HL Deb 13 May 1958 vol 209 cc233-47

2.36 p.m.

THE CHAIRMAN OF COMMITTEES (LORD MERTHYR)

My Lords, No. 91 of the Standing Orders of the House on Private Bill Procedure reads as follows: The Chairman of Committees may, if he thinks fit, direct the attention of the House … to any special circumstances relative to any Private Bill which may appear to him to require it. In my opinion, there are in relation to the Kent County Council Bill certain special circumstances which it is desirable that I should bring to the attention of the House so that the House can, if it sees fit, take any action it wishes to take.

This Bill is a Private Bill; it has had a Second Reading in your Lordships' House, and is now in Committee, but has not yet had a Third Reading. I will, if I may, quote some figures and statistics concerning the Bill, and I should like to say that if, perchance, any of these are not quite accurate, which I am afraid may be the case, the reason is that clauses have been struck out of the Bill and other clauses have been added—in fact, it is almost true to say that daily the number of clauses is different. As deposited, the Bill consisted of 442 clauses and six Schedules. In my view, for reasons which I hope to relate later, this Bill is in part objectionable. One thing, in particular, that I want to emphasise is that I have not the slightest objection to the Bill on account of its length. I am sure your Lordships agree that it would be utterly wrong to object in any way to any part of the Bill merely because it was a long one. It would be just as wrong to do that as it would to pass a Bill into law, irrespective of its merits, just because, as I am perfectly satisfied has happened in this case, an immense amount of trouble had been taken in the preparation and drafting of the Bill by a panel of experts who had worked tremendously hard and for a long time upon it. And I should like to pay tribute to those who have taken such great trouble over this Bill.

The real point I am trying to make this afternoon, my Lords, is that this Bill confers powers on authorities other than the Promoters, admittedly not in a manner which is unprecedented, but to an extent and on a scale which I venture to say is unprecedented. To justify the attitude which I have taken up, I should like to quote a few more statistics. This Bill consists of 17 Parts, and it can be truthfully said that only one of those 17 Parts is the sole concern of the Promoters—the Kent County Council. Only 46 of the 442 clauses exclusively concern the Promoters. Of the other clauses, 136 are in part the concern of the Promoters and in part the concern of other authorities. An example of that is to be found in the clauses dealing with highways which would enable the district councils to do certain things on highways, the Kent County Council being the highway authority; and as the Kent County Council is the highway authority, it can truthfully be said that the County Council is interested in those clauses. But 238 other clauses—that is, rather more than half the Bill, in terms of clauses—confer powers on other authorities exclusively, and not upon the County Council at all. Then, in terms of the number of powers conferred, this Bill altogether confers 519 powers on somebody, only 93 of which are conferred upon the Promoters, the remaining 426 being conferred upon other authorities.

I have ventured to quote those figures to try to show the scale of the problem under this Bill. In Kent there are 56 districts, including boroughs, and 251 parish councils, all of which are concerned with the Bill. In passing, I would also make this point, which I think is significant. Out of the 56 districts there are 38—namely, the urban districts and the boroughs—which, under the Local Government Acts, would have had to hold town meetings, in order to get the powers which they are getting under this Bill; but they do not have to hold them because they are getting the powers under this Bill. In other words, by getting those powers in this way they escape the necessity for holding town meetings. The whole question of town meetings is one upon which strong views are held by both sides, and I am not going to say what my views are about them; but I think it right to mention that the necessity to hold town meetings is escaped by this process under this Bill. Whether that ought to be so is a matter of opinion.

To this question to which I am referring this afternoon there are two sides; and, unfortunately for my own peace of mind, I must admit that I find some of the arguments for these clauses attractive. That is what makes the matter more difficult. May I mention some of the arguments that are put forward in favour of these clauses being allowed in this Bill? First of all, I confess at once that there is nothing in this Bill which is not precedented. I cannot point, I own, to a single clause in this Bill which has never been in a Bill before. That I admit; but I am going to say that what matters is not the fact that there is precedent but the fact that, as I have said before, the scale of this is something quite different from what we have been accustomed to in the past.

The story of this matter begins in the year 1921, when two clauses in a Private Bill promoted by the Middlesex County Council began the process of conferring powers by one authority upon others. That process has been greatly expanded, until to-day we are confronted with this Bill which does that on a scale never before contemplated. Precedents, of course, properly guide the House, but, as I understand it, they do not bind the House. The House is not bound by the precedents of another Bill as, for example, a law court is bound by the decision of a court higher than itself. Then it is said that if these clauses are allowed it will be an economy; that to do this by one Bill will save a great deal of money, as compared to, let us say, having fifty-six district council Bills. That, on the face of it, is an impressive point; but, of course, there is no saying that many of the fifty-six districts would have promoted Private Bills if this Bill had not been doing it for them. And, of course, one must observe that if it is an economy to have one Bill instead of fifty-six in the county, it would be still more of an economy to have one Public Bill to do it for the whole country.

Then it is said that this process will conduce to uniformity—uniformity within the county. On the face of it, that again is an impressive point. But in the country, as opposed to the county, it will, in my submission, produce the opposite of uniformity, because, as I shall mention in a moment, what we shall have if this process goes on—and let us face this fact—is in England and Wales at least, if not in Scotland, a different law in every county. Finally, it is said, among other things, by the Promoters, that the good government of the county is the concern of the County Council. One can understand that sentiment, but I can find nothing in the Local Government Acts to support it. There is nothing which shows that in 1888, when county councils were formed, it was the intention of Parliament to make that the function of the county councils. So I suggest that, however attractive that view may be in theory, it is not really the national policy that county councils should undertake this work and become, in effect, miniature Parliaments.

I turn to the case against the clauses, and I repeat, with emphasis, that the length of this Bill is not one of the points against it. But, as I have said, there has been nothing like this on the scale and in this degree before, and in my view that makes it desirable for the House to reexamine the procedure that it is sought to adopt. Let me, if I may, begin right at the beginning and put this proposition. Petitions for Private Bills are requests for exceptions to the general law to be made for the benefit of the authorities or persons who present the Petitions to Parliament. If that is a sound proposition, your Lordships will see that we have come a long way from it when we consider this Bill. May I give an example of a genuine Private Bill such as was contemplated when this process was first begun? To-morrow afternoon your Lordships will be invited to pass into law a Bill to authorise the closing of a churchyard, a single churchyard in a single city, and the erection upon part of that churchyard of a building. The Bill is necessary because under the general law that would be illegal; and so a Private Bill is sought to be passed by Parliament to authorise it.

That, as I conceive it, is a genuine example of a Private Bill. But how different is that from the present Bill that we are considering!

There is another principle that I must mention which is very well known and observed in Parliament: that the exceptions to the general law are justified only if there is proof of local need. That is a doctrine which has always, as I understand it, pertained in both Houses of Parliament since this business began. I would go so far as to say that this doctrine of local need is the very cornerstone of Private Bill legislation, and that there is a likelihood of that being knocked away by the passage of a Bill such as this, if it is allowed to proceed in its entirety. I have said something about precedents; but the precedents for this that have happened before are a mere trickle compared to the flood that will be allowed to run if these clauses are allowed in this Bill; and if they are allowed there is no knowing what other Bills may follow, promoted by other counties. This much is sure: if this flood is allowed to run, there will be no stemming it, no damming it in the future, because it will be said that it has been allowed now.

So I justify this intervention in your Lordships' business by saying that if this process is to be terminated it must be now or never. I can see that it may be right that it should not be, but I think your Lordships will agree that it is at least worth considering whether it should be. In this Bill, the Kent County Council Bill, no one pretends that there is local need, proved by all the authorities, for all the powers which the Bill gives them—I do not think anybody really contends that for a moment. So it brings us right up against a breach of this well-worn principle.

My Lords, I come to another principle that I should like to put before the House and it is this: that the local need to which I have just referred should not be proved by one party on behalf of another. Again I admit that there are precedents to the contrary; I cannot deny it. But I say that that is a principle which still pertains and is observed, at least when possible. This Bill offends that principle in a great many respects. If these clauses are allowed, as I have suggested before, we may reach this situation; that it could truthfully be said that in this country there was a different law in every county, just as one says now, I think with truth, that in the United States there is a different law in every State. I would ask the House whether that is a situation which it desires to bring about. I ought to mention that also before your Lordships' House now are two other county Bills, promoted by the Counties of Surrey and Essex, both of which, although to a very much smaller degree, contain clauses of exactly the same description. It is said that if this process is allowed it will produce complexity of administration, and that that is in itself an undesirable result. It is fair to say that the Promoters' argue that the contrary will be the case, but I will leave your Lordships to judge who is likely to be right on this matter.

I should like now to quote one example of a clause in the Kent County Council Bill which illustrates what I have been trying to say. I will refer to Clause 168 of the Bill, which is a clause to confer upon all the parish councils in the county—that is, 240 bodies—the power to provide life-saving appliances. We shall all agree that, taken by itself and out of its context, that is probably a very desirable thing to do. But, save in one town in the country, which happens, curiously, to be in Kent, I am informed that that power is not exercised by any local authority and certainly not by any parish council. The question arises whether it is right for Parliament to give the power to all the parish councils in Kent, and at the same time not give it to any other council in any other county; to have it in Kent but not in Surrey or Sussex, the adjoining counties.

The question must be asked: If this is a desirable power why should it not be put in a Public Bill, applying to the whole of England and Wales, at least? It is often said, with some justice, that there is little or no chance of Parliament or the Government or a Ministry producing a Public Bill to do this, that or the other. But I would remind the House that in the last Session of Parliament there was introduced a Public Bill which conferred powers upon all the parish councils in the country: that was the Parish Councils Act, 1957. It conferred seven new powers, but the power to provide lifesaving appliances was not one of them. My Lords, it could have been, but nobody suggested it; nobody moved an Amendment to that effect. That is the point I am trying to bring home. Now we have, in the very next session of Parliament, this request that this power should be granted, not to all parish councils but to parish councils in one county only. This Bill confers sixteen new powers on the parish councils of Kent. The Parish Councils Act of last year, more modestly, conferred only seven on the parish councils of England and Wales. I will mention very briefly one other clause, a clause with which we shall all have sympathy, I feel quite certain, and that is the clause to give the parish councils power to plant trees. Nobody, or hardly anybody, would deny that that is in itself desirable; but, again, why only in Kent?

I think I have said enough—I hope I have—to justify me in asking your Lordships to consider this point before we go further. I ought to say here that it is my intention, subject always to the decision of the House, to make this rule in respect of this Bill: A county council should not confer on local authorities or any other authority functions in which the county council has no interest. I would emphasise those last three words, "has no interest." They, of course, admit clauses in which the county council has some interest, however small it may be. It will be my endeavour to interpret this rule, if it is to apply, broadly and liberally; to consider every clause in the Bill in accordance with it, and in borderline cases to give the benefit of the doubt to the Promoters. Any clause with any county council interest will receive sympathetic consideration, but it is no use my denying that if this rule is applied a fair number of clauses—it is impossible to say how many—will not be allowed. Therefore, I thought I ought to draw the attention of the House to the fact.

My Lords, I ought to add that I have not done this without consultation with the Chairman of Ways and Means in another place. I have consulted him about this proposition and about this Bill, and he has authorised me to say that he is in complete agreement with what is proposed and with the policy which it is intended to pursue; and he is making a statement to-day to the Members of another place (I think it will actually be a written statement), in accordance with the custom of the House. So that, whatever be the merits or the demerits of it, at least I can say that on this point the two houses are at one so far.

SEVERAL NOBLE LORDS

The two Chairmen.

LORD MERTHYR

I beg your Lordships' pardon—the two Chairmen; I accept the correction.

My Lords, I apologise for taking so much of your Lordships' time this afternoon, but as your Lordships know, I am not very experienced in this duty and I thought it right, before taking any irrevocable action, to tell the House what the intention was. I realise that the final arbiter in this matter is the House itself; I was going to say that in conclusion. It is what the House says that will be done. There it is. I thought it right to make this statement before going any further.

THE MARQUESS OF READING

My Lords, may I ask one question before the noble Lord sits down? Some of us who have some experience of these Bills are, I think, a little confused in our minds as to what is the procedure the noble Lord is asking the House to follow.

LORD MERTHYR

My Lords, I am not asking the House to make any change of procedure; I am merely making a statement. I am acquainting the House with something of what is going on, because I felt that I did not want to run the slightest risk of being criticised later (I will be quite frank with the House), after something had been done, if it was considered wrong. I am not moving anything; I am merely telling the House what is happening in respect of one particular Bill before the House which I thought of sufficient importance to justify that course.

3.4 p.m.

LORD SILKIN

My Lords, we are very grateful to the noble Lord for having made this statement. He has made it in a lucid and balanced manner and I think we understand exactly what he has in mind. The difficulty that we on this side find ourselves in is that we have had no warning of what the noble Lord was going to say; and he will, I am sure, agree that what he has said is extremely controversial in many respects. I do not propose to-day to enter into any controversy on most of the subjects that he has dealt with, but I would instance, for example, the Standing Order that he is proposing to put to the House. I imagine that he proposes at some future time to invite us to pass a new Standing Order.

LORD MERTHYR

Not necessarily.

LORD SILKIN

Well, I thought he suggested that a county council should not confer on any authority functions in which the county council has no interest I would suggest straight away that, whether he does it by way of inviting us to approve a new Standing Order or whether it becomes a principle upon which the Standing Committees will act, it is extremely controversial, and I should like as long an opportunity as possible to consider it, to consult with our colleagues in another place (because, as the noble Lord has said, they are as much affected as we are) and to be able to come to a conclusion before any irrevocable step is taken, either on the Kent County Council Bill or on any other Bill.

Perhaps I ought to make one or two observations. The noble Lord has given Hi what purports to be a balanced statement. I have heard a good many balanced statements presented in this House and eventually the authority has come down on the wrong side; and it can happen in this case as well. But, fundamentally, I can see no objection at all to a county council coming to Parliament and asking for powers which no other county council has. It seems to me that it is a most desirable thing. When the noble Lord told us in the beginning that he was not complaining about the number of clauses or about the length of the Bill, I presume he meant that he was not complaining about the number of new powers that were being sought, otherwise his statement has no meaning. If these powers are desirable powers—I took him to say that—then it means that there is no objection because there happen to be a large number of them. The question therefore is whether it is desirable that the Kent County Council, or any other county council, should have these powers on their merits.

LORD MERTHYR

My Lords, may I interrupt the noble Lord for one moment, because that is not quite what I was trying to say. The question is not whether the Kent County Council should have powers which no other county council has. The question is whether the other authorities in the County of Kent should be given by the county council promoting the Bill powers which no other authorities in any other county have. I hope I have made that clear.

THE SECRETARY OF STATE FOR COMMONWEALTH RELATIONS (THE EARL OF HOME)

My Lords, if I may intervene, I think we are in danger of getting into a debate where there is no Motion before the House. Under Standing Orders the Chairman of Committees has properly reported to the House what he was intending to do. The Standing Order, as I read it, says that the Chairman … may, if he thinks fit, direct the attention of the House, or the Committee to which the Bill is referred, to any special circumstances relative to any Private Bill which may appear to him to require it. He has done that. I do not believe that the noble Lord opposite is in fact going to enter into a debate, but I should have thought the proper way, if we are to have a debate, would be either for the noble Lord, after consideration, to put down a Motion on the general principle raised by my noble friend, or else, when the Bill is reported to the House, to have a debate at that stage. I think it would be much better to have a debate when there is something before the House than to have it now.

LORD SILKIN

I appreciate that, and I agree, with respect, that that is the proper course. All I was trying to do in the few remarks I wanted to make, was to give a few illustrations of the sort of thing which we might raise on the occasion of a debate. I want to emphasise the fact that there might be considerable controversy about this point, and not really to debate the matter. I would ask the Government to give us an assurance that they will not take any irretrievable step, in connection with the Kent County Council Bill and of course generally, until this House has had an opportunity of debating the matter fully. It may well be that the best step would be, before even a recommendation is made on the Kent County Council Bill, that the general question should be settled. I think that that would be more satisfactory than to try and get the point settled on a particular Bill. The Kent County Council Bill would then have to be dealt with in accordance with the principle which this House will have settled previously, rather than that it should be the other way—having a debate on the Kent County Council Bill which would also settle the principle. I hope the noble Earl the Leader of the House can give us an assurance that it will be possible to have a debate at some reasonable time, with ample opportunities for everybody to say what they wish, which will deal with the whole question at issue and into which the Kent County Council Bill would fit.

THE EARL OF SWINTON

My Lords, I am certainly not going to debate the merits of the Bill at this stage—that would be most undesirable and I believe it would be out of order, if there is any order under Standing Order No. 91. But obviously here is a matter of great importance. The merits of whether or not these powers should be given is, in itself, a pretty big question, but much more important, as I see it, is the constitutional question of whether in a Private Bill promoted by some undertaker there should be taken a power which, at least on the face of it, raises very broad general questions and would be much more appropriately the subject of a Public General Act of Parliament. At any rate, that is certainly arguable.

It is very embarrassing. I do not know under what power we take a general debate on an abstract Motion which is all occasioned by and arises out of a specific Bill at the actual time when it is going through Committee. I do not see how we can debate in the full House a Bill which is in Committee; and as the noble Earl the Leader of the House has said, the next occasion on which we can discuss the broad merits and provisions of this measure is when it comes back to the House on Report.

That is not very convenient, however, because in the meantime, the Committee upstairs will have taken cognisance of the Bill. I do not know what the Committee will be doing—whether perhaps 200 authorities are appearing before it. It may be taking all kinds of odd decisions which this House or another place may or may not like, and all its work may be abortive should this House decide that it has gone far beyond its powers and that a great deal of what it has debated—at great length and great expense to everybody concerned—is properly the subject of a Public Bill.

I believe the Lord Chairman is right to have reported this matter to your Lordships but I would ask the noble Earl the Leader of the House why it was not raised before your Lordships on Second Reading, because that seems to me to be the stage at which these grave issues should have been raised, before the Bill was sent to a Committee to debate the details. The House would then have been in a position either to throw out the Bill, which is an extreme case, or, as is often done, to give some direction to the Committee. I would ask the noble Earl the Leader of the House and the Lord Chairman of Committees: Is there a procedure by which a Bill of this kind, which raises these grave issues, can be brought before the House under Standing Order No. 91, or in some other way, on Second Reading, so that the House can have an opportunity of discussing the constitutional issues raised before the Bill goes to the Committee?

THE EARL OF HOME

My Lords, in answer to the question of the noble Earl, I believe that this is a new situation and one that has not really faced us before, when, by means of a Private Bill, very wide powers may be taken. I should like to consider first of all whether this matter should or could have been raised on Second Reading and then what should happen on future occasions. I feel that the Parties should consult together as to the line to be taken in future. I believe that the Lord Chairman of Committees has done quite rightly, for no irretrievable step has been taken yet. Again, I should have thought that, because this is new and we want to take the right constitutional steps, the best course would be to consider the form of Motion which might be put before the House at a comparatively early date; because it would seem preferable to deal with this matter through a Motion, if that is properly framed, rather than to wait until the Bill is reported. Perhaps we might have consultations through the usual channels and arrange the most appropriate machinery.

LORD FARINGDON

My Lords, may I ask the Lord Chairman of Committees whether he will do as I understand he says he intends—that is, to turn down at any rate a number of the clauses in this Kent County Council Bill—before this House has had time to discuss the new principle which he has put before the House? After all, as the noble Lord has himself said, the Bill as it stands is based on precedent. I gather that there is no new invention in any of the clauses but only that one thing which again has happened frequently—that one authority is asking power for other authorities. So far as Kent is concerned, something vital may occur before the House has taken a decision which might be quite otherwise.

LORD MERTHYR

My Lords, with regard to the point raised by the noble Lord opposite, if the normal processes of the Bill are held up in any way that will be only to the detriment of the Promoters, because time is an important factor and the Bill has yet to go to another place before the end of the Session. I suggest, therefore, that it would be in nobody's interest for the present proceedings to be adjourned in any way. I feel perfectly certain that the last people who would want that would be the Promoters. But I believe that, happily, there is a method by which the House can assert its own will in any way it pleases: that is, that it is possible to have this Bill recommitted to a Committee of the Whole House at a later stage. I am instructed and advised that that could be done, and I feel sure that it would be the best way of meeting the point made by the noble Lord, if that is desired.

LORD SILKIN

My Lords, that is not really satisfactory, because the noble Lord has already expressed a view—admittedly a balanced view. If this Bill is to be dealt with in accordance with the view that he has expressed, then it will be to the detriment of the Promoters of the Bill: we should be treating this Bill as if the principle which the noble Lord wants to enunciate had been accepted by the House. Surely it would be possible for the House to express its views about the principle before anything is done with this Bill on the basis of the principle that the noble Lord wants to accept. In other words, what the noble Lord is suggesting is, "I will do the damage and it may be possible that it can be put right on some other occasion." That is not very satisfactory.

LORD MERTHYR

My Lords, I do not know what other alternative to suggest. With respect, if the noble Lord thinks that there is an alternative, would he please make a suggestion?

LORD SILKIN

I had thought that the noble Earl the Leader of the House had suggested that there should be talks through the usual channels, and I suggest that those discussions should embrace what should be done with this particular Bill and how it should be dealt with.

THE EARL OF SWINTON

My Lords, I appreciate the possibility of recommittal but that would seem to be holding things up for a long time. The Bill goes through Committee upstairs, which may take some time, and then comes here and we recommit it, I am not sure whether a recommittal (which is really a Committee stage of the Whole House at which we discuss Committee points) is the best way of dealing with a great point of principle which, in the case of a Public Bill, is discussed upon Second Reading. When a Private Bill comes up for Second Reading, it is the practice that a Motion can be put down giving the Committee a direction to pay particular attention to particular clauses, or to do this or that when considering the Bill.

I entirely agree with the noble Earl the Leader of the House that there should be immediate consultations on how we should deal with this issue. But we want to achieve two things. We do not want to prejudice the Promoters, who may have quantities of useful provisions in this Bill; at the same time we certainly do not want to sacrifice the position of this House on a constitutional issue. Is there any way in which, if a Motion were put down and the opinion of the House taken on the question of principle, while the Bill is still in Committee, we could do what we could certainly do on Second Reading: that is, to give a direction to the Committee that they either do not deal with certain clauses or that they pay particular attention to certain clauses, as the case may be. Would that be in order?

THE EARL OF HOME

My Lords, I think that we cannot go on discussing this matter in full generally in the House. The only thing to do is to get the usual channels to agree on the best way to handle it. And, if necessary, with the leave of the House, I will make a statement to-morrow on the agreed way to handle the situation.

LORD PETHICK-LAWRENCE

My Lords, while agreeing with what the Leader of the House has said, may I put one point which I think is exercising the minds of many Members of your Lordships' House?—it is certainly exercising mine. The noble Lord the Chairman of Committees has told us certain views of his with regard to the Bill; but what follows from that? As I understand it, he is telling us that if the Committee now dealing with this Bill accept his point of view they will do certain things with regard to the Bill, and they will report in a certain way. The question is: What is it that the Committee, under the direction of the Lord Chairman, are proposing to do? Are they going to kill the Bill? Are they going to recommend hostility to the Bill, or what? Until we know that, which follows from the noble Lord's speech—until we know what they propose to do—I do not think we are in a position to say whether we approve or not.

THE EARL OF HOME

My Lords, this is a matter that has come quite suddenly upon us; it is quite unexpected, and I think that before we go further we must have consultation and decide how to deal with this novel situation. And that is what I propose to do at once.

VISCOUNT STANSGATE

My Lords, may I ask this question: Supposing this Bill, on the grounds urged upon us by the Lord Chairman, is rejected, do the Commons ever see the Bill, or is it finished with?

THE EARL OF HOME

My Lords, I think it would have the same fate as any other Bill that is rejected here; but I must have notice of that question. All these questions we will go into this afternoon, at a later hour.

VISCOUNT STANSGATE

My Lords, I am not an expert at all, but I have a long experience of London self-government, and I remember the shocking record of this House in obstructing progressive proposals as regards the London area.

LORD MERTHYR

My Lords, the only possibility of the Bill being rejected by this House is now on Third Reading, and that will be on the Floor of this House.

VISCOUNT STANSGATE

Yes, I know.