HL Deb 23 April 1963 vol 248 cc1099-109

2.40 p.m.

LORD SILKIN rose to move, That the Bill be referred to the Examiners in order that it may be decided whether the Bill is a Hybrid Bill. The noble Lord said: My Lords, in moving the Motion standing in my name, I have two apologies to make to your Lordships. One is that I am afraid that the speech I am about to make will be rather longer than I have been making in the past few months; and the second is that this is a very complex subject, and I hope your Lordships will be able to keep awake for most of the time. But I will do my best to make it as simple as I can.

The Motion that I am moving was, in substance, presented to the other place by my honourable and learned friend Mr. Mitchison before Second Reading of the Bill there. The case I am going to present is largely but not entirely based on what he said. The learned Speaker replied to my friend's contention and decided against. I thought it right to say that we have to contend with the fact that there is a ruling of the Speaker against the contention I am putting forward. Nor do I suggest that, although the contention was put forward before the Second Reading and before the Bill passed through all its stages in another place, there has been any material change to affect the decision which was then given.

I want to submit, first of all, that the decision of the Speaker, however impor- tant and however seriously we have to take a decision of that kind, is not binding on this House. Since the learned Speaker gave his reasons for giving his decision it is open to us in this House to examine those reasons and to say how far they are valid. I hope to satisfy your Lordships that certain aspects of the matter were not considered by the Speaker at all, and that in others he misdirected himself. Your Lordships may feel disposed to take a different view and to accept the contention that I am about to make that there is sufficient doubt as to whether or not this is a Hybrid Bill to justify its being sent to the Examiners. I want to say at the outset that I do not wish to be dogmatic about this matter at all. All I am putting to your Lordships is that, in accordance with precedent, if there is any doubt at all that a Bill is a Hybrid Bill, then it is customary and right that it should go to the Examiners for them to decide upon it.

I referred a moment ago to the fact that the learned Speaker had come to a different view. There is at least one precedent I have been able to discover—there may be others—where a different view has been taken by this House on the subject as against the view taken in the other place. I want to quote in particular the Welsh Church (Amendment) Bill, which was presented and read a first time in your Lordships' House on February 26, 1938. It was passed by this House and sent to the other place without amendment, was eventually returned from the other place without amendment, and received the Royal Assent on July 13, 1938. But when the Commons received the Bill, they referred it to the Examiners, who found that Standing Orders were applicable and had not been complied with. The Commons Standing Orders Committee recommended that the Standing Orders should be dispensed with, but in fact the Bill was treated as a Hybrid Bill in the Commons. Here is a clear precedent for a difference of view between this House and another place as to whether or not a Bill is a Hybrid Bill.

This is a Bill dealing with London government and, by tradition, Bills dealing with London government are Private Bills. I do not say that this is universal. There are Acts of Parliament dealing with the Metropolis which have been Public Bills, but traditionally Bills which deal with London government are Private Bills. In fact, as the House knows, there is an annual London County Council Bill which comes before your Lordships and which is a Private Bill. May I quote Erskine May, page 869, on this point?— A Bill relating to a city is usually held to be a Private Bill. This Bill, of course, relates to a number of cities, but I would have thought that that in itself would not invalidate the contention that I am putting forward. It might merely aggravate it, and support it. Moreover, even if a Bill is by its nature a Public Bill, it might become a Hybrid Bill if private interests are or may be affected. I want to quote the footnote from page 1 of the Minutes of Evidence given by the Clerk of Public Bills to the Select Committee on Hybrid Bills. A Bill purely Public has been converted by amendment into a Hybrid Bill. Thus, the Waterworks Clauses Act 1847 (Amendment) Bill, 1884–85, as introduced into the House of Commons, applied to every water company in the kingdom. By an Amendment made in Committee, it was limited to the metropolis. Your Lordships House referred the Bill to the Examiners, who held that it had become a Hybrid Bill. I submit that, even if this Bill were merely a Bill to combine a number of existing metropolitan boroughs, it would have become a Hybrid Bill. For instance, if a Bill had been introduced into this House or another place merely for the purpose of combining, say, the boroughs of Hackney and Stoke Newington, that by itself would have made it a Hybrid Bill. But, of course, this Bill does very much more than that.

Moreover, the combinations are not uniform in character. There is no general pattern in the combinations creating new London boroughs. In fact, there are at least eight detectable different patterns. There is the case of two or sometimes three existing metropolitan boroughs combined to form a new London borough. Similarly, there are a number of out-county boroughs and districts which are combined. There is the case of an existing London borough which is split in two and has part combined with an existing London borough—for instance, Wands-worth. There is the case of an existing London borough split in two, with one part combined with an existing London borough and the other part combined with two county boroughs and a portion of another out-county borough. That is the case of Woolwich.

Then there is the case of an existing out-county borough split in two, with one part combined with part of another out-county borough and the other part with two county boroughs and part of a London borough. That is Barking. There is the case of an out-county borough split in two, with one part combined with two out-county boroughs and part of an urban district and the other part combined with part of an out-county borough. That is Dagenham.

Then there is the case of Chigwell, which is divided into two, one part being in Greater London and combined with two out-county boroughs and part of a another out-county borough, and the other part entirely excluded and remaining in the County of Essex. There is the case of Epsom and Ewell, which is divided in two, one part combined with three out-county boroughs to form a new London borough, and the other part entirely excluded and remaining in the County of Surrey. These are eight different types of combinations, different in character, and each creates special problems and requires special and different treatment. They cannot be treated as if they formed one class.

Even more, a whole county, the County of Middlesex, is being wiped out; three county boroughs are being merged with other areas to form new London boroughs—namely, East Ham, West Ham and Croydon, and four county councils are being torn apart, a portion of them coming within the Greater London area and the remainder outside. All these give rise to specific problems which cannot be treated in a general way. Each one has to be considered separately.

I should like to give one example of what this involves. Clause 23 of the Bill provides for the transfer of land held by a local authority for housing purposes by the existing local authorities to the new London boroughs. Different considerations apply affecting in entirely different ways each of these eight classes of case. In some cases it is fairly simple, and the whole of the housing land and of the housing is transferred either to the Greater London Council or to the London boroughs. In others, the interests of existing ratepayers are divided up as between the new Greater London Council and the previous authority. The matter is not merely one of vesting of assets, but of providing also for liabilities. I recognise that the Bill provides under Clause 23(3) that the Minister may, in the last resort, resolve any differences of view as to the right kind of allocation of the liabilities, but there are different considerations which apply in each case.

In the case of housing, to which I am referring, by splitting an existing housing authority, like Dagenham or Barking, you may find that most of the houses go into one new borough and few of them into the other part of the borough. The effect of that will be that people on the housing list who have been looking forward to getting in their turn housing accommodation as it became available may be deprived of their opportunity, because they may come into that part of the divided borough which has very few houses. If that is not differential treatment, I do not know what is. Large numbers of people who may have been on the housing list for a long time are going to lose the opportunity of getting houses from the local authority, and their interests will be adversely affected. Here I want to quote from Erskine May again: It has the character of a Private Bill, since it affects the interests of specific individuals or corporations as distinct from all individuals or corporations of a similar category. I want to submit with all the force I can that in the cases I have quoted specific individuals or corporations, as distinct from all individuals or corporations, are being affected. Therefore, while not wishing to be dogmatic about the matter, I want to repeat that this raises sufficient doubt to justify this Bill's being sent to the Examiners for determination on this question.

To sum up this part of my argument, I claim, first, that a Bill dealing with a specific area of the country, however large or important, as distinct from one of general application over the whole country, has ipso facto been held to be a Private Bill; and, secondly, that in any event, by reason of the various categories of cases I have quoted indicating that a number of local authorities will require and get special treatment under this Bill, a private character has been introduced into the Bill which, therefore, calls for consideration by the Examiners. The learned Speaker gave no direct ruling on this point. It was, I think, put by implication by my learned friend Mr. Mitchison, but the Speaker certainly gave no ruling on the point. While I accept the fact that the Speaker had to give a ruling without notice, nevertheless, I think it is important that this matter should be properly considered by the appropriate department. I submit that there is at least a doubt. There may be precedents either way, but that still leaves a matter of doubt; and what I have to show is that the matter is doubtful.

I want now to refer your Lordships to Clauses 35 and 36 of the Bill, which deal with the vesting of certain existing sewers and sewage disposal works in the Greater London area in the new Greater London Council, and the vesting of certain ancillary sewers in the London boroughs. Subsection (5) of Clause 35 requires the Greater London Council to consider as soon as practicable the question of taking over any additional adjacent sewers, even though vested in some other local authority. That is a perfectly general requirement and would not of itself give rise to the question of whether this Bill was a Hybrid Bill. But there is one exception to this, and it is contained in subsection (9) of Clause 35, which provides that: Nothing in this section shall affect any sewer, sewage disposal works or other property, or any powers or duties, of the West Kent Main Sewerage Board. Of all the sewerage boards and authorities involved in Greater London, this Board alone are exempt from being taken over by the Greater London Council. This gives them special treatment as against all the sewerage boards in the area. I am not at this stage challenging the reasons for their being made an exception. I think the learned Speaker referred to the fact that this was on the outskirts of the new authority, and to various other factors. There may be perfectly valid reasons, but the fact remains that they are being treated differently from the other sewerage boards, and this in itself would justify treatment of the Bill as a Hybrid Bill.

Most of Borough 18, consisting of Bexley, Erith, Crayford and parts of Chislehurst and Sidcup, and Borough 19—the whole of Beckenham, Bromley, Orpington and Penge, and parts of Chislehurst and Sidcup—all of them in Kent, will continue to be served by the West Kent Sewerage Board. That is, a large chunk of the Greater London area will continue to be served by the West Kent Sewerage Board, a body over which neither the Greater London Council nor the two new London boroughs concerned will have any control whatever. As I have said, this is, or may be, a discrimination against those particular authorities, and I submit, therefore, that this discrimination by itself would make the Bill a Hybrid Bill.

In another place my learned friend gave the example of the Rating Valuation (Miscellaneous Provisions) Act, 1955. As introduced in another place this was unquestionably a Public Bill. During the passage of the Bill in another place an undertaking was given on behalf of the Government to give exceptional treatment as regards two sewers; and I ask your Lordships to bear in mind that these were sewers and not waterworks, because a distinction was sought to be made as between the water authority and the sewerage authority. The position was that sewers generally were to be derated. The local authorities primarily concerned with the two sewers would have suffered exceptionally severe rating losses. They were East End boroughs, and would have had great financial problems if they had had to suffer a loss of rating in respect of these two sewers. Consequently, an undertaking was given by the Government that when the Bill came to this House they would amend it by exempting these two sewers from the general derating proposals in the Bill.

But when the Bill came to this House the Government—I was going to say "broke their undertaking to amend the Bill". At any rate, they found themselves unable to honour their undertaking, and the reason they gave was—and I ask your Lordships particularly to note this—that to have carried out the undertaking to treat these two sewers in an exceptional way would have made the Bill a Hybrid Bill. In another place Mr. Duncan Sandys then Minister of Housing and Local Government said: We have taken the best possible advice"— and I imagine that at that time the best possible advice was the advice given by the noble and learned Lord on the Wool-sack— but we are not satisfied that without stretching the Constitution it will be possible to deal with the matter other than by means of a Hybrid Bill. If that was the view of the Government in 1955, and the justification for breaking an undertaking given to another place, how can the present case of the exemption of the West Kent Sewerage Board from the provisions of this Bill be distinguished?

The learned Speaker gave two reasons for not accepting this contention—that is, that the sewerage board should be treated differently. He thought that a distinction could be drawn between sewerage, on the one hand, and other public utilities, like water, gas, transport et cetera, on the other. He placed sewerage as coming within local government functions, and water and the other services in the other category. That is the view we are dealing with: that with water, gas, and so on, it became a Hybrid Bill, but with a local government function it was not so. I have given your Lordships an example of an earlier case in 1955, where the Government took a different view and regarded a sewerage exemption from rating as justifying treatment of a Bill as a Hybrid Bill.

Nor do I follow exactly the reason. These are all public services. In scale cases sewerage boards are private undertakings, just as water authorities are. In others they are public undertakings. Frankly, even if one seeks to make a distinction, it is very difficult indeed to understand how you can distinguish between one public service, like water, and another public service, like sewerage. With great respect, I think the learned Speaker missed the point. The question is not one of the nature of the service, but whether there is discrimination; and I hope I have shown clearly that there is discrimination and that the Government themselves thought so in similar circumstances in 1955 in the case of the Rating, and Valuation (Miscellaneous Provisions) Act, where, as in the case of this Bill, sewerage was incidental only to the main purposes of the Bill. It was not a Bill expressly for the purpose of derating sewerage: that was an incidental to the whole thing.

The second direction in which I disagree with the learned Speaker is that he said that the precedents relating to Bills affecting local government of the whole of London, and those which relate to Bills on the metropolitan sewers, would prevent him from ruling that this Bill is prima facie hybrid by the presence in it of Part V, which is the Part dealing with sewerage. Here again, I respectfully submit that the learned Speaker has misconceived the case. Obviously a Bill dealing wholly or partly with sewerage does not ipso facto become a Hybrid Bill. It is because the West Kent Main Sewerage Board is treated differently and exceptionally from three or four sewerage boards which are to be dissolved under the Bill, and because of the fact of this discrimination on the ratepayers of the Greater London area, that I submit that there is at least a doubt as to whether this is a Hybrid Bill, and that this doubt ought to be resolved by the Examiners of the House before we proceed any further.

May I at this stage point out that I am not making a technical argument? This is not merely a matter of machinery. This is a matter which vitally affects the interests of human beings. It goes to the root of our Parliamentary democracy. Where a group of people are being singled out for exceptional treatment it is, by tradition of Parliament, the right of those people to come before a Parliamentary Committee and state their case. It is because these people—the people who are being deprived of the opportunity of getting a house; the people who are going to be treated differently as regards sewerage; the people who are at present members of a county council which is to be wiped out; the people who are at present citizens of county boroughs whose powers are to be wiped out and who will be absorbed in the Greater London borough—are being singled out for special treatment that I submit that our system of Parliamentary democracy requires that they should have the opportunity of making representations. Not only are their pockets likely to be affected, but also their rights as citizens. I point out, in the case of the West Kent Sewerage Board, the possibility of their getting an inferior system of sewerage. In all kinds of ways the changes in this Bill are going to affect a separate and distinct class of person.

I said that if this Bill were treated as a Hybrid Bill it would give people affected the right to come to this House and raise their objection—and why not? I said that I was not going to deal at this stage with the merits of this Bill, but everybody knows that this is a very controversial Bill. One has only to look at one's postbag to see the representations that have been made by large numbers of local authorities and citizens to realise that this is a controversial Bill. Therefore I make no apology for putting forward this contention that the Bill should be examined to make quite certain whether or not the people who object to this Bill should have the right to make representations before a Parliamentary Committee.

Finally, I ask your Lordships not to be influenced or deterred by the possible consequences of the decision which I am asking your Lordships to come to. I have not discussed the merits of this Bill (we shall have an opportunity of discussing this later, for two days), and your decision as to whether or not this is a Hybrid Bill, or whether there is a presumption that it might be, will not be based upon the merits of the Bill but upon the facts I have given. The decision that this is a Hybrid Bill might conceivably be inconvenient to Her Majesty's Government—I will not dispute that. It would involve referring the Bill to an Examiner, which might or might not affect the passage of the Bill. Nevertheless, I hope that your Lordships will consider this question objectively. If I am right in my contentions that there is a doubt, your Lordships should not be deterred from acting accordingly by the question of what are the possible consequences to this Bill.

They may be unfortunate, or they may not. That is a matter very largely in the hands of Her Majesty's Government. It depends to some extent, I would suggest, on the question of when the next Election is likely to come. I do not know whether the noble and learned Viscount is going to reply—he looks as if he is going to—but I am sure he will not tell us when the Election is likely to come. It could, of course, be inconvenient to Her Majesty's Government; but I say that this is quite irrelevant. The real question is: should the people who are specifically affected by this Bill have the right to make their representations? I submit that I have established the case sufficiently to indicate that there must be a reasonable doubt in the minds of most of your Lordships as to whether or not this is a Hybrid Bill. If I have done that, then I would ask your Lordships to support this Motion, whatever the consequences to this Bill may be. I beg to move.

Moved, That the: Bill be referred to the Examiners in order that it may be decided whether the Bill is a Hybrid Bill.—(Lord Silkin.)