§ Order of the Day for the House to be again in Committee read.
§ Moved, That the House do now resolve itself into Committee.—(Lord Mills.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD MERTHYR in the Chair.]
§ Clause 9:
§ Orders for compulsory acquisition of land for pipe-line construction
§ 9.—(1) A person proposing to execute works in land for the placing therein of a pipe-line or a length of a pipe-line may, by means of an order made by the Minister (in this Act referred to as a "compulsory purchase order"). be authorised to purchase compulsorily land described in the order which is required by him as the site of any of the works.
§ (5) A compulsory purchase order shall be subject to special parliamentary procedure.
§ LORD LINDGREN
The purpose of this Amendment is to make clear the position of apparatus of statutory water undertakers. We appreciated that, to meet their obligations, statutory water undertakers lay mains and place apparatus not only on their own land and in the highway but also in the land of third parties. This is done, as in other cases, by way of easement. The water mains, of course, are laid under their statutory powers. I beg to move.Page 7, line 24, at end insert ("but no such order shall authorise the compulsory purchase of any apparatus belonging to or maintained by statutory water undertakers").—(Lord Lindgren.)
§ THE MINISTER WITHOUT PORTFOLIO (LORD MILLS)
The noble Lard apparently has in mind apparatus belonging to water undertakers and situated on a third party's land. I am advised that the Amendment is unnecessary, because the Bill as it stands would not enable the pipe-line promoter to acquire this apparatus. The land has been purchased compulsorily and all that can be acquired is what the landowner owns; apparatus belonging to a third party would not be covered.
§ LORD LINDGREN
In view of the assurance given by the noble Minister, 1068 I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
LORD CONESFORD moved, in subsection (5), to leave out "subject to special parliamentary procedure" and insert:
of no effect unless confirmed by means of a Provisional Order Confirmation Act".
§ The noble Lord said: I think it will be for the convenience of the Committee to take this Amendment and Amendment No. 25 together. This is an Amendment to which we attach great importance, which was foreshadowed in the debate we had on Second Reading. I am afraid that the Amendment looks rather technical and perhaps is immediately understood at first reading only by lawyers familiar with the two classes of procedure. Nevertheless, I shall try, if I can, to make the purpose of the Amendment easily understood by all, because the aim is one which I think commands the support of all sections of the Committee. The aim is greater justice to persons affected and greater Parliamentary control.
§ The Special Parliamentary Procedure is a procedure which enables an Order of a Minister to obtain statutory effect. It is laid down by the Statutory Orders (Special Procedure) Act, 1945, and what can be done is rigidly prescribed by Statute. There is no power whatsoever in either House of Parliament to override those stringent provisions in any individual case. Provisional Order Confirmation Acts, on the other hand, are, of course, in every sense Acts of Parliament which must pass through both Houses of Parliament in the ordinary way. Roughly the procedure is the same as in Hybrid Bills, that is to say they proceed as Public Bills through all their stages in both Houses, but, in addition, if there are Petitions against the Bill those Petitions are heard by Select Committees in the way with which we are familiar.
§ It is no part of my purpose to deny that the Special Parliamentary Procedure has been found useful and convenient in a number of cases. The Special Parliamentary Procedure was designed to give a simpler and a cheaper alternative to the Private Bill procedure. Its essence is that the Minister provides 1069 the motive power for driving the proposal through Parliament. It makes matters a great deal simpler for the promoters. But there are, of course, two corollaries: first of all, the Minister must himself be satisfied of the desirability of the project, and secondly, the rights of anyone wishing to oppose have been considerably cut down in contrast to what they are under Private Bill procedure. The onus lies upon the opposition and not upon the promoter. This Special Parliamentary Procedure has been freely and conveniently used for small projects, the acquisition of land for schools and many other matters. It has been used for the large compulsory grouping of water undertakings, and perhaps the greatest number of occasions of use under any one Statute have occurred under the Marriage Validity (Provisional Orders) Acts, 1905 and 1924.
§ The method is that the applicant, or as he would be called under Private Bill procedure the promoter, applies to the Minister for an Order, and then, should the Minister generally approve, we have the stage of local public inquiry and so forth; and if after the public inquiry the Minister is still of opinion that the Order should be made he lays it before Parliament. What then happens to the rights of those who wish to oppose? The position is that for a fortnight there may be Petitions against it. Those Petitions may be either of two kinds, a Petition of general objection or a Petition for amendment.
§ The one with which I am particularly concerned this afternoon and which I wish to bring to the attention of the Committee is the Petition of general objection; that is to say, the Petition of the objector who says that the proposed Order is bad, root and branch. The only way in which he can have his objection referred to a Joint Committee is for two things to be done in either House of Parliament. The first is that a Member of that House must introduce a Motion that the Order be annulled. And the second requirement is that another Member of the same House shall introduce an Amendment to that Motion proposing that the Petition should be referred to the Joint Committee. Unless that Amendment is carried there is no machinery whatsoever by which the 1070 Petition of general objection will be heard by Parliament at all. This Statute was passed in 1945. From 1945 to the present day so difficult has the procedure which I have just described proved that only in one case has such an Amendment been carried in this House, and until a little over a fortnight ago it had never been carried in the House of Commons.
§ On the 13th of the present month there was carried in another place the required Amendment referring one of these Petitions of general objection to a Joint Select Committee. It was the Llanelly and District Water Board Order, 1961, which was so referred. I greatly hope that any noble Lord who is interested in the great difficulties of this procedure will read the Report of the debate on this matter in another place on March 13, 1962, and I would particularly recommend noble Lords who sit on the Front Opposition Bench to read what their colleagues said on that occasion about this procedure and the matter which is now being raised. Such is the difficulty. There is no method whatever of getting an objection considered as of right. An objection can be considered only if the Motion that I have described is introduced and the Amendment that I have described is carried. That has happened only once in the House of Commons in the entire period between 1945 and the present day.
§ Burt the difficulty does not end there, because if the fortunate objector finds that one or other House of Parliament will carry the necessary Amendment so that his objection can go for consideration to a Joint Select Committee, he is then in this rather novel and difficult position. Members of your Lordships' House and of another place are familiar with the general convenience and efficiency that we have introduced into our legislation by the order of our proceedings. The commendation of a proposal precedes opposition to it. In the Law Courts the burden of proof is, in the ordinary way, on the plaintiff, and counsel for the defendant has not to open his case until he has heard what the plaintiff's case is. But when an Order comes before a Joint Select Committee, under the process which I have described it is the objector to the Order on whom the whole burden rests, who has to open and prove his objection without the case 1071 of the other side, that for the Order, being outlined or presented at all.
§ This procedure has proved awkward and difficult to a number of Chairmen and members of these Joint Select Committees. Although it is rare that a Petition of general objection has come before one of the Select Committees, several Petitions for Amendment have, so we are familiar with the procedure. On several occasions when the matter has come before one of these Joint Select Committees they have been placed in so much difficulty by this peculiarity of starting off with the objection before anybody has outlined the case, that they have been compelled to instruct counsel for the promoters to open with a brief factual statement which has sometimes lasted for 2½ hours. But the petitioner, in opening, is under great disadvantages. What could be more natural, for instance, than that the petitioner. who has a general objection to the Order, should wish to refer to the evidence given at the public inquiry by the promoters? There was a case where the legal advisers of the petitioner had spent £80 to obtain a transcript of what took place at the public inquiry. A most experienced former Member of your Lordships' House of high legal skill, the late Marquess of Reading, ruled that that was quite inadmissible because it was hearsay.
§ Several Chairmen of these Joint Select Committees have said how much easier it would be to follow the proceedings if the promoters put their case first. Of course, it would be far better in every way, if there is to be a proper inquiry into these objections to the Order, for the promoters to start and to put their case. The Committee will of course give due weight to the fact, if it be a fact, that the Minister has already held a public local inquiry; that he has examined the project carefully in his Ministry, and perhaps has even amended the Order originally proposed and has given it his approval. All that will be given proper weight, but the matter can be properly inquired into.
§ It may be urged against my proposal for substituting for this Special Parliamentary Procedure proposed in the Bill as it stands, the better, as I suggest, and more normal procedure of a Pro- 1072 visional Order Bill, that the change would involve some sacrifice of convenience and time. Let me admit the degree of truth there may be in such a reply to my proposal. Supposing the two alternative proposals are both unopposed, then I think I am right (my noble and learned friend the Lord Chancellor will, if necessary, correct me) that the average time which would be taken under the Special Procedure would probably be about a month, and the average time which would be taken under the procedure of a Provisional Order Bill might amount to 2½ months before the Royal Assent was obtained. That is based on the average time taken in the last year in which there were a great number of such Bills.
§ If on the other hand, we are going to assume opposition—and of course it is with the case where the Bill is opposed that I am particularly concerned—an opposed Special Parliamentary Procedure Order is unlikely to go through in less than two months. And I should assume that if the alternative proposal that I advocate were adopted, and there were opposition in both Houses, the corresponding period might be four months. That is the difference in the time taken.
§ To sum up, the Provisional Order Bill procedure which I commend to the Committee is, by universal admission, the right procedure in many cases. There is no suggestion by Her Majesty's Government that it has been replaced in all cases by the Special Parliamentary Procedure. In fact your Lordships may remember that on the 13th of last month my noble friend Lord Jellicoe commended to this House, and the House approved, the passing of the Statutory Orders (Special Procedure) Order, 1962, which came into operation on the 1st of this month, under which a certain number of cases which had hitherto been subject to the Special Parliamentary Procedure were put back to the old procedure of the Provisional Order Bill. So, admittedly, both procedures are proper, and survive and should be applied in the proper case.
§ The next matter which I ask the Committee to observe is that, both these procedures being proper procedures, the one I now commend is the one that was commended in the Special Report of the Select Committee of another place that 1073 considered the Esso Petroleum Bill. It was out of those proceedings and the recommendations of that Committee that this Bill admittedly arises, so that the proposal which I am advocating to the House now is the same proposal as was recommended by that Select Committee of another place.
§ The Amendment I propose is, I suggest, useful in meeting a criticism that has been made in all quarters of this Committee in the proceedings on this Bill that have already taken place. Noble Lords in all quarters have pointed out that we are here dealing with a very novel and important subject matter, and even if the various criticisms that have been advanced—substantially the same criticism has very often been advanced by both sides of the Committee—were met, Parliament would still want one of these pipe-line proposals when it comes before Parliament to be properly considered in the fullest possible way. There is at present in the Bill no principle at all laid down which should govern the Minister and indicate which proposals for pipe-lines should be approved and which should not. It may be that subsequent Amendments to meet our other criticisms will be incorporated, but is there one of us who believes that we should be willing to dispense with proper Parliamentary criticism and control of one of these pipe-line proposals when it eventually comes before Parliament? It is surely very desirable that in this novel sphere of legislation the applicant and promoter in a disputed case should commend his case affirmatively and satisfy a Parliamentary Committee. I beg to move.
Page 7, line 43, leave out ("Subject to special parliamentary procedure") and insert the said new words.—(Lord Conesford.)
§ LORD SILKIN
Just before the noble and learned Viscount intervenes, I should like to give my own first reactions to this. The noble Lord who has moved this Amendment, has done so very fully and I believe adequately, and I think we all understand the purposes of the Amendment. I find certain difficulties about it, and perhaps it will be convenient if I explained what they were, although I have quite an open mind on the subject and it may well be that at the end of the day I would 1074 support the noble Lord who moved the Amendment. The point arises where there is an objection to the Order for compulsory purchase and the objector has the right to have an inquiry. The inquiry is then held and the Minister, whoever he is, may decide in favour of the compulsory purchase. The Order then goes to the House for confirmation and, as the Bill stands, the House confirms it, confirms the decision of the Minister, and that is the end of the matter.
The noble Lord's Amendment would then give the objector a further opportunity of objecting to the decision of the Minister after an inquiry by having the matter referred to a Joint Select Committee. It is with this that I find some difficulty. In most cases the decision of the Minister is final. He has had a public inquiry conducted by an inspector; all the objections which the objector could put forward have been considered; they have been presented to the Minister and he gives his decision. It is not a matter in which the Minister has a personal interest or a departmental interest; he is adjudicating between two bodies, the one who has made an application to have a pipe-line and the other who has objected to it. There is no reason to suggest that the consideration by the Minister is biased or unfair or that he is not in full possession of the facts.
The procedure which the noble Lord suggests seems to me to have three objections. One is that it is rather novel for a Minister who has held a public inquiry and come to a quasi-judicial decision to be in the position that a Joint Select Committee of the House can set aside his decision. I can understand the House itself rejecting it; that is the position of every Minister. But for a Joint Select Committee to hear the same evidence, presumably, and then to reject it, seems to me to be wholly novel and without precedent. The second objection is the one that the noble Lord himself referred to: that of delay. He may think that a month and a half is not very important; he cannot assure the House it will be a month and a half and that it will not be longer.
The third objection is the question of expense. Why should the public be put to the expense, and why should the 1075 objector be put to the expense? The objector may not mind, but his chances would be fairly remote if he has a decision of the Minister to contend with. However, leaving aside the point of view of the objector, why should the public be put to the expense of a further hearing before a Select Committee, when in all other cases where there is a dispute between two private bodies or persons the decision of the Minister is final? It seems to me that there is no particular reason why in this case there should be this further right of appeal on the part of the objector. The noble Lord may have perfectly good answers upon this, but these are my own first reactions and I thought it right before the noble and learned Viscount gave the Government view on this Amendment that I should put forward my own.
§ LORD DERWENT
Before the noble and learned Viscount the Lord Chancellor replies, may I ask him to deal with one point raised by the noble Lord, Lord Silkin? I am under the impression that exactly what the noble Lord, Lord Silkin, has said happens in the case of a water order made by a Minister. After a public inquiry the order is made by the Minister and it is then, if it is still opposed, put to a Joint Select Committee. I think that is the case.
§ LORD DERWENT
That is the case at present in a Water Order. I believe that to be exactly equivalent to what my noble friend is suggesting now. I may be wrong, but perhaps the noble and learned Viscount would deal with it.
§ 3.40 p.m.
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
In case the point goes out of my mind, the noble Lord, Lord Derwent, is right about a Water Order. But, of course, the noble Lord, Lord Silkin, is quite right that there are hundreds, probably thousands, of compulsory purchase orders which finish with the Minister and do not have this procedure at all. We are dealing to-day with compulsory purchase orders and compulsory rights orders. But I should 1076 like to pick up the point of the noble Lord, Lord Derwent, if the House will bear with me while, very shortly, I put the history of this matter, because the effect of this Amendment is that compulsory purchase orders and compulsory rights orders, which are less than compulsory purchase orders, would be submitted to Parliament under what I am told by the Departments is an obsolescent procedure—namely, the Provisional Order procedure—instead of under the Special Parliamentary Procedure.
My noble friend Lord Conesford placed part of his reliance on the fact that Provisional Order procedure was suggested by the Commons Committee on the Esso Petroleum Company's Private Bill in 1960. But I think it is fair to say that the Committee on the Esso Bill were no doubt looking at the matter against the background of that Bill, in which, for convenience, the company had sought compulsory rights over the whole length of the routes of their two proposed pipe-lines. The present Bill, however, proceeds on the basis that it is up to the pipe-lines constructors to secure the rights they need by agreement, if they can, and only exceptionally to come to the Minister for a compulsory purchase order or a compulsory rights order. Of course, I at once acquit my noble friend altogether of any attempt to erect a procedure of "white-mail" against the promoters by raising procedural difficulties in their way, which would raise the price that they would be prepared to pay voluntarily.
The present Bill, however, as the noble Lord. Lord Silkin, has indicated, places upon the Minister the responsibility for ensuring that adequate arrangements are made to ensure the safe construction and operation of pipe-lines and to safeguard other interests that might be affected. There is no more reason why these should be submitted to Parliament in each case than, say, the various conditions which are imposed upon a developer by a local planning authority or the Minister of Housing and Local Government, when a planning permission is granted under the Town and Country Planning Act, because compulsory powers will be granted by the Minister only after a thorough inquiry into all the circumstances and into the 1077 objections of the persons concerned. I believe that this is the point which the noble Lord, Lord Silkin, expressed in slightly different words, but I think we approach it in the same way: that this is, in essence, an appeal department against the Minister's decision, and the Provisional Order procedure would, in our view, be quite inappropriate for dealing with what would, in effect, be an appeal against the Minister's decision.
The Provisional Order procedure was devised early in the nineteenth century, in an effort to reduce the number of Private Bills coming to Parliament. It is cumbersome, expensive and timewasting. The Provisional Order Confirmation Bill goes through a procedure very much akin to the Private Bill procedure in each House and in your Lordships' House it even has an additional stage in that it comes to the Committee of the Whole House after leaving a Select Committee. It was because of the many defects in Provisional Order procedure that Special Parliamentary Procedure was devised at the end of the last war to provide a better means of bringing before Parliament the many Orders to be made for the purpose of applying a national policy to local circumstances.
What was sought was an expeditious and inexpensive procedure, which would enable Ministers to make the Orders necessary to discharge their responsibilities under the new legislation that was coming along, under the Water Act and the Planning Acts in particular. Here I pick up my noble friend's point and the noble Lord, Lord Morrison of Lambeth, may remember this. When we were dealing with our Water Bill in 1944 in the Coalition Government, in which I had the honour to be a colleague of the noble Lord, Mr. Winston Churchill (as he then was) himself put this procedure before Parliament as an improved procedure for dealing with our Water Bill at that time. It is a rather interesting historical footnote for those of us who look back over eighteen years with pleasure, as I am sure both of us do, to that time.
At the same time, the procedure had to provide adequate opportunities for the Orders to be challenged by Members of either House; and that it does. It can be challenged in either House by 1078 Members on the Floor of the House. An advantage of that is that the Minister can then defend his Order on the general principles on the Floor of the House, which is a sound place to do it. But, of course, those who object—the interests which are affected—can also present Petitions. It was thought that the procedure might well be extended to other Orders already subject to the Provisional Order procedure, which incidentally had been applied over the years to many Orders for which it was not really appropriate.
I ought at this stage to declare an interest, in that I helped to invent this Special Parliamentary Procedure some eighteen years ago. The noble Lord, Lord Morrison of Lambeth, may remember that I was chairman of the Sub-Committee of the Cabinet, under the Machinery of Government Committee, which dealt with the Parliamentary procedures. After I had invented it, and an ungrateful electorate decided to dispense with my Ministerial services, the noble Lord, Lord Morrison of Lambeth, took up my invention and moved the Bill in another place. I do not think he would say it was a breach of confidence at this time, to say that he passed to me one of his charming notes thanking me for what I had done about it. I do not suppose he remembers that, but I remember it very well.
It occurs to me that to-day I am in the converse position to that well-known scene in Iolanthe, which will be known to all your Lordships who are Gilbert and Sullivan addicts, as I am, where Iolanthe appeals to probably the best known of my predecessors in the office of Lord Chancellor for the life of her son, Strephon. A cynic of little romantic feeling might say that there was some difference in a Lord Chancellor appealing for the life of his legislative child, but I have too much confidence in the sympathetic nature of my noble friend Lord Conesford to believe that he would drive that point too far. Moreover, I am going to suggest an improvement in procedure which will have a more mundane but perhaps more compelling reason for getting his acquiescence.
The Government have recently conducted a lengthy and detailed inquiry into the procedure. In the course of this, they considered a number of criticisms 1079 which had been advanced and they had the benefit of advice from Officers of the two Houses. They came to the conclusion that, for Orders of an executive character—that is, Orders applying a national policy to local circumstances—the procedure was substantially sound and had fulfilled the objects for which it was devised. But certain Orders of a legislative character, for which the Government agreed that it was not appropriate, have now been put back to the other procedure—and this was the matter that my noble friend Lord Cones-ford referred to in the speech of my noble friend Lord Jellicoe. The Government's conclusions were given in a statement of August 1 last and were then set out in the White Paper (Cmnd. 1610) presented in January for the purpose of the debate on the Statutory Orders (Special Procedure Order), which took place on February 13. As my noble friend Lord Jellicoe said, there were one or two respects in which the procedure called for improvement. One I shall deal with to-day, and the others can be considered in the future.
To take the criticisms which my noble friend has made, the first is that these Orders do not receive the same detailed scrutiny which is afforded to a Private Bill. I think it is a misconception to say that one of these Orders is in the same position as a Private Bill. That is where a lot of this trouble has arisen. A Private Bill is essentially a Petition directed to Parliament by private interests for special powers or special dispensations from the ordinary law. The first time that interested parties need to be told about that is when it comes to Parliament, and the first opportunities for its provisions to be considered may arise only during the Parliamentary proceedings.
On the other hand, as the noble Lord, Lord Silkin, has pointed out, a Special Parliamentary Procedure Order is made by a Minister in the discharge of responsibilities placed upon him by Statute. He is not seeking private rights for himself but is performing a public duty. Moreover, before making the Order he is under an obligation to inquire thoroughly into the whole issue, if necessary by holding a public inquiry. I submit that it would be inappropriate in these circumstances for the Minister to 1080 be placed under the same obligation as the promoter of a Private Bill to prove the case for the Order which he has made or for his Order to be subject to the same detailed scrutiny and to amendment, or even to rejection, by a Committee, regardless of whether any interested party has taken objection or not.
What is required—and I say this again because I think it meets my noble friend's point about Parliamentary control—is that Members of either House should have the opportunity to challenge the Order if they so wish and that interested parties outside the House should be able to appeal to Parliament against the Minister's decision. It means that, in cases where there is no Petition, no objection, there is no scrutiny, but, as I said, and as the noble Lord, Lord Silkin, pointed out, that occurs in hundreds and thousands of cases at the present time. We considered whether it should go to the Special Orders Committee, but the Chairman of Committees was kind enough to undertake to examine Orders himself and to call the attention of the House to anything which he thought fit; and since the Lord Chairman carries the main burden of the work on Unopposed Private Bills, we thought that this arrangement should provide all the safeguards that are necessary.
Another criticism which was made arises from the confusion of Special Procedure Orders with Private Bills, and is in regard to the order of proceedings before a Joint Committee. It has been argued that the proper procedure should be for the Minister first of all to set out his case for the Order and then for the petitioner to make his case against it. My noble friend suggested that, in practice, that would mean the onus would be placed on the Minister to prove his case for the Order; and that, I have explained, is quite inappropriate. It is fundamental to the procedure that once the Minister has gone thoroughly into the matter, heard all the objections and given a decision, the onus is then on the petitioner who is appealing against the Order to prove his case against the Order.
My noble friend referred to it only faintly to-day, but the point was made as to whether the petitioner knows the 1081 case. Of course, that is not a valid criticism, because he knows all the preliminary proceedings. In these circumstances, there will have been a local inquiry and he knows about that. Moreover—a point which my noble friend Lord Conesford had not in mind to-day —we went into this in this House in 1960, when the Standing Orders of both Houses on this point were revised. If my noble friend will look at Private Business Standing Order No. 209, he will see that that now provides that the proceedings before a Joint Committee shall, if the Committee so require, be opened by the presentation of a factual statement agreed with the petitioner; and that solves any practical difficulty.
I think that my noble friend said in his speech on Second Reading that there was only one hearing before a Joint Committee, and not two hearings before Select Committees of both Houses. But, as I said, unlike a Private Bill the proposals in a Special Parliamentary Procedure Order have already been the subject of a public inquiry held on behalf of a Minister. These preliminary proceedings, and the factual statement which I have just mentioned, should give the petitioner all the information he requires. But the advantage of the single hearing before a Joint Committee lies in the very considerable saving of time and expense. My noble friend has made the case with regard to time, but I do ask him to look at the question of expense. It is very often public money that is being spent, by both sides, when Special Parliamentary Procedure Orders are being contested, and that is a very serious consideration and one which all of us should have in mind—even myself, remembering the interests of the profession of which I have the honour to be the head.
May I now come to the points on which we believe that we can meet my noble friend? As he said, two related points have been put forward. The first is that Petitions of general objection—that is, Petitions which seek to secure the outright rejection of an Order as distinct from its amendment—should be sent automatically to a Joint Committee and not, as at present, only by Resolution of either House, with the somewhat complicated procedure which my noble friend mentioned. The second is that the "Resolution period"—the second of the 1082 two periods of fourteen days during which it is necessary for one House or the other to resolve to send a Petition to a Joint Committee—is too short. Others have argued, as my noble friend Lord Conesford argued to-day, that these two factors present petitioners with serious difficulties in getting their objection before the Joint Committee. Whether or not they do in fact, it would be proper for us to argue that the theoretical position is there.
We came to the conclusion that both these criticisms had some merit. We do not accept as a matter of principle that all Petitions of general objection—I repeat "all" and the noble Lord will see my point—should automatically go to a Joint Committee. Such a Petition can be, I think my noble friend would agree, a direct challenge to a Minister's policy, and in that case I should have thought it ought to be dealt with in the first instance on the Floor of the House, where a Minister can defend his policy, rather than dealt with immediately by a forensic procedure. Nor do the Government know of any case where it can be said that a Petition of general objection has failed to reach a Joint Committee because of procedural difficulties. Nevertheless, the Government agree that there is something to be said for making it easier to get a Petition of general objection before a Committee, and they have said that they will deal with this when a suitable opportunity for legislation occurs.
I agree that the point has particular relevance in the context of this Bill. Compulsory purchase orders or compulsory rights orders which may have to be made under Clauses 9 and 10 may well be individual orders covering land which is all under one ownership, and a Petition against such an Order will necessarily be a Petition of general objection. The Government accept that it would be desirable to deal with this particular difficulty in advance of any general amendment to the procedure. If my noble friend will withdraw his Amendment to-day, I will undertake to bring forward at a later stage an Amendment which will have the effect of amending the Statutory Orders (Special Procedure) Act, 1945, in its application to these two clauses. I think that would be the convenient way to do it.
This would provide that a Petition of general objection should be sent to a 1083 Joint Committee, without the need for debate on the Floor of the House, unless a Motion is put down or the House otherwise orders. I think my noble friend will see that I must keep that position, from the point of view of the House no less than from that of the Minister. It is hoped that that will go some way to meet my noble friend. But, subject to that, for the reasons I have ventured to put before your Lordships, we think that the procedure is a fundamentally sound procedure.
As I have said, compulsory purchase Orders do not normally come to Parliament at all. On the few occasions when they do, they come by way of Special Parliamentary Procedure and not under Provisional Order procedure. This Special procedure gives the opportunity to Members of either House, as I have said, to challenge the Orders, and therefore they keep Parliamentary control, and for outside interests to petition. I submit that that is the right procedure. However, I have always tried—and it is now getting on for eight years since I first presided over your Lordships' House—in these matters where different views are held to meet the difficulties which some of my noble friends have. I think my noble friend Lord Conesford will consider that this is, at any rate, an important step in the right direction, which from his point of view is his direction, and therefore I hope he will not press his Amendment to-day. If there are any other points, I hope he will be good enough to communicate with me, and I will consider them.
§ LORD CONESFORD
My noble and learned friend has not only spoken with his usual persuasiveness but has gone a very long way towards meeting the principal point which I had in mind. Let me say to him at once that I do not mind in the least being confined to a single Committee, the Joint Committee. In fact, I think he will agree with me that that can be combined, and has been combined in some cases, with the Provisional Order procedure. But the matter to which I attach the greatest possible importance is that the Petition of general objection shall, in all appropriate cases, be able to reach the Joint Select Committee without a Parliamentary procedure so difficult that, since 1084 1945, it had never been accomplished in the House of Commons until this month. The exact terms of my noble friend's Amendment I shall study, with others, when it is put down, and I may make some approach to him as he has invited. Just before I ask leave to withdraw my Amendment, may I say that I thought he was about to deal with the matter which he raised of fourteen days?
§ THE LORD CHANCELLOR
I do not think that is of the same importance, if it automatically goes to a Committee, unless there is going to be an Order of the House. If my noble friend, on consideration, thinks that it has a greater importance than there seemed to me to be, I will look at it again; but it seemed to me that my suggestion really covered that, because it obviated the difficulty of the shortness of time. But I should be very glad to look at it again.
§ LORD CONESFORD
I am most grateful to my noble and learned friend and I ask leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 9 agreed to.
§ Clause 10:
§ Orders for compulsory acquisition of rights over land for pipe-line construction
§ (6) A compulsory rights order shall not affect any right over the land comprised in the order which would not have been affected had that land been compulsorily purchased by virtue of a compulsory purchase order, nor shall it authorise disregard of any enactment.
VISCOUNT COLVILLE OF CULROSS moved, after subsection (5) to insert:
( ) If in his particulars of claim the owner of any land in respect of which notice to treat for an easement or right is given under this section requires the pipe-line owner to acquire the land the pipe-line owner shall not be entitled under this section to acquire the easement or right unless the Lords Tribunal determines that the easement or right can be granted without material detriment to the land or in the case of a park or garden belonging to a house without seriously affecting the amenity or convenience of the house and if the Tribunal does not so determine the pipe-line owner may acquire the land compulsorily not later than one year after the determination of the Tribunal:
§ The noble Viscount said: This is not, perhaps, a very large point, but this 1085 Amendment raises a matter which your Lordships thought fit to put in the Esso Petroleum Act of 1959, I think, under which a certain obligation was laid upon a pipe-line owner who was given by Parliament compulsory purchase powers.
§ As your Lordships will see, the provisions for compensation under this Bill in the case of a compulsory rights order are entirely contained in Clauses 10 and 11, whereas a compulsory purchase order under Clause 9 automatically attracts the provisions of the Land Compensation Act of last year, with very much wider and more far-reaching provisions for compensation in many ways. It seems to me that there may be cases where a compulsory rights order made and confirmed under this Bill would sterilise the whole of one man's piece of land. It might mean that he could do nothing with it whatever, because the pipe-line in fact ran underneath it, and had this effect of sterilising it completely. In such a case, it seems to me that he ought to have the right to ask the Lands Tribunal to require the pipe-line owner to buy the whole of the land and not just the right to put a pipe-line underneath it. This is not precisely what my Amendment asks, because the onus of proof is the other way round. But as your Lordships have seen fit to put it in this way in the Esso Petroleum Act, I should not lightly have chosen to change it. Nevertheless, it is a provision which occurs in that Act and I think It ought to be considered by the Committee this afternoon.
§ There is a second part of my Amendment, which would allow the Lands Tribunal to require the pipe-line owner to buy a garden or a path which goes with a house, if that garden or path were similarly sterilised by a compulsory rights order for a pipe-line to run underneath it. It is, as I say, not a very important point, but it is one which has arisen in the past in the context of compulsory purchase orders for pipe-lines. I hope that my noble friend Lord Mills will be able to assure your Lordships that, if this Amendment is not accepted, its omission from this Bill will not damage landowners who may have dealings with pipe-lines in the future. I beg to move.1086
§ Amendment moved—
Page 9, line 5 at end insert—
("( ) If in his particulars of claim the owner of any land in respect of which notice to treat for an easement or right is given under this section requires the pipe-line owner to acquire the land, the pipe-line owner shall not be entitled under this section to acquire the easement or right unless the Lands Tribunal determines that the easement or right can be granted without material detriment to the land or, in the case of a park or garden belonging to a house, without seriously affecting the amenity or convenience of the house; and if the Tribunal does not so determine, the pipeline owner may acquire the land compulsorily not later than one year after the determination of the Tribunal.").—(Viscount Colville of Culross.)
§ 4.10 p.m.
§ THE PARLIAMENTARY SECRETARY, MINISTRY OF TRANSPORT (LORD CHESHAM)
I certainly have not in mind to argue with my noble friend about the merits of the principle underlying his Amendment. As he says, perhaps it is not a very important one; nevertheless it is a point which, in my view, he did right to bring up. I will content myself by trying to respond to the assurance for which he asked by saying that this Amendment is unnecessary because Clause 11 (1) of the Bill provides in the case of a compulsory rights order for compensation equivalent to the depreciation in the value of land. This means that a landowner who does not wish to retain his land after a compulsory wayleave has been granted over it may sell it at the depreciated price and will receive by way of compensation the difference between that and the full market value before the wayleave was granted.
I think that this provision safeguards the position, of an owner fairly adequately. The acceptance of this Amendment would do little more than provide an immediate purchaser for the land, in the shape of the pipe-line promoter. It might not be unfair to say that to accept this would put on the pipe-line promoter something of an unjustified burden. The acceptance of this Amendment might also mean that the pipe-line promoter would find himself with a number of odd parcels of land which were of no use to him, which he was not necessarily equipped to manage or farm and which he could not perhaps conveniently sell in quantity. I am not 1087 convinced that that would be in the interests of the proper management of the land. Therefore, I hope that my noble friend may think that the position of the landowner is safeguarded by this assurance and will not wish to continue with his Amendment.
VISCOUNT COLVILLE OF CULROSS
I thank my noble friend for his answer. I am not really so concerned that the pipe-line promoter should not end up with pieces of land for which he has no particular use. After all, by putting a pipe-line beneath land ex hypothesi he has made it of no use to the person who owned it previously. Therefore, if he has that benefit out of it, I do not see why he should complain particularly when he owns the surface of the land as well. Nevertheless, I see my noble friend's point: that under Clause 11 (1) payment of depreciation in such a case would probably be large enough to cover the loss of the beneficial use of the surface of the land. All I can hope is that it will turn out in practice in the Lands Tribunal that that may be the case, otherwise there may be cause for complaint. But I hope that that will not arise, and beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ 4.14 p.m.
LORD BURDEN moved to add to subsection (6):
or any by-law made under an enactment.
§ The noble Lord said: This Amendment is submitted after consultation with the River Boards Association. With other Members of your Lordships' House, I happen to be one of its Vice-Presidents. Your Lordships will see that this subsection provides that a compulsory rights order, which of course is an order made by the Minister, shall not authorise the disregard of any enactment. Therefore it seems to me to be both logical and reasonable that any by-law which has been made in virtue of any enactment which any rights order must not disregard, or any by-law confirmed by the Minister, similarly should not be disregarded—in other words, it should remain operative. It is possible that in making a compulsory rights order, taking into account any by-law or sets of by-laws made and confirmed by a 1088 Minister arising out of a particular enactment, the Minister may think that one or more may be unnecessary, but I suggest that he could deal with that point in the order which he makes.
§ May I examine for a moment the alternative to my Amendment? On the assumption that the Amendment is not accepted, it would follow that any bylaw or set of by-laws made by a Minister, or by a river board and authorised by a Minister, would cease to have any effect in the event of a compulsory rights order being authorised and applying to land which falls within the area of a river board. Therefore it seems to me that, in the event of a compulsory rights order of the character indicated, a number of the by-laws which have been sanctioned by the Minister ever since the passing of the River Board Act would have no validity at all, because there is no provision in the Bill for them to remain operative so far as land within the area of the river board is subject to a compulsory rights order.
§ Frankly, I think that this is wrong. No one can foresee the effect of such an impossible position so far as the river boards are concerned. In the event of a compulsory rights order, must they be exempted and must they have to go through all the Parliamentary procedure which has been indicated, or some other form of Parliamentary procedure, in order to get good by-laws which are in no way affected by a compulsory rights order but relate only to the area within the river board's jurisdiction? Must they go through some form of Parliamentary procedure in order to get these by-laws again made valid and workable?
§ Of course, it is just possible that those in charge of the Bill may not be able to accept my Amendment in its present form, but the matter seems to me to be one of great importance to the River Boards Association and river boards likely to be affected. It is in no way adverse to the pipe-line business, and is put forward with a view only to good government and to enable river boards to carry out duties which Parliament has imposed on them. If the Minister cannot accept the Amendment, I hope he will be able to tell the Committee that some other form of words may be put 1089 down at a later stage, or that he can help the river boards in what they feel is a real dilemma and difficulty if the subsection is not amended. I beg to move.
Page 9, line 10, at end insert the said words.—(Lord Burden.)
§ THE EARL OF ALBEMARLE
As a Vice-President of the Central Associations of River Boards, I should like to support the noble Lord in this Amendment. The Association feel strongly about this. The noble Lord, Lord Burden, has put the arguments very well, and I hope the Amendment will be accepted by the Government.
§ LORD CHESHAM
To begin with, I think I can agree with the noble Lord, Lord Burden, that the mere making of a compulsory rights order should not exempt a pipe-line owner from his obligations under by-laws. It seemed to me, when considering this Amendment in advance, that the main point is whether or not there is some doubt that the word "enactment" in the Bill includes by-laws. I am advised that there is some such doubt. If that is so, among the other things the noble Lord mentioned we should get a position where the same pipe-line would be subject to by-laws where it had been given a voluntary wayleave, and not subject to by-laws in places where a compulsory rights order had been used. Of course, that would be an absurd position. I can therefore help the noble Lord by saying that I am quite ready to accept the principle of the Amendment. He will not mind my confirming what he himself suggested—namely, that there are doubts as to the place in which it should go and its form. If the noble Lord will withdraw the Amendment, we will put down a Government Amendment covering what he wants at a later stage.
§ LORD BURDEN
I am grateful to the noble Lord for that assurance, as I am to the noble Earl, Lord Albemarle, for his support, and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 10 agreed to.1090
§ Clause 11 [Compensation in respect of compulsory rights orders]:
LORD AMHERST OF HACKNEY moved to insert as a new subsection (1):
( ) A person entitled to an interest in land which comprises, or is held with, land to which a compulsory rights order applies, being an interest subsisting at the time when the order was made, shall be entitled to a payment by the person in whose favour the order is made of the full value for the rights thereby obtained.
§ The noble Lord said: As your Lordships will realise, Clause 11 of the Bill is the only clause which deals with compensation for compulsory rights orders. As my noble friend Lord Colville of Culross said in moving an earlier Amendment, they are not subject to the Land Compensation Act. I wish to raise a point that I mentioned on Second Reading. Under Clause (1) a person is compensated for the depreciation in the value of the freehold, and under subsection (2) he receives compensation for any damage done. But he gets no payment whatever for the rights that he is giving for the pipe-line to go across his land. In the case of statutory undertakers, so far as sewers, water mains and so on are concerned, which are laid for the general benefit of the public, I think that is quite right; and it is the position at the moment. Here, however, we have commercial companies who in the past have always been prepared to pay for the rights which they acquired, but under this Bill they will acquire those rights for nothing. There is, in my view, a great deal of difference between a commercial company who will get a right for their own profit and the statutory undertakers. Under the Esso Petroleum Act, and in the case of the Shell pipe-lines, various agreements have been arrived at under which differing sums have been agreed as minimum payment for putting a pipeline through land; and in the case of the Shell Company there was also a payment to the occupier of the land for the disturbance caused in the process of laying the pipe-line.
§ I am not saying that the owners of land should be in a position to hold a company up to ransom, and that is why I agree that the compulsory powers are necessary. I feel, however, that in introducing a Public Bill we do not want to put the owners and occupiers of land in a worse position than they were in under 1091 the Private Bill procedure. That is really the object of the Amendment. I do not pretend that it is an ideal Amendment which could be accepted in the form in which I move it, but if my noble friend can assure me that he agrees that there is a point of principle here which will be looked into, then I shall be happy to withdraw the Amendment. I beg to move.
Page 9, line 13, at beginning insert the said subsection.—(Lord Amherst of Hackney.)
§ LORD WOLVERTON
I think my noble friend has a good point here. These will be commercial companies and not statutory undertakers, and it seems to me that they ought to pay either a wayleave charge or some lump sum for the rights. Even statutory companies, like the Electricity Board and the former electricity companies, used to pay wayleave for their pylons going over land. They go overhead, of course, but there is a disturbance to land and compensation was paid. I cannot see why a commercial company who are going to get some benefit out of the pipe-lines should not pay the owners some part of that benefit for using their land.
§ 4.30 p.m.
VISCOUNT COLVILLE OF CULROSS
I also should like to support my noble friend Lord Amherst of Hackney, on a point which seems to me to be of great importance and very valid. The various landowners' associations and the National Farmers' Union have in the past succeeded in making agreements with the big commercial companies who wished to put pipe-lines through their members' land. That has been done not only in the case of the two oil pipe-lines my noble friend mentioned; it has been a widespread practice, and a certain number of shillings, or whatever the sum was, per yard of the pipe-line was paid to the landowner.
Now this Bill has come along, and it is, as my noble friend has said, putting the position in the case of compulsory purchase fairly and squarely into the same situation as applied, for instance, under the Public Health Act for the laying of sewers where case law has established that compensation is paid for the depreciation of the land, if any 1092 —and in many cases there is none whatsoever—and also for the disturbance involved in laying the pipe, and for people coming to and fro on occasions to inspect it, look down the manholes, and so on. But in the cases under that Statute and others, there has been held to be no payment to be made for the actual right to put the pipe through the land. In the case of a pipe-line the right is the thing the companies want. That is what is of value to them, and, as this is a commercial bargain, it seems strange to me that the landowner should get nothing whatever for it. But that is the case under the Bill at the moment. I hope my noble friend Lords Mills will be able to give your Lordships some reassurance. so that the situation may not arise where the pipe-line owner will be able to say to a landowner. "I am not going to give you any payment for the wayleave under a voluntary agreement. because I will go and get my compulsory purchase order and then I shall not have to give it to you." That is the situation which will arise as the clause is now drafted. Therefore I strongly support my noble friend in this Amendment.
§ LORD MILLS
As your Lordships know, the Bill already provides in Clause 11 for compensation to be paid to the landowner for any damage caused in the laying of a pipe-line. There is provision too, in the same clause, for compensation to be paid for any depreciation in the value of land which is the subject of a compulsory rights order. The noble Lord, Lord Amherst of Hackney, so staunchly supported by the noble Lord, Lord Wolverton, and the noble Viscount, Lord Colville of Culross, would like the Bill to go further than this. They want provision made for a wayleave payment by the owner of a pipe-line to the owner of land where the pipe-line runs.
Before I deal with this in more detail, may I remind your Lordships that the noble Lord, Lord Amherst of Hackney, made this suggestion during the Second Reading debate on this Bill. I then gave him a reply which, as I look at it now, perhaps indicated that a provision for a wayleave payment such as he wants is already in the Bill. This in fact is not so and I should like to take this opportunity to make that quite clear. I hope that what I said has not given rise 1093 to any misunderstanding about what is the position under the Bill as it stands at present.
The question remains whether provision for a wayleave payment, which would be in the nature of a rent, should as noble Lords propose be put in the Bill. The view of the Government is that it should not. Acceptance of the principle embodied in the Amendment would indeed have the most far-reaching repercussions on Government compensation policy in many fields. The principle behind the existing provision in the Bill for compensation for damage or depreciation is that the owner or occupier should not be worse off because compulsory rights are taken over his land; but that equally he should not gain financially for that reason. This follows the precedent of Section 18 (1) of the Land Powers (Defence) Act, 1958, which lays down the principle of compensation for compulsory wayleaves taken by a Minister under that Act for a Government oil pipe-line. There would be extremely great practical difficulties if we tried to go beyond that in the present Bill. After all, from the point of view of the landowner concerned, there is really no essential difference between pipe-lines crossing his land that are owned by a private company and those that are owned by the Government or a statutory body, such as a Gas Board or a water undertaking.
The principle to be preserved is that people should be no worse off because compulsory rights are taken over their land, and the Bill secures that. Therefore, while I see the reasons behind the noble Lord's views, and in a sense I am in sympathy with them, I regret that the Government cannot go any further than they have done in this Bill.
I suggest to the noble Lord, Lord Mills, that the principle he has advocated may be all very well in the 1958 legislation for Government Bills, but it does not seem to me appropriate now, because of this fact. After applying for a pipe-line order, a company acquires a right from the Minister. The means by which he gets this is either by compulsory order or by permission to make a voluntary order. But in neither case is it a planning permission, and land with planning permission sells at a higher price than land 1094 without. The local authority or a private developer will pay the price that land with planning permission is worth in the market. That is a well-known thing. It would seem to me that that principle should also apply in this Bill. I do not think that those who wish to operate a pipe-line would want to be so severe on the owners as to appropriate to themselves the whole of the benefit which comes from this planning permission. I expect they would be perfectly reasonable and recognise the position and be willing to pay something.
Indeed, as my noble friend Lord Colville of Culross said, it will certainly make their job much easier to negotiate voluntary agreements if they are willing to pay some small amount for the way-leave right, whereas if they can get a compulsory power they will not be likely in all cases to negotiate these voluntary agreements. It seems to me that the objective of this legislation ought to be to make it possible for those who wish to build a pipe-line to come to some arrangement between themselves and the owners which would be satisfactory to both parties and which would result in a pipe-line in the place where it was most wanted. I do not believe that by the addition of these very stringent conditions the Bill is going to make that any easier.
§ LORD WOLVERTON
The noble Lord, Lord Mills, said that under the 1958 Act the Government had these powers for laying pipe-lines which, I understand, were for National Defence. That is quite a different thing from pipe-lines which are laid for commercial operation, for people who are going to make a profit out of them. I take a completely different view of that. One gives way a lot for National Defence, but I cannot say quite the same on this.
§ LORD OGMORE
The Government are under very heavy pressure from the land-owning interests on this Amendment. There is no reason why they should not make their voices heard, but they are rather over-strident in this House as a general rule and it would make a change to hear other views. Very rarely does one hear in this House the voice of the consumer. May I look at this Amendment from the point of view of those who have to pay, the ordinary members of the public? 1095 I think the Government are quite right in their attitude in this case because, as I gather from the speech of the noble Lord, Lord Mills, the landowner will receive compensation for any damage done and for any depreciation of his property. What more does he want than that? The surface of the land is not going to be interfered with. He is going to be able to enjoy it as in the past. There are not going to be pipe-lines running across the surface of his land; the pipelines will be underneath it. They will not interfere with his enjoyment of the land in any way whatsoever.
The noble Viscount, Lord Ridley, used an argument which I should have thought was in fact an argument in favour of the Government. He said that if people want compulsory arbitration they were not likely to make a voluntary agreement. It seems to me that that, in fact, is what they will do. People who want to construct pipe-lines are generally people who do not want to be faced with a number of compulsory arbitrations on their hands. They will, in fact, I should think, for the purposes of speed if nothing else, desire to make voluntary agreements where it is possible and, no doubt, if they wish to do so they will make some small contribution to the landlords. I cannot myself see that it is a very weighty argument to say that people who are going to construct pipelines will refuse to enter into voluntary agreements, because the ultimate power is, in any case, largely in the hands of the Minister for compulsory arbitration.
As I understand this Bill—and I may be wrong—it foreshadows what will in future, in all probability, be the method of carrying large quantities of various types of material across the country. This is a Bill which really caters for the future and I feel that we do not want to clutter up the Bill with a provision for a vast number of payments to people who happen to own the surface of the land. I hope that the Government will not give way, because the people who are going to pay for this compensation will not in fact be the people who are laying the pipe-lines, as they will pass it on to their customers, to the consumers; it will be the people in this country who already pay, either as taxpayers or as purchasers of the goods, and who are, as we know, very 1096 heavily burdened at the present moment. I hope the Government will resist this Amendment, which I do not think is in the interests of the men and women of the country.
§ LORD DERWENT
Surely, the noble Lord, Lord Ogmore, is somewhat wrong. There is competition in selling the product, and if anyone is going to benefit by getting something on the cheap it is not the public or the Government, it is going to be the shareholder.
§ LORD MILLS
I have listened very carefully to what has been said by noble Lords further in support of this Amendment. I think we are tending to lose sight of the fact that, as we have so often said in this House and in this Committee, the hope of the Government is that most of these wayleaves will be negotiated voluntarily and that compulsory purchase and compulsory rights will be the exception. That may not prove right, but it is our hope; and I am sure that the Minister will have due regard to that point if he finds that far from his expectations, the pipe-line promoters demand compulsory purchase orders or wayleaves in each case. Do not let us forget that before the Minister considers the matter at all he has to know whether these rights can be negotiated or whether he is going to be faced with applications for compulsory purchases. I think the noble Lord, Lord Ogmore, expressed that point very well. The difficulty the Government find in this matter is, as I have already said, that the Amendment would make complications on the question of compensation generally, and they find themselves quite unable to accept this proposal. I do not think I can add much more to that.
§ LORD AMHERST OF HACKNEY
Before asking leave to withdraw the Amendment, I should like to assure the noble Lord, Lord Mills, that I did not feel he had misled me in his speech on Second Reading. I merely thought I had not made my point clear. I am very disappointed with the reply that the noble Lord has given, but I do not intend to press the Amendment and I beg leave to withdraw it.
§ Amendment, by leave, withdrawn.
LORD AMHERST OF HACKNEY moved, after subsection (2), to insert:
( ) If at any time in respect of land in, on or through which a pipe-line has been laid in the
exercise of any rights, powers or authorisations conferred by or under the provisions of this Act, and in respect of which land an application is made for permission to develop such land on an application made under the enactments relating to town and country planning, and—
§ Provided that—
- (i) No compensation shall be payable under the provisions of this subsection for any loss of value for which compensation has already been paid under subsection (1) of this section;
- (ii) Where planning permission for the proposed development has been granted as aforesaid, the owner of the pipe-line shall, subject to the provisions of section 3 of this Act, be entitled in lieu of the payment of compensation under this subsection, to divert the pipe-line in such manner so as to enable the proposed development lawfully to take place.".
§ The noble Lord said: This is on a slightly different point and it becomes perhaps a little more important owing to the reception of the last Amendment. This deals with the case where a pipeline goes across somebody's land and compensation is paid obviously at the existing use value, and at a later stage what would have been the value of that land changes, possibly because of development or something like that, but the existence of the pipe-line makes that development impossible. Under both the Esso Bill and the Shell Bill clauses have been inserted to the effect that if the grantor at a later stage wishes to develop, and gets permission to do so, and is prevented from doing so by the existence of the pipe, then if he goes to the company they will either move the pipe or pay him compensation. In the case of the Esso Bill this provision, I think, covered the next fifteen years, and I believe I am right in saying that in the case of the Shell Bill it was continued on 1098 into the future. This is a difficult point and, of course, can be done only once. Obviously, it is not something which can be repeated in the future. But here somebody has a pipe put into his land which he does not want there at all and for which he gets absolutely nothing, and, as I have said, at a later stage it is possible that he finds, owing to the pipe, that that bit of land is sterilised. I think it is a point which should be considered. I beg to move.
Page 9, line 27, at end insert the said subsection.—(Lord Amherst of Hackney.)
§ 4.50 p.m.
Viscount COLVILLE OF CULROSS
I do not go so far as my noble friend in what he said in moving this Amendment, but there is one point which I should like to draw to the attention of my noble friend Lord Mills, and it is this. As I understand it, the Land Compensation Act will apply to a compulsory purchase under this Bill. That means that where, for the sake of argument, a valve house for the purposes of a pipe-line is put on land and a compulsory purchase order for that small piece of land is confirmed, then the compensation for that piece of land will be assessed now under the 1961 Act with regard to the probabilities of the planning for that piece of land. That is to say, if within the reasonably foreseeable future it is possible that that land would have been otherwise developed for housing or industry or something else, so accordingly the compensation will be higher, and I think rightly so, provided one keeps it to the foreseeable future at the time when the Lands Tribunal takes account of the matter.
However, if it is just a compulsory rights order that is obtained under Clause 11 of this Bill, there is nothing in the Bill to say that any reasonable forecast of the planning situation will be made at all. It seems to me possible that the value of depreciation may solely be taken as at the date when the order is made, and no forecast will be made to give the landowner extra value if in fact there is a reasonable possibility that within the near future that land might otherwise have been used for development but will, of course, be sterilised by this Bill. Whatever the noble Lord, 1099 Lord Ogmore, may say, I think this is a case where a landowner ought to be compensated for the just depreciation of his land in the same way as he would have been under a compulsory purchase order. I have not given notice of this point to my noble friend, but I hope at some time he will be able to touch on it and see that it is covered in the Bill.
§ LORD MILLS
My noble friend Lord Amherst of Hackney put forward a proposition which sounded so reasonable that I regret I am in the position of having to refuse it, on what I think are sound grounds. The acceptance of the principle of this Amendment would mean that for an indefinite period pipeline promoters would be liable to pay additional compensation of an unspecified amount. It would be quite unreasonable, I think, to impose by Statute an open-ended obligation of this kind. It would almost certainly have a stultifying effect on industrial development of pipe-lines. Where a promoter is considering whether to invest what might be a very large sum of money in new facilities of this kind, he should be able to calculate the expenditure to which he is committing himself within reasonable limits and should not be left with the risk of having to meet additional large commitments for reasons quite outside his own control. I would point out, in addition, that if these provisions were applied to private pipe-lines it would set a most awkward precedent for Government pipe-lines, gas pipelines and so on, and might seriously breach the Government compensation policy generally.
Where compulsory rights are taken, the landowners' legitimate interests are safeguarded by the provisions of the Bill for compensation in respect of any depreciation in the value of the land at the time the compulsory rights order is made. There are many forms of development which might have the effect of preventing the more profitable use of the land subsequently, and it would be undesirable to single out one of those for special treatment in public legislation. As I said in regard to the previous Amendment, where wayleaves are obtained voluntarily it is, of course, up to the landowner to secure the best terms 1100 he can. The point raised by the noble Viscount, Lord Colville of Culross, is, as he said, a new one of which I have not had any notice, and I should be grateful if he would permit me to look into it. I am sorry I am unable to accept the proposed Amendment.
§ LORD BURDEN
While not pressing the noble Lord to accept the Amendment, I must say that listening to the noble Lord, Lord Mills, and the noble Lord, Lord Amherst of Hackney, my mind went back to the way in which Parliament treated railways in the early days of railway history, how tremendous sums were forced out of the railway companies as compensation for all sorts of conditions by the Parliament of the day. It is just a sidelight on the way in which the centre of power has now shifted in Parliament from the landowning classes, those who owned land over a hundred years ago, when we have come to the position of the noble Lord defending private enterprise against what are considered unreasonable demands of the landowning classes.
§ LORD WOLVERTON
I think the noble Lord, Lord Amherst of Hackney, has an important point here. Let us assume that the pipe-line owner was not able to do it by voluntary agreement and had to go to compulsion, and the pipe-line was laid when the land was not ripe for development. It might have become near ripe in the foreseeable future—say, ten or fifteen years, which I understand is the period taken in the Esso case. If the land was then given planning permission and the owner of the pipe-line was approached and refused to divert the pipe-line, of course it would sterilise the land completely, because the landowner could not build over it. If he built over it and the pipeline went wrong he would be in a difficult position. If this is legislation for the future, I think we ought to think of this matter very carefully. There is an important point here which ought to be met in some way.
While I cannot but agree with the noble Lord, Lord Mills, that a definite obligation for an unnamed amount would be an impossible burden to lay on the promoter of the pipe-line, I think it is important to look and see that both the 1101 right to lay the pipe-line and the right to buy the land operate having regard to what future planning operations may be. I believe the noble Viscount, Lord Colville of Culross, was right in making that point. At the same time there is the equally important point that a pipeline may at some stage prevent the development of a rather large area of land and may mean that the land is a great deal less valuable than it should be. I would not suggest that an obligation to pay compensation at a late stage be put on the company, but there may be a case for moving the pipe-line at the expense of the landowner concerned. Is it possible to think of some means whereby there is an obligation on the company to be willing to move the pipeline, but not at its own expense? Such a situation might arise and it might be worth considering.
§ LORD SILKIN
I do not know whether there is any danger of the noble Lord, Lord Mills, being seduced by the blandishments of the noble Lords on his side, but I hope he will stand firm on this matter as he has done on a number of other occasions with far more reasonable Amendments. In this case the compensation is not only based on the immediate prospect if it is settled under the Act of 1959; the compensation is based upon what is the value of the land, to be settled if necessary by the Lands Tribunal. That value will be assessed having regard not only to the immediate possibilities of development but to any future possibilities. The noble Viscount opposite shakes his head. I will have a word with him outside, and we will compare notes on how many cases he has had before the Lands Tribunal and how many I have had, and I think he will find that I am right The value of land is what its potentialities are—what somebody will pay for it in the open market. Somebody buying land in the open market will have regard not only to what he can do to-day, but what he will be able to do in the future. However, that price is settled by the Lands Tribunal, once for all.
Admittedly, there is, I think in the 1959 Act, a provision that within five years it is possible to go back to the local authority and get a little more if the planning position has changed—that is putting it broadly. This Amendment 1102 would give the owner of the land the right to go back in perpetuity, without any time limitation. The noble Lord, Lord Amherst of Hackney, has opened his mouth far too wide. If he had said "within five years" he would have had a more arguable case. But he would come back in a hundred years' time, if necessary. That cannot be right. But, on balance, I think this is right. It is one thing to "bleed" a local authority—I suppose that is permissible if they want to acquire land compulsorily; but to expect private enterprise to be "bled" is quite wrong. I hope that the noble Lord will stand firm on this.
§ 5.3 p.m.
VISCOUNT COLVILLE OF CULROSS
Of course I shall be delighted to meet the noble Lord opposite afterwards. I should like, however, to say that he is quite right that the compensation provisions of the 1959 Town Planning and Country Act (Which I might remind him are consolidated in the Land Compensation Act, 1961) will apply to a compulsory purchase order under Clause 9. However, as I understand it, they would not apply to compulsory rights orders under Clause 10, for which the compensation is laid down in Clause 11. That was the distinction that I was making, and that is why I was hoping that in the case of a compulsory rights order the same sort of procedure as is provided for a compulsory purchase order under the 1961 Act would apply. I hope that is clear.
§ LORD MILLS
I have already said to my noble friend Lord Colville of Culross, that I will look into that point. In reply to my noble friend Lord Silkin, I hope that I shall always be prepared to give way, whether the proposal comes from his side of the House or from this side of the House, when I am satisfied that there is a practical or a just case. I do not think that this is a practical proposal, and I do not propose to give way.
§ LORD AMHERST OF HACKNEY
I see the difficulties of the noble Lord in accepting this Amendment. I am glad that he is going to look into the point mentioned by the noble Viscount, Lord Colville of Culross. I think it is an 1103 important point. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 11 shall stand part of the Bill?
§ LORD CONESFORD
May I raise one point, on the Question that this clause shall stand part of the Bill? On Second Reading I drew attention to what appeared to me to be a defect in the draftsmanship of subsection (2) which I am quite unable to follow as it stands. It reads:Where in the exercise of any right conferred by a compulsory rights order a person suffers loss by reason of damage to …" and so on.So far as I can see, the person who suffers loss or damage is not the person exercising the right. With all respect, the words seem to me to be slightly nonsensical. It occurs to me that possibly the second word in the sentence, "in", should be "through", which would make some sort of sense. It may be that I am quite wrong in all this. I see my noble and learned friend the Lord Chancellor: no doubt he can say whether I have gone mad or the draftsman has nodded.
§ THE LORD CHANCELLOR
I accept my noble friend's invitation and can give him the most complete assurances as to his sanity and comprehension. It is not the person who exercises the right with whose possibilities of compensation we are concerned. May I translate the clause into its active form, giving the substance of it? In addition to depreciation, where the exercise of a compulsory rights order damages anyone's land or personal property, or deprives him of the enjoyment of it, he must be paid compensation. It is not necessary for the plaintiff to prove negligence. That is the effect of the clause. I think that the use of the word "in" is in order to avoid excluding what might be thought to be collateral damage—for example, people walking over the land; but I will certainly have a look at and discuss this interesting point. In the meantime, my noble friend need not fear for the additional compensation which will come, under the subsection, to the person entitled to it.
§ Clause 11 agreed to.1104
§ 5.8 p.m.
§ VISCOUNT COLVILLE OF CULROSS moved, after Clause 11 to insert the following new clause
§ Compensation arising out of pipe-lines
§ .—(1) In this section the expression "land" includes any works or apparatus situated under over or upon land and any interest in land.
§ (2) The owner of a pipe-line shall pay compensation to the owner, lessee and occupier of any land—
- (a) for any damage caused to such land, and
- (b) for any other expenses, loss, damages personally or costs incurred by such owner, lessee or occupier
- (i) by reason of the pipe-line and any works constructed in connection therewith or in consequence thereof or the leakage, bursting or failure of the pipe-line or such works:
- (ii) by reason of any act or omission of the owner of the pipe-line or of any person In his employment or of his contractors or agents whilst engaged upon the pipe-line and any works constructed in connection therewith or in consequence thereof of the repair or maintenance thereof:
- (iii) by reason of the exercise by an inspector of the powers and duties conferred upon him by section thirty-nine of this Act:
§ Provided that—
- (a) this subsection shall not impose any liability on the owner of the pipe-line to indemnify and hold harmless any owner lessee or occupier in respect of so much of any damage as is attributable to the act neglect or default of such owner lessee or occupier or of any persons in his employment or of his contractors or agents;
- (b) any such owner lessee or occupier shall give reasonable notice to the owner of the pipe-line of any claim or demand which in his opinion is a claim or demand for which the owner of the pipe-line may be liable and no settlement or compromise thereof shall be made without the consent in writing of the owner of the pipe-line.
§ (3) Any difference arising between the owner of the pipe-line and the owner lessee or occupier of any land under this section (other than a difference as to the meaning or construction of this section) shall be settled by arbitration."
§ The noble Viscount said: In moving this Amendment I again rely upon the wisdom of your Lordships in inserting a similar clause in the Esso Act in 1959 which, as does this Bill, empowered a certain commercial company to buy land compulsorily to lay a pipe-line. This proposed new clause provides for absolute liability on the part of the pipe-line owner for any explosion or leakage of his pipe-line which does damage to anyone. I am glad that my noble and learned friend the Lord Chancellor is still here, because as I understand Clause 11 (2), a person who is injured while walking over the pipe-line would not personally be compensated under the Bill as it now stands. This is particularly important, seeing that your Lordships will, in a moment, come to a series of clauses which deal with pipe-lines laid in public highways, where people may be walking about or driving their cars, or be doing any number of things.
§ As the Bill is at present drafted, there is in Clause 11 (2) what seems to me to be another defect, in that the clause provides only for compensation for people who have their property damaged where compulsory rights orders have been made and confirmed in favour of the pipe-tine company. Your Lordships will see that where a landowner voluntarily agrees with a pipe-line company that it shall lay a pipe-line through his land, he will take an equivalent clause in the agreement to that which is provided in this Bill, to protect him from any damage that may arise in the future. I have no doubt that that is so. But, of course, there may be people who have land or property on either side of the pipe-line who are not in negotiation with the pipe-line owner. They would have no opportunity in any agreement made with the pipe-line owner to insert anything for their protection in the case of an explosion or leakage later on; and personal damage is, I believe, not covered by the Bill at all.
§ Therefore it seems to me that there is something of a gap here. It may be that personal injury should not be covered and that Common Law rights are enough. On the other hand, I believe 1106 that the lack of a provision, where there is a voluntary agreement, for any protection of collateral owners on either side is a defect in this Bill and might be looked at again—particularly as your Lordships have already seen fit to include such a provision in a Pipe-line Bill and are doing the same as the House did then: that is to say, conferring compulsory rights powers on any company which can get to this stage of procedure in the Bill. I beg to move.
After Clause 11 insert the said new clause. —(Viscount Colville of Culross.)
§ LORD MILLS
As the noble Viscount said, the intention of this new clause appears to be to establish the principle of absolute liability for damage to land or persons arising out of the construction of a pipe-line or its presence on the land. As it stands, the Bill provides, in Clause 11 (2), that in the case of a compulsory rights order the owner is liable, without proof of negligence, to pay compensation if, in the exercise of a compulsory right, he causes damage to anyone's land or personal property, or disturbance in the enjoyment of it. This provision follows the principles laid down for Government oil pipe-lines under Section 18 (3) of the Land Powers (Defence) Act, 1958. Claims for injury to the person will be governed by the Common Law, and negligence would normally have to be proved.
The Government have given very careful consideration to this problem, and have decided against making the liability of pipe-line owners absolute, for the following reasons. Pipe-lines are no more nor less dangerous than many other kinds of industrial equipment. Where Statutes impose an absolute liability of this kind they have always done so for some special reason. Perhaps I could give three examples of this. Such a liability is imposed on the owner of an aircraft, under the Civil Aviation Act, 1959, as a quid pro quo for permitting without compensation the notional trespass which, apart from that Act, would occur whenever an aircraft flies over someone's land. Secondly, such a liability is imposed on the National Coal Board, under the Coalmining Subsidence Act, 1957, because in the slow process of subsidence it is usually impossible to say whether at any time the Board or its 1107 predecessors have acted negligently. The third example is the Atomic Energy Authority, under the Atomic Energy Authority Act, 1954, and nuclear site licensees under the Nuclear Installations (Licensing and Insurance) Act, 1959, because they would be handling radioactive substances on a large scale and the risks of doing so were still imperfectly known. No such special reasons, so far as we can discover, are applicable to pipe-lines, and the Government therefore consider that they would not be justified in establishing the precedent of an abnormally onerous liability for a type of future industrial development which presented no exceptional risks. In these circumstances we do not find this clause acceptable.
§ LORD CONESFORD
I am a little surprised that the Government have turned down quite so definitely the suggestion of absolute liability. I should have thought that the precedent in Common Law was by no means so clear against the Amendment as my noble friend the Minister has suggested. I am admittedly very rusty in my law and am quoting from memory, but I think the leading cases are Rylands v. Fletcher and Nichols v. Marsland. Nichols v. Marsland was a case, I think, where a man caused a reservoir to be put on his land to collect the water and was not negligent in any way, but the dam burst and his neighbour was damaged. In that case the principle of Rylands v. Fletcher was applied, and, if I remember my books aright, the Court of Appeal in Nichols v. Marsland said that where a man for his own purposes had brought on to the land a thing which was not naturally there and it escaped and did damage, then he was absolutely liable. I have no idea what the danger of these things may be, but I should think that it would be very hard on some innocent walker, who was perhaps following a footpath, if some dangerous gases exploded in one of these pipe-lines and, perhaps, he lost a leg. It seems that it would be rather hard on him, if it were a complete answer to any claim by him for damages to say, "Oh no, we were not negligent. We are very sorry about your leg, but nothing can be done".
VISCOUNT COLVILLE OF CULROSS
I do not want to rival my noble friend in his knowledge of the law—indeed, I 1108 could not do so—but I must say that the answer of my noble friend Lord Mills surprised me somewhat, because in actual fact Her Majesty's Government have provided in this clause a certain absolute liability. What they have done is to say that where there is a compulsory rights order an adjoining owner will automatically, and without proof of negligence, be compensated for any damage caused to him as a result of an explosion. That is the situation without his having anything to do with the compulsory rights order or the procedure; and in any event he will not be affected by it. Yet Her Majesty's Government refuse to give him exactly the same protection where his neighbour, instead of being forced to give up his right by compulsory means, voluntarily agrees to do so. Her Majesty's Government appear to be making the most extraordinary distinction here.
§ LORD MILLS
I have neither the legal knowledge nor the vivid imagination of my noble friend Lord Conesford, but I am advised here that it would be wrong to impose by Statute the absolute liability asked for.
VISCOUNT COLVILLE OF CULROSS
Will the noble Lord not look further at the point that I have raised? Even if he finds it impossible for personal liability to be accepted in this Bill, can he not do anything to remove this anomaly in the case of the adjoining owner; or would he be prepared to look at this matter again? It seems to me to be an entirely reasonable thing to ask for, and not in the least a matter objectionable in principle.
§ LORD MILLS
If my noble friend will not assume that I am making any commitment, of course I will look further into the points he has made.
§ Amendment, by leave, withdrawn.
§ House resumed.
EARL ST. ALDWYN
My Lords, I beg to move that this House do now adjourn during pleasure until the Royal Commission at 5.30 p.m.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House adjourned accordingly.
§ House resumed.