§ 2.50 p.m.
THE CHAIRMAN OF COMMITTEES (LORD MERTHYR)My Lords, I beg to move the Resolution which stands in my name on the Order Paper. These Amendments to Standing Order No. 209 are designed to remove certain defects in the existing Standing Order prescribing the procedure in Joint Committees on Petitions against Special Procedure Orders and to bring the procedure into line with the actual practice which has been developed. Under the existing Standing Order it has become the practice for the Minister to make a short statement on the scope and purpose of the Order before the Petitioner presents his case in support of the Petition, and in bringing the Standing Order into line with this procedure the provision of the Statutory Orders (Special Procedure) Act, 1945, that the onus should be on the Petitioner to oppose the Order, is safeguarded by limiting the Minister's opening address to a brief factual statement which has been agreed with the Petitioner and the Counter-Petitioner, if any.
It is agreed that this clarification of procedure can properly be made under Section 9 of the Statutory Orders (Special Procedure) Act, which empowers both Houses to make Standing Orders connected with the provisions of the Act and, in particular, paragraph (f) for regulating the proceedings of such a Joint 9 Committee. The Amendment to Standing Order No. 210 provides for the order of proceedings in a Joint Committee in the event of a Counter-Petitioner being heard against a Petition which is not covered by the existing Standing Orders.
In view of the fact that the new Standing Order on the Order Paper is rather formidable in length, I might perhaps add that much of it is really unchanged, but it has been found to be more convenient, and I think more efficient, that the whole of the original Order should be taken away and replaced by an entirely new Order, rather than have a lot of amendments to the old Order. Your Lordships may therefore like to know that the proviso to paragraph 1 and paragraphs 2 and 4 of the old Order are unchanged by the new Order. The important Amendment is in paragraph 1. Paragraph 3 of the new Order is new but, I think, comparatively unimportant.
The difficulty that has arisen is due to several causes, but perhaps the chief one is that at present, if the existing standing Order is strictly carried out, the Petitioner has to attack a case before he has heard it, which I am sure your Lordships will agree at once is not a satisfactory procedure. It has also been found to be confusing for a Committee to hear this happening, the Committee, as is right and proper, not knowing what the case is before they sit. It is to try to remedy these defects that these Amendments are proposed. Perhaps the most important change is the introduction into the Standing Order of what has been happening in effect over several years—namely, the brief factual statement which is made at the opening of the proceedings by the Minister. That statement has to be agreed by the Petitioner before it is made so it must be factual. This is the first of the six possible stages which it is proposed will operate in the future.
The drafting of this new Standing Order has not been particularly easy, because we have had to be careful to preserve the onus, which under the Act has always been upon the Petitioner, and we must not amend the Standing Orders in such a way as to transfer the onus from the Petitioner to the Minister. If there are any points which are not clear I shall be glad to try to answer them.
§ Moved, That the following Amendments be made in the Standing Orders relative to Private Bills, etc:—
§
Leave out Standing Order 209 and insert the following Standing Order:—
("209—(1) Where under section 4 of the Special Procedure Act any Special Procedure Petition stands referred, or has been referred by order of either House, to a Joint Committee, the Committee of this House shall consist of three Lords to be named by the Committee of Selection and the order of proceedings shall be as follows:—
§ Provided that the Minister may give notice in accordance with the following paragraph that he desires that the rights and functions conferred on him by sub-paragraphs (a), (c), (d) and (e) of this paragraph shall be exercised by any Applicant specified in the notice, and thereupon the said sub-paragraphs shall have effect as if that Applicant were substituted for the Minister.
§ (2) Any such notice shall be delivered, or despatched by registered post, to the Petitioner or his Agent at the address endorsed on the Special Procedure Petition and to the Applicant specified in the notice at his address as endorsed on the Special Procedure Order, within a period of four days beginning—
- (a) with the day on which the report of the Chairmen is laid before Parliament under subsection (5) of section 3 of the Special Procedure Act; or
- (b) if the report is so laid on different days, with the later of the two days;
§ (3) The Minutes of Evidence taken before the Committee shall he laid on the Table.
§ (4) If any member of the Committee of this House is prevented from continuing his attendance, the Joint Committee may, with the consent of all parties, continue its sittings in his absence, provided that the number of the Committee of this House he not less than two and that the Joint Committee 11 report accordingly to this House at its next meeting; but if the consent of any party is withheld, the Joint Committee shall adjourn and shall not resume its sittings in the absence of such member without leave of this House.").
§ Standing Order 210—page 85, line 33, at end insert ("either before or after the Minister or Applicant has been heard as the Committee may direct").—(Lord Merthyr.)
§ LORD SILKINMy Lords, if the drafting of this Order has been difficult, I can assure the noble Lord that the reading and comprehension of it has been even more difficult. We are therefore obliged to the noble Lord for having explained the object of these Amendments and how they arise. I think I understand it, and I think most of your Lordships will, after the lucid explanation that we have heard; but there is one point which rather puzzles me.
The noble Lord explained that hitherto one of the difficulties has been the making of a case in opposition to something that has not yet been made. I take it that the 'Minister's statement is intended to provide for that omission. His statement, however, will be a purely factual one: he will not be acting as an advocate for the Order and will make a statement which has been agreed by the Petitioner and the Counter-Petitioner. If after that emasculated statement, as it is bound to be, we are going to get the case for the Order, I shall be very surprised. That being so, I cannot see in what way a Petitioner will be any better off. He will get merely a brief factual Statement of what is contained in the Order, which of course be can ascertain by reading it, provided it is intelligible. He will not get to understand what is behind it, what is its purpose, and he will not be able to make his case in opposition to any advantage. I may have misunderstood the noble Lord, but that is how it strikes me. I wonder whether it really is necessary to try to get agreement between the Minister, the Petitioner and the Counter-Petitioner on a factual statement, and whether it will not create considerable difficulties which do not arise at the present time.
THE CHAIRMAN OF COMMITTEESMy Lords, as the noble Lord is aware, in the case of Private Bill procedure the Promoters of the Bill open the proceedings, because the onus is upon them 12 to prove their case before the Petitioner is required to answer it. Under this procedure, on the other hand—that is, under the procedure under the 1945 Act—the onus is not upon the Minister who produces the Order, but upon the Petitioner, and the Committee have to bear that in mind throughout the proceedings. They have to remember, of course, that it is for the Petitioner to defeat the Order, if he can, and not for the Minister to justify it. That really the root of the trouble, if trouble it is.
The original Standing Order was drafted in accordance with the Act in an endeavour to carry out the wording of the Act as best we could. Therefore the original Standing Order provided that the Petitioner should open. The position was that the Petitioner was arguing against a case which had not been made in the Committee Room. That was the real difficulty. It was increased because the Committee, following the usual practice, had been chosen, as is proper, from those noble Lords and Members of another place who did not know anything at all about the Order; they did not know what was the case for the Minister or for the Order. It was therefore difficult to begin by hearing the Petition against the Order.
Now, though not according to the Standing Order, the practice has grown up in the rooms upstairs whereby the Committee ask the Minister, or his counsel, to open the proceedings by telling the Committee, to put it shortly, what the Order is about. That is what has been done. I understand that has proved to be convenient, but it is not statutory. There is nothing in the Standing Order at present to give effect to it. It begins by saying:
The Petitioner shall be entitled to be heardand then the Minister. Representations have been made for some little time to see whether we could improve this procedure. We thought we could do it in another way, but that has not proved possible because it was essential—and we are all agreed on this—that the place where the onus has lain all along under the Act must be unchanged; it must remain on the Petitioners. That has been the difficulty. Therefore, it is now proposed to give statutory effect to what has been a custom and practice, for a 13 short factual statement to be made so that everybody in the room will know what it is all about. I should like to tell the noble Lord this. The next stage, after that statement has been made, will be for the Petitioner to call his case and to bring his witnesses.
§ LORD SILKINMy Lords, I hope the noble Lord will not mind my interrupting him, but I am anxious to put my difficulty very clearly before him. I cannot see the value of the Minister making a factual statement which has to be agreed by the Petitioner and Counter-Petitioner. I cannot see that that furthers the proceedings at all. If the purpose is to explain what the Order is all about, and to provide an adequate background against which a Petitioner can make his case, I should have thought that what was wanted was that somebody should stand up and make the case for the Order, not merely to explain the Order in this, as I said, emasculated way. But that is precisely what is not proposed under this Order. The Minister makes a statement which is entirely non-controversial, out of which all the "guts", so to speak, have been taken. He merely explains, after agreement with all parties, what the Order is about, and it is not a great help, so far as I can see, to the Petitioner to make his case.
THE CHAIRMAN OF COMMITTEESMy Lords, first of all, perhaps I should explain that after the factual statement has been made the Petitioner will then present his case. After that the Minister will present his case. If your Lordships will look at the Amendment, that is laid down in paragraphs (a), (b), (c) and so forth. So we have first the factual statement, then the Petitioner's case, then the Minister's case, after which the Petitioner may be heard in reply, and the Minister may then comment on the reply. There are admittedly six different stages.
§ LORD SILKINMy Lords, the noble Lord will forgive me interrupting again, but the real point is that the Petitioner has to make a case against something that has not been made, so to speak. If that is the difficulty that you are trying to meet, I cannot see how this Amendment meets it by providing for a mere factual statement by the Minister. If it 14 were a statement which made the case for the Order, I could understand it. If it is a pure factual agreed statement, how does it meet the difficulty which the noble Lord himself said has been the cause of the Amendment of the Order?
THE CHAIRMAN OF COMMITTEESMy Lords, needless to say, I do not in the least mind the noble Lord interrupting me, but I was going on to say this. It could have been done possibly by the Minister's case coming first. But there is one rather important flaw in that procedure, and it is this. If the Minister makes his case first, and before the Petitioner's case is heard at all, there will be a tendency at least to assume that the onus is on the Minister. That is the important point. The unusual thing in this procedure—and it is all laid down in the Act—is that the onus is on the Petitioner and not on the Minister. It is thought, I believe rightly, that if the Minister opens his case in full before the Petitioner is heard at all it will be assumed, wrongly—there will be a tendency to assume it, perhaps without knowing it; quite unconsciously—that the onus is on the Minister. This point is considered of considerable importance, and I am sure that if I came here to-day with the Standing Order in the form which the noble Lord, Lord Silkin, requires, I should not be able to obtain agreement to its passing. It might be that I am not in any case able to do that, but I am quite sure that I should not be able to get the agreement of the House if I came here with the Standing Order, so to speak, the other way round.
§ VISCOUNT ALEXANDER OF HILLSBOROUGHMy Lords, I must say that I am very disappointed to-day at the position in which we find ourselves. For one thing, the lay Members of your Lordships' House will, I am sure, have had some difficulty in following the rather professional discussion which has been taking place between the Chairman of Committees and my legal friend Lord Silkin. If we could have had printed on the Paper an actual representation showing everybody concerned in the matter the difference between what is now proposed and the existing Order, possibly by the use of different type or by drawing special attention to the real change, we could have understood it better. While I have no intimate knowledge of the working of these particular 15 Committees in considering these Petitions, I have had a considerable amount of experience of handling my own cases before a good many statutory tribunals. It is not quite the same thing, but I must say that I have never come across the tribunal yet in which a petitioner's case, being heard first, is not already fairly well anticipated and replied to effectively by the counsel on the other side. I should have thought that, unless there were special circumstances here, the case has not yet been proved, to me at any rate, that there is a need for this particular Amendment.
§ 3.9 p.m.
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)My Lords, I wonder whether my noble friend the Lord Chairman would allow me to help, for one reason only, which is that fifteen years ago I was largely responsible for the Special Procedure Act, 1945. I left it to the Government of which the noble Viscount, Lord Alexander of Hillsborough, and the noble Lord, Lord Silkin, were both members. They were good enough to approve of the scheme that I put forward and to put the Bill before Parliament, and it was passed. I hope the House will bear with me. I am speaking from memory, but I think this meets the point which the noble Lord, Lord Silkin, had in mind.
We were very anxious that this special procedure and the Orders should start with the advantage of being what was acceptable unless the contrary was proved; that is, we were anxious to preserve the Petitioner's right but not to put the onus on the Minister of proving his Order. The noble Lord, Lord Silkin, will remember the policy at the time the Act was passed. We all thought, in all quarters of both Houses, that there would be a great rush of Procedure Orders to deal with the time lag after the war; therefore we wanted the Minister to start in that position: that his Order would never be refused without a case being made out against it. That is why one came to the procedural position that the Petitioner had to begin.
That caused a practical difficulty: that if a Petitioner starts to attack something before people who do not know anything about it, they are in a difficulty. That was the difficulty which our policy 16 to meet the situation created. Therefore, the practice grew up—and I think this is the point that meets the doubt of the noble Viscount who leads the Opposition—of dealing with that practical difficulty by making a statement of this kind, and that was found convenient to all the parties engaged. Therefore, in order to validate the practice which had been found necessary through the difficulty of the situation, this Order has been changed. As I understand it, and I think my noble friend the Lord Chairman of Committees will agree, this does not change or make any worse the position of either party. It simply means that the Committee will have a factual, but not an argumentative, statement of the matter before them. If the Petitioner on that develops the case, then the Minister will have every chance of meeting it. I hope my noble friend will forgive my intervention. I thought it might help if I reminded noble Lords of the background of fifteen years ago.
§ LORD MILNER OF LEEDSMy Lords, speaking with some experience, may I say that although this does not go far enough, I think it is a step in the right direction. It is helpful in the special case which the noble Lord, the Lord Chairman of Committees, has outlined. May I ask whether steps have been taken or are being taken in another place in order to see that their procedure is in accord with this?
THE CHAIRMAN OF COMMITTEESMy Lords, I am most grateful to the noble and learned Viscount, the Lord Chancellor, for explaining to the House much more clearly than I had done the effect of this change. The noble Viscount, Lord Alexander of Hillsborough, said that this was unusual. I venture to say that, although it is, the reason for its being unusual is, in my submission, that the Act upon which it is based is unusual. As I think the noble and learned Viscount the Lord Chancellor explained, the Act was passed early in 1945 when circumstances were unusual. And of course it is unusual principally in this sense: that whereas in the ordinary law the onus of proof is on the plaintiff in the ordinary way, with some exceptions, here the onus is upon the Petitioner, the party who is opposing something. That is fundamentally the reason for this somewhat unusual procedure. In answer to the noble Lord, Lord Milner of Leeds, may 17 I say that I know that a Motion to the same effect as the one I have moved today was moved in another place yesterday. I cannot actually say that it was passed, but I have no reason to suppose it was not.
§ VISCOUNT ALEXANDER OF HILLSBOROUGHMy Lords, I am greatly obliged to the noble and learned Viscount, the Lord Chancellor, and to the noble Lord, the Lord Chairman of Committees, for their explanations, but they do not convince me a bit. The noble and learned Viscount said this was done under an Act passed by a Government of which I was a member, but I was not a member of that inner Cabinet which dealt with things of this sort. I was busy running a great establishment called the Royal Navy. I was never brought into this matter. If I had been, I would have drawn on my lay experience of dealing with tribunals, of which I have great experience. I really do not know how both parties are going to be satisfied by a Minister's statement, carefully prepared and jointly submitted to a body which ought to be so excellent in its personnel as to be able to understand any case, for and against, put to them. Surely they are not elementary schoolboys. I am hardly convinced at all by the arguments so far. I am willing to be convinced. I wish the noble Lord, the Lord Chairman of Committees, could have had a word with us before. Perhaps he did not anticipate difficulty, but I should like further explanation, and if he could adjourn the matter for twenty-four hours I should be obliged.
THE CHAIRMAN OF COMMITTEESMy Lords, I should have said there was no objection whatever to adjourning it and I do not think there is, except this: that to-morrow one of these Joint Committees is actually sitting. It is not essential for them to have the new procedure, but I believe it would be for their convenience if they did. It would put into statutory form what they will probably actually do in any event, because I expect the factual statement has already been prepared.
§ VISCOUNT ALEXANDER OF HILLSBOROUGHMy Lords, do I not understand that in fact one of the arguments put in favour of this amended Order today is that you have been doing it in 18 practice already? I do not see how the failure to formally pass the Motion can hold the practice up to-morrow. Why not give us a chance of having a real discussion before you make this final?
THE CHAIRMAN OF COMMITTEESMy Lords, to-morrow there is a Joint Committee of both Houses—I think the Chairman has to be appointed by the Committee, so do not know the Chairman—on the Newcastle and Gateshead Water (No. 2) Order, 1959. I should have liked them to have the new procedure to work on, but I admit straight away that if they do not I do not think it will be disastrous. Therefore, as there is some doubt about it, I would ask leave to withdraw the Motion and put it down another day.
§ VISCOUNT ALEXANDER OF HILLSBOROUGHThank you very much.
§ Motion, by leave, withdrawn.