative tribunals, recourse to the courts of this land if it is right that he should have it'? The whole tenor of the Franks Committee Report, from beginning to end, is the courts rather than tribunals; tribunals rather than administrative inquiries. But where Ministers make decisions as the result of administrative procedures, questions of law can be decided only by the courts, and the Minister should not have the right to evade that issue. That is all this Amendment seeks to do. I hope the noble and learned Viscount will give us this undertaking, because we do not want to carry this to a Division. We want the arguments brought out so that the noble and learned Viscount the Lord Chancellor can deal with these points after the Government have had the opportunity of considering them. If he will give us that assurance we shall be quite satisfied.


The noble Lord, Lord Silkin, asked me to give an undertaking. I thought I had given him that undertaking in the terms in which he had been asking; and, if I am right in my assumption, every word that has just fallen from the noble Lord opposite was unnecessary, and I should be prepared, if it were worth while to detain the Committee, to say that it was also tendentious and misleading.


The only reason why it was necessary to say what I did say was because the noble Viscount's peroration, which he must occasionally give in this House, suggested that if the Government is changed within a certain time then my noble friend himself will be able to do it. That was not in the spirit in which the discussion has taken place.


The noble Lord must: allow me to say that that is not correct. The point arose from a suggestion from the other side which I am bound to say I took in good part. I think the noble Lord, Lord Silkin, suggested that the Government would not be very long in office and therefore ought to act now. I could have answered that with what the noble Lord, Lord Lucas of Chilworth, referred to as a "peroration". I chose not to do so; I chose to follow the "soft answer that turneth away wrath", and to say that in that case the noble Lord would be able to act himself.


In the light of that undertaking we will withdraw this Amendment.

Amendment, by leave, withdrawn.

Clause 8 agreed to.

Clause 9 agreed to.

3.54 p.m.

LORD BALFOUR OF BURLEIGH moved, after Clause 9 to insert the following new clause:

Reasons for decision to be given in disputed cases

"10. Subject to any procedural rules which may be prescribed after consultation with the Council, full reasons shall be given for any order or determination by a Minister, tribunal or other person (not being a court of record) to whom is entrusted by any Act, order or regulation the decision of a difference or dispute."

The noble Lord said: The object of this Amendment is to put in the Bill an obligation on a person giving a decision to give reasons for that decision. This follows a perfectly clear recommendation by the Franks Committee both as regards tribunals and inquiries, and I hope that it will commend itself to my noble and learned friend. There can be no doubt that it would be a great contribution to the openness, fairness and impartiality which we all want to see and which the noble and learned Viscount on the Woolsack has accepted. Of course, there are two good reasons why reasons should be given. The first is that it is the common man's conception of justice; if he is told why a decision is against him he understands it much better. Secondly, to give reasons is a good discipline for the person who has to give them; it tends to clearness of thought.

I think it probable that the noble and learned Viscount in charge of the Bill may say that the intention is to do this by procedure. There was an indication of that in the speech of the noble and learned Viscount on Second Reading. I would venture to submit to the Committee that this principle of giving reasons is so important that it ought to be put into the Statute and should find a place there. The Amendment is similar to one which is on the Marshalled List a little later in the names of three noble Lords opposite, and I hope therefore that I shall receive support from that side of the House. I regret that my noble and learned friend Lord Denning is not here, because I am indebted to him for the drafting of this Amendment, and I had hoped to have his support, in particular to explain to those of your Lordships who do not know what a court of record is, what it is; but perhaps the noble and learned Viscount in his reply will help us. I should be sorry to be asked for a definition myself. I think that that is all I need say. It is entirely in the spirit of the Franks Report; it is in the spirit of the acceptance of that Report by the noble and learned Viscount on the Woolsack, and I hope the Government will accept it. I beg to move.

Amendment moved— After Clause 9 insert the said new clause.—(Lard Balfour of Burleigh.)


I should like to support my noble friend on this point. It is clear in paragraph 328 of the Report that the Franks Committee attach considerable importance to this matter of publishing reasons. But even more important than that is the fact that it will be of the greatest assistance to the public. I believe, too, that there will be a great administrative advantage in the publishing of reasons, because it will tend to diminish the number of appeals that are made; for if the public and developers in general knew the reasons for ministerial decisions they would be on much firmer ground in accepting their further policy. At present when parties appear before the majority of planning inquiries, these inquiries are looked on as a lottery. On an average, I think it is true to say that about one in four appeals succeed. That being so, if it is a matter of considerable importance, most of the developers are prepared to have a "lucky dip," if the odds are no greater than one in four. But if the reasons are given in full by the inspectors, then I think the number of people who have to appeal in one way or another, at any rate in planning matters, would tend to diminish.

The number of appeals is one of the great disadvantages of the Town and Country Planning Act, 1947. The machine is so clogged with appeals that, first of all, they take much too much time, and, secondly, the issue continues to be in constant doubt, and on the one-to-four basis it is often worth while lodging an appeal. I believe that my noble friend's Amendment would be of the greatest benefit. That is reinforced by what the noble and learned Lord. Lord Denning, so forcefully said on Second Reading. I hope the noble and learned Viscount who is going to reply will be able to accept the spirit, if not the wording, of this Amendment.


On a point of order. I do not know whether it would be convenient to the Committee to consider this Amendment, or the arguments for it, at the same time as the rather later Amendment on Clause 10 in the names of noble Lords opposite which really raises the same point, but in quite different draftsmanship. I would therefore, with the permission of the Committee, invite the noble Lord opposite to advance the reasons for his Amendment at the same time.


I am much obliged to the noble and learned Viscount; that is exactly what I was going to suggest. Indeed, for the purpose of this debate I am more than willing to accept the Amendment of the noble Lord, Lord Balfour of Burleigh, in preference to my own; I think it is at least as well drafted. I believe this Amendment is one of great importance. In most cases the difficulty is not that the local authorities against whose decision the appeal is made do not give their reasons—they do; but they give reasons which are wholly inadequate. They say, for instance, that they are refusing an application because the development is inappropriate. That is all. They never say why it is inappropriate. Or they may say that the development would interfere with the amenity of a district. Sometimes one searches in vain for any amenity which would be affected. I know of a particular case where land adjoins an airfield and is, generally, in a very dilapidated area. An application for development was refused on the ground of interference with amenity, but by no stretch of the imaging, ton could any amenity be found there. Had that local authority tried to explain which amenity it was suggested would be interfered with, they might have cleared their own mind. If the local authority were under an obligation to consider in more detail the argument against an application they might allow it.

I believe it is right to say (it is certainly so within my own experience) that when a Minister makes a decision he gives very full grounds, and I do not think any exception can be taken to the present practice of giving full grounds. The difficulty arises with the great many local authorities who consider it necessary to dismiss an application in the minimum number of words. A difficulty may arise with tribunals who hear cases and give a decision orally. I imagine that in most of those cases no possible question of appeal could arise; but I would suggest that where there is any question of an appeal there should be a requirement that the local authority should give their decision in writing, so that it will be on record. A person appearing before them would then have the opportunity of judging whether or not there is a possibility of an appeal. May I say to the noble Lord, Lord Hylton, that the odds in favour of an appeal are rather higher than his figure of 25 per cent. I believe that in my time they rose to 100 to 40—or 5 to 2 against; but I would say that the average is about 3 to 1 against.


Much water has flowed under the bridge since the noble Viscount was a Minister.


In fact, 3 to 1 against is 25 per cent.


I beg your Lordships' pardon; it is 2 to 1. That is not really the point, however. I admit that there might be more appeals if local authorities were required to give their reasons more fully. On the other hand, their decisions might be better if they were under an obligation to think out exactly why they were refusing an application—and they might eventually decide that they were not justified in refusing. I hope that this Amendment can be accepted. It is definitely in the spirit of the Franks Report.


I should like to support my two noble friends on this side of the Committee and the noble Lord, Lord Silkin. As a landowner and as the County President of the Central Landowners' Association I attach great importance to this Amendment. I would describe the situation in this way: it would be in disaccord with the conception of British justice not to accept the spirit of this Amendment, if not the letter. All of us who are interested in this matter attach the greatest importance to the acceptance of the spirit, at any rate, of the Amendment.


I agree with noble Lords who have described this as an important Amendment and I am quite sure that my noble and learned friend on the Woolsack would wish me to say that we will consider it between now and the Report stage. I am sure that that would be in keeping with his wishes and I do give that undertaking. I do not think any of the Amendments will do, in their present form. Since the noble Lord who moved the first of these two Amendments was good enough to give the Committee the source of the draftsmanship of his Amendment—and I am very glad to see the noble and learned Lord, one of the most distinguished legal draftsmen in the country, in his place—I cannot refrain from saying that I believe it is the less appropriately drafted of the two proposed Amendments.

I would further suggest to him that it would be very difficult to exclude from his Amendment all arbitrators—even those who are referees in a contract of appraisement. They are not courts of record and are very often there to settle a dispute or a difference. When they do so in accordance with the submission or contract of appraisement, it is very likely precisely because the matter is not one in which reasons for the decision can be given that they are selected for that purpose. The City arbitrator, for example, who decides on the quality of a shipment of corn, would find it very difficult to say anything except that the corn tastes nasty or smells wrong, or something of that kind. He would have difficulty in giving precise reasons for his decision as to the value of the corn. I mention that, not for the purpose of being pedantic or (much more enjoyable) of being able to criticise the draftsmanship of a Law Lord, but also because it has some bearing on the substance of the Amendment.

Among these tribunals are some, such as the General Commissioners of Income Tax or the Rent Tribunal, who arrive at decisions very much on all fours with those of an arbitrator, and I should not like the Committee to have the idea that we think it is appropriate in all cases to give full reasons for decisions of all tribunals in the First Schedule to the Act. I am glad to see that my noble and learned friend the Lord Chancellor has now relieved me of the substantial responsibility for the Bill. Inasmuch as I have undertaken, on behalf of Her Majesty's Government, that these Amendments shall be considered by him between now and the Report stage, I hope that we need not press this argument in all its details at this stage.


I am much obliged to the noble and learned Viscount for what he has said. I should not have thought the drafting of this Amendment was quite as bad as he indicated, because after all it does begin: subject to any procedural rule which may be prescribed which I think gives it the necessary flexibility which the noble and learned Viscount seeks.


It refers it to the Council for better draftsmanship.


do not follow the noble and learned Viscount. It gives the Council complete power to make such rules as they like, and that seems to me to cover the point. But in view of the reception which the noble and learned Viscount has given it and his promise to consider it, with the permission of the Committee I have pleasure in withdrawing this Amendment.

Amendment, by leave, withdrawn.

Clause 10:

Extension of supervisory powers of superior


10.—(l) As respects England and Wales, any provision in an Act passed before the commencement of this Act that any order or determination shall not be called into question in any court, or any provision in such an Act which by similar words excludes any of the powers of the High Court, shall not have effect so as to prevent the removal of the proceedings into the High Court by order of certiorari or to prejudice the powers of the High Court to make orders of mandamus:

Provided that this subsection shall not affect Part V of the County Courts Act, 1934 or section twenty-six of the British Nationality Act, 1948, or apply to courts of summary jurisdiction or quarter sessions or where an Act makes special provision for application to the High Court within a time limited by the Act.

(2) As respects Scotland, any provision in an Act passed before the commencement of this Act that any order or determination shall not be called into question in any court, or any provision in such an Act which by similar words excludes any jurisdiction which the Court of Session would otherwise have to entertain an application for reduction or suspension of any order or determination, or otherwise to consider the validity of any order or determination, shall not have effect so as to prevent the exercise of any such jurisdiction:


This seems to me merely a matter of drafting. I do not know why the Act should limit the operation to what is "passed before". My Amendment provides for operation whether before or after the commencement of the Act. I beg to move.

Amendment moved— Page 9, line 11, leave out ("passed before") and insert ("whether passed before or after").—(Lord Balfour of Burleigh.)

4.10 p.m.


May I first of all apologise to your Lordships for only just coming here? I was sitting judicially until four o'clock, so I hope that your Lordships will not think that I wasted much time between my two functions. In answer to this Amendment and the speech of my noble friend Lord Balfour of Burleigh, let me say that the difficulty about his Amendment is that its effect would be to state an attempt to bind future Parliaments and to prevent them from legislating so as to exclude certiorari and mandamus. We could not do that; it is constitutionally impossible, and his Amendment would have no effect. If my noble friend is worried about the secondary question, that a future enactment will have to use the clearest language in order to oust the jurisdiction of the court, I will assure him that that is already the position: the courts will not accept anything but the clearest expression of Parliament's intention. But on the general point the position is as I have stated: that we cannot bind future Parliaments, and it would be unfortunate to create the uncertainty of using words which could only have that effect and which have always been rejected previously.


I am obliged to my noble and learned friend, and I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.


This Amendment follows the recommendation of the Franks Committee. I find the following statement in paragraph 117 of their Report: Whatever may be decided as to the scope and method of appeals to the courts from tribunals we are convinced that the remedies by way of orders of certiorari, prohibition and mandamus should continue. Consequently I am moving to put in the word "prohibition", which seems to be required. I beg to move.

Amendment moved. Page 9, line 17, after ("mandamus ") insert ("or prohibition: ").—(Lord Balfour of Burleigh.)


The difficulty I have with this Amendment is that, so far as I can discover, it is unnecessary, because there are no statutory provisions of the kind at which the clause is aimed which exclude prohibition. The provisions in question take the form of excluding challenge in the courts of any order or determination; that is, they operate after a decision has been reached. But prohibition is the appropriate method by which the High Court prevents an inferior court or tribunal from entertaining or continuing proceedings; that is, it operates before the decision is reached, and so is not affected. The clause is mainly concerned with certiorari; that is, the method by which the High Court removes a decision for the purpose of quashing it. More rarely, however, when the decision consists of a refusal to hear a case or to make the appropriate order, the proper remedy may be mandamus to hear and determine or to make the order. I should like to assure my noble friend that it is no desire to limit the sphere of activity in the courts which makes me take the view I have explained. If he would like to consult with the noble and learned Lord, Lord Denning, between now and the Report stage, and if their united strength and ability can give any example which shows I may be wrong, I shall be very pleased to consider it. But at the moment the Amendment seems to me to be unnecessary.


I am obliged to my noble and learned friend. I am only too conscious of being foolhardy in wading knee-deep in these technicalities, and I have no hesitation in withdrawing this Amendment.

Amendment, by leave, withdrawn.

LORD BALFOUR OF BURLEIGH moved, in subsection (2), after "Scotland" to insert: the Court of Session shall have the like power to remove proceedings into that court as the High Court in England, and".

The noble Lord said: If I was foolish up to a point in wading knee deep in legal technicalities, I must be even more foolhardy in venturing upon this Amendment. We have so often been told in this House that the law of Scotland is superior to the law of England, which I am very glad to believe is the case. Having come across an instance in which it seems that the law of Scotland is not quite so favourable as the law of England, in my innocence and foolhardiness I am seeking to give Scotland the benefit of the English position. I beg to move.

Amendment moved— Page 9, line 23, after ("Scotland") insert ("the Court of Session shall have the like power to remove proceedings into that court as the High Court in England, and"),—(Lord Balfour of Burleigh.)


I agree with my noble friend that probably nothing more rash has been done in the history of our common country since his late Majesty King Charles I provoked the Bishops' Wars in 1639. But as my noble friend has invoked the law of Scotland I should like to put the position as I see it, because once again I am anxious that I should not only meet my noble friend's Amendment but also consider some observations of my noble and learned friend Lord Denning on Second Reading, which I found very interesting at the time. The purpose of the Amendment, of course, is to import into the procedure in Scottish courts a procedure which applies at present only in England and Wales. The difficulty is that the Amendment assumes that judges and lawyers in Scotland have knowledge of the powers of the High Court in England in relation to certiorari, a knowledge which, since the foundation of the Court of Session by James V himself, we have found unnecessary.

In the Second Reading debate my noble and learned friend Lord Denning raised the suggestion—I hope not to put it too highly, because I know that my noble and learned friend is most scrupulous in regard to the comity of the courts of the two countries—that Clause 10 ought to introduce into Scottish procedures the ideas of certiorari and mandamus. As my noble friend Lord Balfour of Burleigh has indicated before, this was also suggested by the Franks Committee, in paragraph 110 of their Report. The reason why we have not followed this suggestion is that, so far as errors of law are concerned, the stated case provided for in Clause 10 (2) is no novelty in Scottish procedure and is a more suitable method of bringing a tribunal's determination under review; while on the other side, so far as want of jurisdiction and other fundamental defects are concerned, the well-known procedure by application to the Court of Session for reduction or suspension of the determination is perfectly adequate. Where provision for a stated case is needed, and is not already made, it is now made by Clause 8. Where there has hitherto been a bar to procedure by way of reduction or suspension, it is removed by subsection (2) of Clause 10.

There was another point which my noble and learned friend Lord Denning raised on Second Reading, and I mention it to show him that I have considered it and to give him the opportunity of considering my approach and, if necessary, seeing me or raising the matter on the Report stage. But as I understood it, in his speech [OFFICIAL REPORT, Vol. 208 (No. 52), col. 603] my noble and learned friend was referring to the determination of the Industrial Disputes Tribunal in a dispute originating in Paisley; and he stated that the employers, who were aggrieved by the determination, could not have it reviewed in Edinburgh and had to bring it to London. I think that was the case—The Queen v. Industrial Disputes Tribunal and others, ex parte Kigass—which my noble and learned friend had in mind. My noble and learned friend the Lord Chief Justice, Lord Goddard, said, in his judgment in that case—and I quote his words: The Court heard counsel and considered yesterday the question as to whether it would be right for this Court to deal with the matter or whether it ought to have gone to the Court of Session. We came to the conclusion that although it would be no doubt within the competence of the Court of Session to hear the case, as the Company had their registered office in this country and the Tribunal sat in, this country, there would be no objection on a point of law or point of comity in this Court hearing and determining this motion. At the same time, speaking entirely for myself, I cannot help thinking that it would be much better where the whole subject matter of the dispute had arisen in Scotland that the proceedings should be taken in the Scottish Courts and not the English Courts but, as I have said, we hold that there is no objection to our going into the matter and, from the point of view of comity, there is no objection to our doing so. Apart from whatever confirmation that judgment of my noble and learned friend Lord Goddard holds, my right honourable friend the Lord Advocate, who was also consulted in this matter, considers that the Court of Session probably would have jurisdiction and my learned friend the Dean of Faculty of the Scottish Bar has expressed a similar view. Therefore any doubt lay in the venue of the tribunal, which was in England, rather than in the lack of powers in the Scottish Courts. I hope that your Lordships will forgive me for enlarging on this matter, but I have the greatest respect for the views of my noble and learned friend Lord Denning, and I was anxious to show him that I had considered the matter; and I hope that I have done so. I hope also that I have shown my noble friend Lord Balfour of Burleigh the reasons why I should not like him to provoke a Jurists' War, as King Charles I provoked a Bishops' War.


I am much obliged to my noble and learned friend. I feel that he has extricated me from an embarrassing position. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD SILKIN moved to add to the clause: (3) Where any tribunal specified in the First Schedule to this Act is empowered to make any order or determination or where an appropriate authority is empowered by statute to make or confirm any order or determination which interferes with or takes away legal rights enjoyed by any person the tribunal or appropriate authority as the case may be shall state the grounds upon which the order or determination is made.

The noble Lord said: I move this Amendment for two reasons. One is that I should be grateful if I could have an assurance similar to the one which was given on Amendment No. 12, moved by the noble Lord, Lord Balfour of Burleigh, that this matter will be considered. Secondly, I should like to point to a distinction between the two Amendments, although both are moved for the same purpose—namely, to ensure that reasons are given. In the case of the noble Lord's Amendment, there is a precondition that this matter should come before the Council, whereas I see no reason why it should be necessary for it to come before the Council. I think that this is a matter which could be dealt with directly in the Bill and should be made obligatory without any reference to the Council. I hope that the noble and learned Viscount will give the undertaking that he will look at both Amendments and, in particular, will consider the last point I have made.

Amendment moved— Page 9, line 36, at end insert the said new clause.—(Lord Silkin.)


I am very ready to give the undertaking that I will consider the noble Lord's Amendment. I should like to look closely at his second point, which I have not had a chance of considering, as unfortunately I missed the debate on the last Amendment. I assure the noble Lord that I will give the Amendment the full consideration which it deserves, because it is designed to carry out something which we are all anxious to see done if it can possibly be achieved.


I am very much obliged to the noble and learned Viscount, and in view of that assurance I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 10 agreed to.

Remaining clauses and Schedules agreed to.

House resumed by the Lord Chancellor.