§ 2.25 p.m.
§ Order of the Day for the House to be put into Committee read.
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, in rising to move that the House do resolve itself into a Committee on this Bill, may I say one word? At a quarter-past-one I was told that it would better suit the members of the Opposition, and especially the noble Viscount who leads the Opposition, if this Committee stage were postponed. My Lords, I confess that it is impossible—all the arrangements have been made, and there are other reasons which are obvious to your Lordships—for the Committee stage to be postponed beyond to-day. But I at once suggested that I should be prepared, after the House went into Committee, to move that the debate be adjourned until the conclusion of the debate on Agriculture, if that would suit the convenience of the noble Viscount better. I gather 362 there are further difficulties which have arisen. I am quite prepared to take the course that suits the noble Leader and the Opposition best, but I think you; Lordships will appreciate that, with a Bill of this kind, it would be impossible for me to have the Committee stage adjourned beyond to-day.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
VISCOUNT ALEXANDER OF HILLS-BOROUGH
My Lords, I am sorry to trouble the House with this matter. We gave notice last December that we should like a debate on Agriculture arising out of questions and answers at the time, and therefore we wanted a day of reasonable length at a convenient time. We were not able to get what we asked for, but we agreed, in negotiation, that we would take it to-day after Government business, which would not be long. Now I fear that the business may be long, unless the House can restrain itself, and I have no special right to ask for that. I believe the situation is now that the noble and learned Viscount who sits on the Woolsack would be willing to take the Committee stage later in the day, but that is not convenient for the people who want to move the important Amendments to the Northern Ireland Bill. So I am in a difficulty. I should have liked further time to think it over, but if it is so essential that the Committee stage be taken to-day, may we ask for the gracious help of your Lordships, to see that it does not last long? I make a special appeal to the movers of the Amendments and I hope that they will be restrained in length. I hope, too, that the same restraint will be displayed by those who do not agree with the Amendments.
§ THE LORD CHANCELLOR
My Lords, I am grateful to the noble Viscount for the manner in which he has taken this, and I bear him good news: the Lord Chairman tells me that the first two Amendments standing in the name of my noble friend Lord Craigmyle are not going to be moved. I hope that we shall meet the noble Viscount's suggestion with the greatest possible speed.
§ On Question, Motion agreed to.363
§ House in Committee accordingly.
§ [The LORD MERTHYR in the Chair.]
§ Clauses 1 to 12 agreed to.
§ Clause 13:
§ Relaxation for certain purposes, of restrictions on diversion of property of religious or educational bodies
§ 13.—(1) Such of the restrictions imposed by subsection (1) of section five of the Government of Ireland Act, 1920, and Article 16 of the Articles of Agreement for a treaty between Great Britain and Ireland set out in the Schedule to the Irish Free State (Agreement) Act, 1922, on the power of the Parliament of Northern Ireland to make laws as preclude it from making a law so as directly or indirectly to divert the property of a religious denomination or educational institution shall cease to extend so as to render void, in relation to the property of a religious denomination (other than the fabric of a cathedral church) or the property of an educational institution, a law made by that Parliament in so far as it provides or enables provision to be made for—
- (a) the compulsory acquisition (on payment of compensation) of land for the purposes of housing or slum-clearance, or the development or redevelopment of any area; or
- (b) the control of the use of land
§ LORD CRAIGMYLE had given notice of his intention to move, in subsection (1) to leave out "(other than the fabric of a cathedral church)". The noble Lord said: My Lords, my purpose in putting down this Amendment was, if I may use the phrase, to "show willing". I do not think that Clause 13, if your Lordships keep it in the Bill, is incapable of amendment, but I do not want at this moment to get bogged down in discussion of details. I would much rather confine myself to following the noble Earl opposite in discussing the principle of Clause 13 on Amendment No. 3. With your Lordships' permission, therefore, I will not move Amendment No. 1 or Amendment No. 2.
THE EARL OF LONGFORD moved to leave out Clause 13. The noble Earl said: I do not think I need take up the time of the Committee for very long to-day, because there will be at least one other opportunity here, I suppose, and there should be many opportunities in another place. But this is a matter of great significance, and, whatever business followed it, I should find it very difficult, in so far as I had any power,
to agree to give this some kind of secondary place. May I call the attention of the House to a leading article which appeared in The Times yesterday? It contains these phrases:
Among the religious guarantees included in the Government of Ireland Act, 1920, is one restricting the compulsory purchase of property belonging to religious bodies to the purposes of roads, railways, and public utilities".
The Times goes on:
It is now proposed"—
that means, proposed under the Bill before your Lordships—
to extend powers of compulsory purchase of this kind of property to the purposes of 'housing or slum clearance, or the development or re-development of any area'".
The article continues:
At the same time the Northern Ireland Government is to be given power to impose controls on land use without payment or compensation".
§ That brings us to the next clause, which I will leave to the noble Lord, Lord Kilbracken. But I hasten to say that I support very strongly what he is going to say. I have no doubt that he will say, as he has done in a letter to The Times this morning, that for once the most famous newspaper in the world has not summarised the Amendment quite adequately.
But let me go back to Clause 13. It will be recalled that, on Second Reading, I asked the noble and learned Viscount the Lord Chancellor whether there were any adverse reactions from the interested parties, such as the religious bodies, to the proposals in Clause 13. Let me repeat that the clause would give power to the Northern Ireland Government to obtain property, for slum clearance and other matters, from religious bodies on payment of compensation. The noble and learned Viscount, who is always so extraordinarily helpful and fair, replied as follows. He said [OFFICIAL REPORT, Vol, 236 (No. 31), col. 1147]:
So far as I know—I asked for information after he was good enough to give me notice —there has not been any reaction from the religious and educational bodies on this point that has come to the knowledge of those who have been preparing the legislation. Of course, if I hear of any I shall tell the noble Earl at once. They know of none".
In fact, when the noble and learned Viscount heard of a reaction which I shall mention, he was, of course, quick
to write and tell me so, as, naturally, we should all expect of him. In other words, when this matter came up before, I asked whether there was any reaction, and I was told that, so far as those concerned with preparing legislation were aware, there was no reaction.
That being so, it may have surprised some students of affairs, including Members of this House, to see a column in the Home News of The Times for this Monday headed:
Grave Disquiet over Ulster Bill: Catholic Bishops' Fear of Abuse".
So, in fact, there has been a very strong reaction, as perhaps might have been forecast, because The Times itself has called the process involved in Clause 13 "Diluting a Guarantee". Those to whom a guarantee is given very seldom welcome its dilution. Therefore, I think it is of no surprise that there has been an extremely adverse reaction from some of those concerned. On paper, it does not affect only one particular denomination, and there may be other protests; but all that I have been informed about are the protests of the Catholic Bishops in Northern Ireland.
§ The Times went on in this excellent leading article to refer to "a sharp and tardy protest"; and I felt it necessary to write a letter, which The Times was kind enough to print to-day, pointing out that, although in fact the protest was late in time, it could not have been made earlier. I know this story very well, because two of the Catholic hierarchy came over to London last Friday and, after seeing me, were courteously received at the Home Office. I suppose that most Members of the House would have assumed that, in a matter of this kind, the interests most affected, or the interests affected as much as any others, would be consulted. I think everybody would have assumed that at least they would have been informed; but the first that the Catholic hierarchy knew of this clause was what they read about it in the papers. Then, things being what they are in that part of the world, it was not possible for them to obtain a copy of the Bill at all quickly. Here in this country one would telephone some Government Department and one would receive a copy of the Bill within an hour if, by an oversight, one had not been informed earlier—this is rather relevant 366 to consideration of the clause—but the Catholic Bishops over there had to apply to the Ulster Stationery Office and order a copy.
§ It may or may not have been due to the postal "go slow" that it took from January 24 to about February 4 or 5 for a copy to reach them; and so, if they have been tardy, the tardiness has not been their fault. These things are rather important, I think, because they bear on the question whether they can place implicit confidence in a Government which treats them in this way. At any rate, they received a copy of the Bill and were very much disquieted; and they duly came over to London and made their protest to the Home Office.
§ I am not going to labour the argument at this moment, because I know that the noble and learned Viscount will want to say something, and, of course, there will be other chances in this House and certainly chances in another place; but I myself must emphasise that, if this goes through, it will be a departure from the guarantee which was given to the minority in 1920. I am not going to argue law, certainly not with one of the great lawyers of to-day, but am going to talk in terms of moral obligation. I would say that, at that time, a moral obligation was entered into, and that, if this clause goes through without any kind of qualification, that moral undertaking will be betrayed. Therefore, at this stage, in order to promote discussion and clarification, I move the rejection of the clause.
Leave out Clause 13.—(The Earl of Longford.)
§ 2.37 p.m.
§ LORD CRAIGMYLE
The noble Earl opposite has put before your Lordships' Committee very clearly the objections which he sees to this clause; objections of principle, that the thing is ill-considered. We are being asked in this clause, and in Clauses 14 and 15, to amend the Constitution of Northern Ireland. Amending a Constitution is rather like marriage: it is not to be taken in hand lightly, unadvisedly or wantonly. Here, we are being asked, at a few days' notice, to amend the Constitution of Northern Ireland. Moreover, Section 5 of the Government of Ireland Act is what might be called in some circum- 367 stances an "entrenched clause"; a clause put there for the specific purpose of protecting minorities.
The minority which the noble Earl had in mind, and which I also have in mind, is the Roman Catholic minority, and that brings straight to the forefront the very awkward position of the religious controversy in Northern Ireland. It is a tragedy—and I am afraid it appears to me, from what I have heard, as if it is true—that the progress towards greater understanding between denominations in Northern Ireland has been far slower than it has been in the last 40 years in this country, and there are aspects of life in Northern Ireland which are to this day utterly dominated by the religious question. Therefore, if now at so short a notice we are to attempt to amend Section 5 of the 1920 Act, as we will be doing by Clause 13 here, and so hastily, we shall be doing a grave disservice to the people, the majority as well as the minority, in Northern Ireland.
§ LORD KILBRACKEN
I wish to rise very briefly to express my support of the noble Earl, because I think it may be helpful to show that it is not only Irishmen of the noble Earl's religious persuasion who oppose this new Bill.
§ LORD RATHCAVAN
I think it is perhaps rather unfortunate that the noble Earl, Lord Longford, should have raised this religious issue. It seems to me a very simple thing. Under Section 5 of the Government of Ireland Act, 1920, the Northern Ireland Parliament were forbidden to make any laws discriminating against any religious bodies, with this exception:except for the purpose of roads, railways, lighting. Water, or drainage works, or other works of public utility …In other words, the Parliament had power to take land from religious bodies for any of those purposes. All this Bill does is to add to those exceptions:land, for the purposes of housing or slum clearance, or the development or redevelopment of any area".I believe that the only reason why it has been necessary to put this into the Bill is that the courts ruled that the definition in the Government of Ireland Act, 1920, of "a public utility" did not include housing. It is merely proposed to bring housing within that definition of 368 public utility, and to make housing and slum clearance very necessary in the development of the community, and to put them on the same footing as railways, roads, water or drainage works under the Act of 1920.
In supporting the noble Lord, Lord Rathcavan, and without wishing to take up any more of your Lordships' time than I can help, I should just like to say that I think it is not altogether surprising that any property owner should show a certain amount of concern when legislation is being proposed which is likely to affect his rights. But at the same time, although the Roman Catholic Church, which has been referred to, is in a minority in Northern Ireland, I should like to put it to your Lordships, as someone who lives in Northern Ireland, that we do have better things to think about in Northern Ireland to-day than religious discrimination. The old contentions which did so much to drag down Ireland, both North and South, in the past are being grown out of. I believe this is so, and I pray God that it is.
This does not mean that we in Northern Ireland are any the less loyal to the Crown; far from it; but we have more exciting things to think about today than religious bigotry. Such issues as slum clearance, which is the purpose of this clause, providing houses which are reasonable for industrial workers to live in, pleasant surroundings in the cities with open spaces and facilities for car parking, developing new industries to provide employment, providing adequate schools and hospitals throughout the Provinces, and building roads capable of serving our expanding economy—these are what we are thinking about in Northern Ireland to-day. I can assure your Lordships that the spirit of this Bill is entirely in keeping with those thoughts, and not in any way intended to prejudice the position of any minority of any denomination.
§ 2.45 p.m.
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
I am very grateful to my noble friends, Lord Rathcavan and Lord Dunleath, for making these points, because I think we have to consider this matter both from the point of view of 369 the pledge and also from the point of view of the social conditions in Northern Ireland, which are a matter irrespective of Party and of religion.
On the question of the pledge, I think it ought to be made clear that the section of the Act to which the noble Earl referred is in three parts. First and most important is the provision which prevents the Northern Ireland Parliament from enacting legislation which discriminates on religious grounds. If your Lordships will bear with me, I should like you to have the words in mind. Section 5 of the Government of Ireland Act, 1920, prevents the Northern Ireland Parliament from legislating.
so as either directly or indirectly to establish or endow any religion, or prohibit or restrict the free exercise thereof, or give a preference, privilege or advantage, or impose any disability or disadvantage, on account of religious belief or religious or ecclesiastical status …Now, that clear and wide provision is not affected at all. It is left in the Bill, and is left as a limitation on the legislating power of the Parliament at Stormont. That is part I, and it is in no way affected by Clause 13. It will continue to provide, I think your Lordships will agree, a comprehensive safeguard against legislation which would offend.
The second object of Section 5 was to restrict the diversion of the property of religious denominations, even on payment of compensation, to certain listed purposes, as my noble friend Lord Rathcavan pointed out. These purposes (and your Lordships will remember that we are dealing with an Act passed in 1920) are:roads, railways, lighting, water, or drainage works, or other works, of public utility".Under the pledge, it is perfectly permissible to take church property, with the exception of the fabric of a cathedral church, for these purposes. So, on the question whether there are not certain public purposes for which church property can be taken under compensation, the Act of 1920 says that there are: there are what one might call generally public utility purposes. This is quite beyond any Party. It has always been a matter recognised by all Parties that, for purposes of that sort, this provision is necessary. Even great private interests must give way to the general public interest, which is on the principle of 370 providing decent living conditions and amenities for all people.
The question on this Amendment is whether that should be extended to the fields which I have mentioned. I think everyone, including the noble Earl, will agree that since 1920 there has been considerable social development; and if I may take town planning, I am sure the noble Lord, Lord Silkin, will bear me out on this, because I am trying to put it completely objectively. In 1920 the only planning legislation we had was the Act of 1909, which was a very embryonic essay in town and country planning. It was not until 1932 that we really began to make some progress in the control of land use, as all Parties recognise it should be controlled to-day. The Government of Ireland Act, 1920, was passed twelve years before our Act of 1932. My submission is that housing and slum clearance, development and redevelopment, are accepted as important functions of government, and our legislation Great Britain provides for the compulsory acquisition of property for these purposes.
In Northern Ireland, however, it has not been possible to extend the corresponding legislation to the property of religious and educational bodies. Your Lordships appreciate why I emphasise the word "property"; it does not mean only the church, or the schools, or the presbytery; it covers also a street of houses owned by a church. If such a street of houses has been left by some devoted parishioner to the church or the parish priest, it cannot, under the Act, be touched. I do not want to overstate the position, but that, of course, is a difficult situation. The fact that in Northern Ireland it has not been possible to extend their legislation has in recent years caused increasing difficulty, particularly because of the very wide interpretation which the courts have placed on the meaning of the word "property". As I have already explained, in the case of a religious body that includes purely secular land which happens to be in the ownership of the religious body.
After the war, Northern Ireland's housing effort, like our own, was first of all directed to building new houses. And when you are looking for a new housing site you have room for 371 manœuvre. If a particular field is owned by a Roman Catholic body, say, you can, broadly, go to the next field; and in that way there is not the same difficulty when dealing with outskirts and periphery property as when dealing with property in the middle of a city. It is true, however, that some good housing sites have had to be abandoned because the land sought did belong to a church, and other schemes have been delayed for anything up to twelve months while negotiations have taken place.
At the moment—and this again is a matter of history—the Northern Ireland Government are concentrating more and more on schemes of slum clearance and redevelopment. There is a very large number of unfit and unrepairable houses in Northern Ireland, particularly in Belfast. Here the difficulties are much more intractable, as such schemes cannot simply be carried out somewhere else. The slums are there and they must be cleared. In Belfast alone the Corporation have listed 30 acres for slum clearance. The second of these areas has been found to include some church property, and the difficulty this has caused has up to now prevented this important scheme from being carried forward. I am not going to mention names, but I have examples in mind. Difficulty and delay may also be caused even where church and educational owners are willing to sell their property in a slum clearance area. For instance, in one case confirmation of a slum clearance order had to be refused because a church interest was involved, even though the church was willing to comply.
As slum clearance in Northern Ireland proceeds, difficulties of this sort are bound to recur, and there is a serious danger that, unless the Act is amended by extending the purposes, as is done by this Bill, the progress will be gravely hindered. I do submit, and I ask the noble Earl and those interests he is representing to consider, that it would be most unfortunate if the efforts to improve the housing of the people of Northern Ireland were to be impeded in this way. Whether an area is a slum area is not a matter of the religion of the people there: it is a matter of looking at the houses. It is possible to see whether it is a slum area; and this is a 372 question of dealing with 30 acres in Belfast alone.
I put it to your Lordships that the Act as it exists to-day leaves untouched the principle (I read out the words and they are there for your Lordships to see) on the question of discrimination, in the real sense. I asked whether there was in the last 40 years any case in the courts (because your Lordships appreciate that the matter can be taken to court if this section is infringed) of religious discrimination ever being raised. I was told that there was one case, which concerned a joint board of twelve, in which there were nine Protestants and three Catholics, and the Catholics raised the question as to whether this did not affect their position. That is the only case of a joint board that has come to the courts in 40 years on that first part of Section 5; and the first part will be left there.
My second point is that there is no innovation of principle, because we are merely extending the purposes for which compulsory acquisition may be authorised, on payment of compensation, to include not only public utilities but all housing, planning and slum clearance. So far as local authorities are concerned, the Northern Irish legislation is modelled on our own: there are provisions for public inquiry and the like; and they are subject to regulations. I asked especially about housing, because we all have so much experience of these troubles, and I was told that the Belfast Corporation do, as most corporations I know of here do, allocate their houses on a points system.
Your Lordships may have seen the statement made by the Roman Catholic Bishops. They say that this extension is unnecessary because they would in any case co-operate. I am sure they would do their best to co-operate, but in my experience (your Lordships will decide whether it is a usual one) I have always found that in slum clearances there have been two views hotly held; and the interesting thing (I do not know whether the experience of the noble Lord, Lord Silkin, is the same as mine) is that in inquiries it is not only that the slum landlord objects but also, in many cases, that the slum tenant comes forward and says: "I do not want to be moved". I have seen that happen, and I am sure other noble Lords have.
373 I quote that only to show that, where there are differences of view between the people involved, there must be some method of deciding it in the public interest.
Moreover, there will be all the safeguards of legislation. There are the safeguards under the Act itself, to which I shall refer again, that, if necessary, the Government of this country can advise that the Royal Assent be withheld. Our Parliament retains concurrent powers. If there was an Act passed that we thought was wrong and unjust, we could legislate to repeal it. They are not exclusive powers but, as I say, concurrent powers. I hope that I have not broken my pledge to the noble Viscount who leads the Opposition by going on for too long, but I wanted to show that this is an important matter from the point of view of the living conditions of the people. For the reasons I have given, I ask the noble Earl not to press the Amendment.
§ LORD SILKIN
On the Second Reading of the Bill I personally strongly supported Clause 13 for the reasons which the noble and learned Viscount has just given us; and after hearing him to-day, I am sure that every Member of the House will agree that a provision of this kind is absolutely necessary if we are to have something to remedy the conditions in Belfast and other areas in Northern Ireland. But the noble and learned Viscount has not really replied to the question which my noble friend put, as to why there has been no consultation. I believe that if there had been consultation with those ecclesiastical authorities concerned with this clause, and the explanation which the Lord Chancellor has given to the House had been given to them, they would have accepted the position and been ready to acquiesce in the passing of the clause.
After all, this is a breach of a Treaty that was made in 1920, or an extension of it, and it is only right that people who are affected should be consulted before legislation is introduced to interfere with their rights. In this case, if my noble friend is right—and I accept what he says—they have not been consulted. It reminds me of another Bill which we discussed a few days ago where the same kind of thing happened. A body intro- 374 duced legislation interfering with the rights of others without adequate consultation with those people. Undoubtedly it creates bad feeling. In this case, as I say, I have every reason to believe that, if they had been consulted before the Bill was introduced, they would have appreciated the need for a provision of this kind.
This is a matter on which I think our own Government, as well as the Government of Northern Ireland, appear to be at fault. This is a British Bill introduced in the British Parliament, and it has waited a very long time. It could have waited another week or two in order to provide this consultation. I should be grateful if the noble and learned Viscount would consider, even at this late stage, entering into discussions with the authority concerned, with a view to getting their goodwill in this matter, rather than passing it in the face of opposition from them.
§ THE LORD CHANCELLOR
I am a great believer in consultation. I think it is part of a modern legislative programme. There is always the difficulty, which perhaps one should do more to avoid when work and discussions are going on about a Bill, that people do not know about it. That problem is complicated here by the difficulties of getting a copy of the Bill. But I think the response I can make is this. The general principle for which I have argued is one which the noble Lord has said he approves, but I shall certainly be most prepared to meet or discuss with anyone who has any representations to make regarding how they would like it to be dealt with, or how their own position should be improved. For example, I should be perfectly prepared to examine the line of thought that my noble friend Lord Craigmyle put forward as to whether it would be possible to extend the exceptions in that way. As the noble Earl said, there are other stages here and in another place, and I should be prepared to consider that point. But I must make it quite clear that I could not consider something that would prevent slum clearance and redevelopment. It would simply be idle to do it.
§ THE LORD CHANCELLOR
No, I will not. But if there are any protections, I undertake to give them my consideration, and if the Roman Catholic Bishops or anyone else would care to see me and make suggestions I should be very happy to meet them myself, and I am sure that could be done. As I say, I could not prevent this general principle from going forward, especially when public utilities were covered before and this is really an extension of social thought and justice which everyone expects to-day.
§ THE EARL OF LONGFORD
The noble and learned Viscount has said that he is determined that nothing shall be done to stand in the way of slum clearance. That, I am sure, is the attitude of the Bishops. They said that in their statement—I am talking of the Catholic Bishops of Northern Ireland:The Bishops feel it scarcely necessary to emphasise the full measure of support which they always give to social development schemes designed for the public good.We were given to understand that in about thirty areas they are apparently blocking the way. I find it very hard to accept that as an adequate account of what is going on, if they are not even informed of a Bill of this sort. If they cannot obtain in Northern Ireland a copy of the Bill, I do not believe the Northern Ireland Government are trying to make contact with the Bishops. I cannot accept it on the facts before us.
I do not want to arouse any more feeling. There will be another stage. I am totally unconvinced by the argument of the noble and learned Viscount. I must not seem to suggest that there is any special concession available on the side of the Bishops. I am grateful for the suggestion of the noble Lord. Lord Silkin. I am grateful to the noble and learned Viscount for agreeing to see those who are affected. I think the best thing I can do is to withdraw the Amendment, not because I think the arguments against it have prevailed. I came here wondering if there were any arguments on the side of the noble and learned Viscount, and I now realise that they hardly exist. Nevertheless, I beg leave to withdraw the Amendment at this stage, and we live to fight another day.
§ Amendment, by leave, withdrawn.376
§ Clause 13 agreed to.
§ Clause 14 [Abolition of prohibition of making of laws taking property without compensation]:
§ 3.7 p.m.
§ LORD KILBRACKEN moved to leave out Clause 14. The noble Lord said: The only positive effect of Clause 14, which I am moving to delete, is simply and solely to enable the Parliament of Northern Ireland to take property without compensation. If I may make a brief excursion into history, the relevant passage in the 1920 Act which at present precludes such legislation, is the result of an Amendment moved in your Lordships' House which was strongly supported by no less a constitutional authority than the late Lord Bryce. The reference is Vol. 43, col. 44, of the OFFICIAL REPORT. I commend Lord Bryce's speech to your Lordships' subsequent attention. I do not imagine that I could do any better, and I will not quote from it at length. He admitted that a provision of this kind had given rise to "a good deal of litigation" in the United States, but was to be found, as he put it, "in the very large majority of the Constitutions" of the States of the Union. Of course, it is also in the Federal Constitution, in Article 5 of the Bill of Rights.
When Lord Bryce sat down in your Lordships' House, the then Lord Chancellor, Lord Birkenhead, who had previously given a luke-warm reception to these proposals commented (col. 48):
After what the noble Viscount has said I shall certainly not put your Lordships to the trouble of a Division.
The wording that was then agreed in this House was:
or take any private property for public use without just compensation".
§ That is virtually word for word identical with the corresponding phrase in the Bill of Rights, which has remained unchallenged in America, if my recollection of dates is right, for 170 years.
It may perhaps be asked: why is such a prohibition necessary? I think I should make clear here that the principal intention in 1920 was to give added security to small landowners, especially farmers; and that this was quite irrespective of religion. It was made especially clear in another place
that this provision was not due to any fears of religious discrimination. Whether it is necessary or not, I prefer to refer your Lordships to a standard work rather than to give my opinion, and therefore I quote from The American Federal Government, by Professors Ferguson and McHenry. I have to go outside these islands for comparisons because, of course, there is no written Constitution here. When discussing this point, the book says:
Both the Federal and State Government …may compel private owners to transfer property to them if deemed necessary for the public welfare.…Such great authority is susceptible to abuse. Accordingly, the Fifth Amendment states that Congress shall not take private property for public use without just compensation and States have a similar limitation placed upon them by the Fourteenth Amendment and their own constitutions".
§ I ask your Lordships, then, to consider for a moment the position of a citizen of the State of Massachusetts. He is protected three times over, by Article V of the Bill of Rights, by Article XIV and by his State Constitution, against legislation which takes property without compensation. Are we to suppose that the Legislature of the State of Massachusetts is three times more acquisitive, or that the citizens are three times more suspicious, than those of Northern Ireland? I suggest that the reverse is more likely to be the case.
§ I have referred to another standard work, that of Amos Peaslee, entitled Constitutions of Nations. This shows that at least thirty countries—I could read your Lordships a list, but I know that the farmers are "rarin' to go "on the next Motion—from Monaco to Mexico and from Lebanon to Lybia, and including Germany, Italy and Spain, Uruguay and Venuzuela, have a strictly comparable provision in their Constitutions. I submit that this is no more than a normal safeguard of the rights of an individual in countries which have a written Constitution.
If I may go back briefly to the history of this, your Lordships' Amendment was itself amended in another place to its present form—" nor take any property without compensation"—on the motion of the Minister and it was agreed without a Division (vide OFFICIAL REPORT, Vol. 136, col. 797). As the then Lord Chancellor pointed out to your then
Lordships subsequently [OFFICIAL REPORT, Vol. 43, col. 396]:
The House of Commons, though in form purporting to amend one of your Lordships' Amendments, has really added to the security which it was the object of that Amendment to introduce.
§ I consider it most remarkable that in a highly contentious Bill, one of the most contentious Bills of that decade, if not the most contentious, this particular clause was accepted in your Lordships' House and in another place without ever being put to a Division.
On the Second Reading of the present Bill, the noble and learned Viscount who normally sits on the Woolsack told us that this prohibition
goes further than might at first sight appear, for it can be construed so as to prevent the imposition of restrictions on the use of property
so that much legislation is "always open to challenge". But this has not been found an insuperable difficulty in the United States or in the thirty other countries which have a provision of this kind in their Constitutions. I am not setting myself up as a lawyer—God forbid!—but it seems to me that there must be a major difference between actually taking property and imposing restricttions on it.
What is the result when such legislation is challenged? When I expressed my apprehension on Second Reading, the noble and learned Viscount under took to send me a reference to recent cases of litigation which had arisen through the claim that legislation was unconstitutional and which had come to your Lordships' House in its judicial capacity. He has now kindly done so, but in both the cases of which the noble and learned Viscount has sent me details, your Lordships' House, in its wisdom, held that the legislation was valid, and they therefore do not indicate that Stormont's legislative powers had been in any way impaired by the offending subsection. In his letter to me, the noble and learned Viscount says that
the Parliament of Northern Ireland can be relied on not to pass confiscatory legislation.
It may be so. I am not attacking Stormont in any way. But if this is the case, what is the point of Clause 14? I suggest that Stormont is certainly no less likely to pass such legislation than are the Parliaments of a great many of
those States and countries whose people insist, and have for hundreds of years or for decades insisted, upon keeping such a safeguard in their constitutions.
§ We must keep in mind also that there is an important minority in Northern Ireland with a greatly disproportionate political representation. A constitutional amendment of this kind in the United States, I need not tell your Lordships, would require a two-thirds majority of the electorate by a direct vote, not a bare majority, or no vote at all, in what I can only describe as a largely alien Legislature. In another place, there are only twelve representatives from the Six Counties, and, as we all know, they are all Unionists, so that 35 or 40 per cent. of the population of the Six Counties has no representation whatsoever in another place. But it is on the vote there and in your Lordships' House that this vital constitutional matter will be decided. I do not believe that an important denial of rights of this kind should be smuggled through in this way, and it is for this reason that I beg to move my Amendment.
Leave out Clause 14.—(Lord Kilbracken.)
§ 3.18 p.m.
§ THE LORD CHANCELLOR
If the noble Lord, Lord Kilbracken, will allow me one point, which may partake of levity, no one would imagine that he himself had suffered from living under a Constitution by which the Legislature can take property without compensation, as is the position in this country to-day. The noble Lord's argument is: if you have an unwritten Constitution, you can have an omni-competent Parliament and you leave it to Parliament to see that legislation is valid; if you have a written Constitution, you cannot give Parliament these powers. I do not see the logicality of that argument. However, I should like to go into it a little more deeply.
If the words covered expropriation, and if they prohibited expropriation, then the provisions of the Bill would be unnecessary. What I have tried to make out—and obviously I have not made it clear—is that they cover a great deal more than the expropriation or taking of property, in the ordinary sense; or passing a Bill saying, "I will take that 380 house or land without compensation." As I explained on Second Reading—I thought almost to the extent of being wearisome—interest in property, or the restriction on the use or enjoyment of property, may count as a "taking". I gave a simple example. Supposing you desire to impose a Rent Act, to control rents, you are then liable to the attack that you have taken the landlord's property, because you have taken the interest in his property which accrues to him through his ability to command a higher rent. If you do the reverse process and decontrol, then you are equally subject to attack, because you may be removing from a tenant the interest in his property—namely, his right to have a lower rent.
Your Lordships may have thought that that illustration was far-fetched, therefore, may I give you facts, very shortly, in the last case which dealt specifically with this point; Belfast Corporation v. O.D. Cars, Ltd. The limited company, which was registered in Belfast, owned land. In February, 1954, the company applied under the Planning (Interim Development) Act, Northern Ireland, 1944, to Belfast Corporation for permission to erect industrial or commercial buildings comprising shops and factories or warehouses. In March, 1954, the Corporation refused the application on the grounds, as to the shops (I will ask the noble Lord, Lord Silkin, to note this point, and I will show why in a moment), that the height and character of the development would not be in accordance with their requirements for the site, which were that development was to be of shops, with dwellings over them, of a minimum height of 25 feet. As to the industrial or commercial use of the remainder of the site, the site was zoned as residential, with which zoning the proposed development was incompatible. In view of the refusal of the application the company claimed compensation for injurious effect under a section of the Act of 1954. It was suggested that the restriction on the development in order to meet the Corporation's view of the building plans was the "taking" of property and was, therefore, contrary to this section.
It is true, as the noble Lord, Lord Kilbracken, said, that your Lordships' House, sitting judicially, did not accept that contention. But what the noble 381 Lord had failed to notice was that the Court of Appeal in Northern Ireland, which is the Supreme Court in Northern Ireland itself, had accepted that contention and their decision was reversed. That means—and this is a very good illustration—that in any piece of planning of that sort which it can be argued affects not only property, in the ordinary sense that one would understand it, but an interest in property of the refined character that I mentioned, can be subject to attack.
The noble Lord, Lord Silkin, has had that Ministry, and he knows that it is now eighteen years since we first discussed planning. In fact, it is not dissimilar from the position of a local authority in regard to pubic utilities in 1944. Imagine trying to do your planning and control of land use with that hanging over you all the time; that you may be "shot at" under this clause. I do not want to repeat what I said on the last occasion, but may I just mention some of the new problems? This is what makes it so difficult. It is thought necessary to have power to require developers of new office and factory property to lay aside some space for staff car-parking, which is a very reasonable matter. Must such a decision carry a right to compensation, or can it fairly be said to be a reasonable restriction in the interest of the community? Similarly, loading bays for commercial lorries: if a developer is required to leave aside land, are you taking away the property from him because he is losing valuable building space?
New access to important traffic roads poses a similar problem. Or take the case of the man who wants to build a colony of houses for which at the moment there are not the proper water, sewerage or schools but only country lanes—something that comes up every day in our town and country planning. Is the State thus taking his property because you say to him that he must wait until the proper services have been developed—which of course is the right thing to do? This is done every day in this country. It is not a question of Party; it is a question of proper planning administration. You are taking away from him for two years the right to develop his property and get rents. That is the sort of thing that has hap- 382 pened. I want your Lordships to know that I considered it very carefully; and in the case I mentioned, my colleagues—I was not sitting on it myself—drew a distinction between regulation and confiscation which I thought might be helpful.
Then, in another case in which I was sitting, the Northern Ireland Government tried to regulate bookmakers shops. The question there was what was the position of someone who had admittedly—the noble Lord, Lord Stonham, will realise the difficulty here—a large illegal section to his business and a very small legal section. There was the question of how the Acts bit on that. But the difficulty is that any regulation driven to excess can be confiscation, and therefore my noble and learned friend Lord Radcliffe, in the last case, pointed out that these are not exclusive categories, and therefore you cannot do it in that way. I was very tempted when considering this Bill to say it will not be a "taking" if it is under a regulation, but, of course, in view of what my colleagues have said one can slide into, one cannot say that. Moreover, my noble and learned predecessor, Lord Birkenhead, pointed out in the debate which the noble Lord, Lord Kilbracken, has quoted that a provision of this sort had been the source of most exasperating and continual litigation. It is true he gave way in this to the noble Lord, Lord Bryce, for when the author of the standard work on the American Constitution gets up and says something otherwise, even Lord Chancellors find it a difficult situation.
But I think we ought to look at the situation as it exists today. Is it fair that there should be a prohibition against the control of land use? The second point is this—and I am empowered to say this on behalf of the Northern Ireland Government—it is the firm intention of the Government of Northern Ireland, in bringing their planning legislation up to date, to bring it into broad conformity with the present law on town and country planning in force in Great Britain. This statement of intention does not, of course, tie them to follow our legislation in every detail, but I am authorised to give an assurance that in the essential matter of the 383 acquisition of property and the regulation of the use of property the Government of Northern Ireland will deal with each and every property owner in a manner no less favourable and on a financial footing no less generous than would be enjoyed by persons having an interest in property in Great Britain, and that the legislative and executive action of the Government will he firmly aimed at ensuring that these principles are observed throughout by local government and other relevant sections of public services in Northern Ireland.
That is a categorical assurance, and your Lordships have not only that assurance but, as I mentioned to your Lordships on the last occasion, the Northern Ireland Parliament is not a fully Sovereign Parliament. Under Section 12 of the Government of Ireland Act, 1920, the Royal Assent to Northern Ireland legislation may be withheld if United Kingdom Ministers consider this essential; and secondly, the United Kingdom Parliament retains the power to legislate for Northern Ire land on any matter whatever. The United Kingdom Government do not expect that the Northern Ireland Parliament are likely to expropriate property, but if it could be argued that a safeguard was needed against the possibility, those safeguards exist. I am very anxious that we shall legislate as well as we can. If the noble Lord, Lord Kilbracken, on reconsideration can think of any safeguard, if he will go through the more modern legislative enactments, the Convention on Human Rights or any of the others, and if he will give me any suggestion by which I can do the two things—first, remove his fears of the Bill, and, secondly, retain the powers to do proper planning and control land use without a perpetual fear of being brought to court in cases like the one I have mentioned—I shall be only too happy to consider it.
But control of land use and planning have come to stay, and I do not think that the noble Lord, Lord Kilbracken, on reflection, would say that the Northern Ireland Parliament should not have the power to take a course in that regard which we enjoy in this country and therefore to secure amenities for 384 the people of Northern Ireland that are secured here. Therefore, I would ask him not to press this Amendment.
§ On Question, Amendment negatived.
§ Clause 14 agreed to.
§ Remaining clauses and Schedules agreed to.
§ House resumed.
§ THE LORD CHANCELLOR
My Lords, may I say, in view of the discussion and my own invitation, I do not intend to move that the Report be now received. I take this course so that we may have a Report stage and noble Lords may consider it.
§ THE EARL OF LONGFORD
My Lords, I am very much obliged, as I am sure the House is, to the noble and learned Viscount.