§ 2.55 p.m.
THE CHAIRMAN OF COMMITTEES (LORD MERTHYR)
My Lords, I beg to move the Motion standing in my name on the Order Paper. This Motion is worded in exactly the same way as that which I moved in similar terms on February 16. I have thought it more convenient, in spite of the length of the Order, to move that the existing Order be removed entirely, and that the new Order be substituted for it. Your Lordships will see, on comparing the one with the other, that in the new Order only paragraphs 1 and 3 are new; the remainder of the new Order is the same as the old. This new Standing Order is designed to follow what has become the existing practice which is being followed in this matter. The main feature of it is that the proceedings commence with an agreed factual statement, and that is not provided for in the existing Standing Orders. It may be asked, why should there be the necessity for an agreed factual statement. The answer is, so that the opening statement by the Minister should not be controversial, because it is no part of his case made at that point. His case is made later.
Then it may be asked—and I think the noble Lord, Lord Silkin, was doubtful about this point on the last occasion—what happens if there is a refusal to agree upon a statement. The answer there is that the Committee can, if necessary, waive the necessity for the opening statement, because the words, as your Lordships will see, are "if required by the Committee." Then it may be asked, and I think it was argued on the last occasion, why should not the Minister open the proceedings. The answer to that is that we have to be very careful to preserve the fact that the onus is not on the Minister but on the Petitioner. I think it is so important to make that clear that, with your Lordships' permission, I will quote shortly from what fell from the Lord Chancellor on February 16. It is in column 15 [Vol. 221] of Hansard, and the noble and learned Viscount said this:We"—that is, the Government in 1945—were very anxious that this special procedure and the Orders should start with the advan- 870 tage of being what was acceptable unless the contrary was proved; that is, we were anxious to preserve the Petitioner's right but not put the onus on the Minister of proving his Order … his Order would never be refused without a case being made out against it.That shows that there is really no doubt that the onus lies now, and always has done since 1945, upon the Petitioner. That is why there is a difficulty in framing a suitable Standing Order. But I believe this is the most efficient way of carrying on these proceedings.
The House will see that in the first paragraph there are set out no fewer than six separate stages, and I believe that it is desirable to have these. I might mention, in this connection, that the day after our discussion on this matter last time I went to listen to the proceedings in one of these Committees. I found that the practice which I had on the previous day proposed and then withdrawn was being carried out, and I was perfectly satisfied, after hearing this agreed statement read out, that the procedure was satisfactory and, indeed, was the best which, so far as I am aware, can be contrived. The Committee were, by this agreed statement, acquainted quite shortly with the facts of the case which they needed to know about in order to decide the issue and to do justice to both sides. I beg to move.
§ 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—
(3) The Minutes of Evidence taken before the Committee shall be 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 be not less than two and that the Joint Committee 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.)
§ 3.0 p.m.
§ LORD SILKIN
My Lords, we are very much obliged to the noble Lord for the statement that he has made. As he said, this new Standing Order came before the House three weeks ago. It had come to us with very short notice, so that those of us who are interested in these matters had had little or no opportunity to study the new Standing Order, and it was natural that we should 872 raise a number of questions on it. I may say, in passing, that it would have been convenient, and it would be in future, to insert in special type, if possible, any Amendments that are made to a Standing Order so that we can see at a glance what the old Order was and what changes are being made. As it was, in the time that was available to us I am afraid we had not had that opportunity; hence it was necessary to ask for further time to enable us to study the matter.
May I say, further, that there was never any doubt in our minds, certainly not in mine, that the onus should be on the Petitioner; that it was not for the Minister to make his case on any Order. We perfectly well understood that it was for him to explain the Order but not to justify it; it was for the Petitioner to justify the opposition. Having had time to study this matter, and having had the opportunity of a number of discussions with the noble Lord, Lord Merthyr (and I should here like to thank him for his courtesy and patience throughout those talks), I myself am quite satisfied, and I am sure my noble friends will be (this is not a Party matter anyway), that this new Standing Order is in the public interest, does exactly what the noble Lord says it does, and will, I think, facilitate the business in dealing with these Orders. In the circumstances, we are perfectly willing that this Order shall go through and we believe that it will do the job.
§ THE EARL OF SWINTON
My Lords, I want to add only one word. I entirely agree that this Order carries out what has been, I think, the regular practice on opposed Orders. I think it is certainly the most convenient and the fairest way in which effect can be given to the 1945 Act. I want to say this, however; I hope that by approving this Order we shall not, necessarily, be held, in every part of the House, to be taking the view that if we were considering the matter afresh to-day we should be prepared to pass the Act of 1945 in the form in which it was passed. That Act, I think, was absolutely necessary, or reasonably necessary, at the time it was passed because there were tremendous arrears of work to be got through. A great many Orders had to be made, and obviously, unless they were objected to, it was desirable, for the convenience of 873 administration, that they should go through as quickly as possible.
But I am not at all sure now, when we get into a more or less normal peacetime administration, and when it is up to the Government to justify the administrative action which they take—and an enormous amount of power under legislation is given to Government Departments to do things by Orders, the Act being of a general character and being permissive—that when an Order is objected to, the onus ought always in the first instance to be upon the Petitioner. Where an Affirmative Resolution is required to an Order, obviously the Minister has to make his case in Parliament. And where a Petitioner has a case which is prima facie, I will not say a good case, but a case which it is the duty of the Minister to answer, then I am not at all sure that, if we were considering the matter afresh, Parliament would not to-day take the view that where an Order is being proposed the Minister ought to justify the action which he is taking and make his case, and the Petitioner, of course, would be able to answer it.
I entirely agree with the noble Lord that there is no question of Party in this at all, but Governments, whether it be in taking land or one hundred and one other ways, inevitably to-day interfere enormously, not only with property rights but with personal rights, with the convenience of all of us; and where that is done I think that, on general principles, it is up to the Government of the day, whoever they may be, to satisfy Parliament—and a Committee of this House or a Joint Committee is Parliament—that what the Minister seeks to do is right. I say that, while entirely accepting this Order—and I should certainly support it—I should not like it to be thought that everybody in this House regards the Act of 1945 as a good Act and one which necessarily should continue for all time.
§ 3.5 p.m.
§ LORD MORRISON OF LAMBETH
My Lords, the noble Earl who has just resumed his seat said that he thought the Act of 1945 was necessary and unobjectionable. I am very glad to hear that, because I think it was one of the measures of the Government of which 874 I had the honour to be a member. But my recollection was that it was not treated at the time as a Bill that was entirely uncontroversial. I think there was a fair amount of discussion and some degree of harsh criticism about that measure. But it often happens that, while at the time there is criticism, and even denunciation, a few years later better counsels prevail and, as in the noble Earl's case, it is thought that the Bill was necessary and desirable.
I should like to reinforce one point made by my noble friend Lord Silkin; that is, the desirability, in these proposals to amend Standing Orders of indicating clearly what the changes are, because on reading them there is no indication of what the changes are. There are two words in italics, but whether that signifies anything by way of changes I do not know. I would suggest to the noble Lord who brought in the Standing Order that it is simply done. These things had to be done often, as my noble friend Lord Silkin will remember, in the case of the London County Council. They have many Standing Orders, many regulations and many committee rules. In fact they beat either House of Parliament hollow in the numbers they have; and that is understandable, because a good many of their Standing Orders are really incorporating administrative decisions into Standing Orders so that unless it is otherwise ordered, they will not repeatedly come before committees of the Council. But it was very easily done. When revised Standing Orders came before the General Purposes Committee of the Council, it was stated on the document that new words in the Standing Order were indicated by underlinings—they were not italics, they were underlinings—and omission of words was indicated by putting those words in square brackets. I always found, as I think my noble friend did, that it was perfectly easy to follow those changes that were brought forward by the sub-committee or officers of the Council. I hope very much that the noble Lord will take these suggestions back to the Government, with a view to their being sympathetically considered, because it is most desirable, in the case of either House of Parliament, that we should know as easily as possible what we are doing.
§ 3.10 p.m.
§ LORD MILNER OF LEEDS
My Lords, there is one factor in this matter which has not been mentioned. As noble Lords will appreciate, the Petitioner is perhaps not always in a financial position to produce plans and drawings or any information that may be called for. I presume, therefore, that it would be the duty of the Minister, in putting forward an agreed statement—indeed, it may be that the Petitioner could insist upon it—to put such information before the Committee as would save the Petitioner money. In this way the proposed new Standing Order may well result in a saving of time and money, and may be of great convenience to people of modest means who desire to put forward a Petition against an Order made by a Government Department. Further, it must be appreciated that where a Private Bill is promoted the onus is clearly on the Government Department. This proposed change in the Standing Orders does not in the least affect that position; it refers only to the case where a Petitioner desires to object to a Ministerial Order. In those circumstances, therefore, it may be that a purely factual statement, putting forward to the Committee maps, plans, drawings and so forth, may save a great deal of money and time and be of convenience to a Petitioner.
§ 3.11 p.m.
My Lords, perhaps I might be allowed to reply briefly to one or two of the points that have been taken. With regard to the short notice given last time, I should have said before this that I was sorry that the notice was, admittedly, very short. But, as I explained then, I put the Motion down on that day in order to have it, as I hoped, in the Standing Orders by the time a case was heard upstairs. But I was most sorry that the notice was so short.
The suggestion made by the noble Lords, Lord Silkin and Lord Morrison 876 of Lambeth, with regard to putting the differences in a different kind of type or by underlining them and so on, I will undertake most carefully to consider; and I will do my best to adopt what apparently seems to be an excellent idea. I hope the noble Earl, Lord Swinton, will forgive me and not think me discourteous if I do not follow him in his discussion on the policy of the Act, simply because I do not think that it is my function to do that. As I see it, it is my function to get the Standing Orders drafted and arranged to follow the policy of the Act, whatever it may be.
With regard to what the noble Lord, Lord Milner of Leeds, said, I am quite sure that, in practice, the Minister's representatives do their utmost to assist a Petitioner in arriving at an agreement, and I feel sure that the major burden of that falls upon the Minister or his representatives. Of course, as I said, there may be occasions when it is impossible to achieve agreement, and in that case the statement can be dispensed with. But the noble Lord did say one thing which, if I may dare to do so, I should like to correct, for fear that a misleading statement may get into Hansard. The noble Lord, as I heard him, said that in the case of a Private Bill the onus was on the Government Department. Of course, the onus is on the Promoter, whoever the Promoter may be; and normally, therefore, it is not on the Government Department, because a Government Department may be adverse to the Bill. I should like to make that correction merely to get the Record right.
§ LORD MILNER OF LEEDS
My Lords, I am obliged to the noble Lord. It was a slip of the tongue. I did, in fact, mean the Promoter of the Bill.
§ On Question, Motion agreed to: the said Standing Orders amended accordingly.