LONDON GOVERNMENT BILL (Hansard, 23 April 1963)

§ VISCOUNT HAILSHAM
My Lords, after a suitable moment for reflection, I now proceed, if I may, to revert to the debate which I interrupted in order to give my right honourable friend's reply. My Lords, the noble Lord, Lord Silkin, said that he was going to make a long speech, and I do not think we need reproach him, because he made an interesting one and he argued his case with a good deal of persuasiveness and considerable diligence and learning. I hope I shall not be considered in any way discourteous to his arguments if I answer him perhaps a little less lengthily, because my submission would be that really he has made no case at all.
Perhaps I may deal first with what I thought was the only part of his speech which was wide of the mark; that is, the latter part. The noble Lord gave us a moving, perhaps even emotional, reference to the vital effect which this legislation might have, as he claimed, upon human beings, and said that the legislation was controversial. This he set forward as a rebuttal of a contention that his was a technical argument. I hope that I am not less sympathetic to the rights of human beings than is the noble Lord. I was deeply moved by his words. I should have been more deeply moved if I had not reflected at the same time that he was a member of a Government which nationalised all the main 1115 public utilities of this country, and transport and coal, by a series of Bills all of which were Public Bills—except, I think, Cable and Wireless and the Bank of England, which have no relevance to the present issue.
But the truth of the matter, my Lords, is that the fact that human interests are affected is common to all public legislation; and the fact that the noble Lord, and those of his colleagues who were members of that Government, deprived of their personal property all the shareholders, for instance, in the railways or the steel companies, was not treated by them as a matter for turning the relevant Bill into a Hybrid Bill. Yet it could have been argued with complete cogency, had the noble Lord's argument the smallest degree of cogency, that in those cases human interests were vitally affected, individual pockets were affected, and that each Bill was a controversial one. The truth of the matter is, of course, that the question whether people's vital interests or human interests are affected is not the test to apply in determining whether or not a Bill is a Hybrid Bill.

§ LORD MORRISON OF LAMBETH
My Lords, will the noble Viscount forgive me for interrupting him? So far as I recall, the question of whether those nationalisation Bills, which applied to the whole nation and applied to all the shareholders, were or were not Hybrid Bills was never raised by anybody, in another place or otherwise. I had an experience on the London Passenger Transport Bill which applied to a particular area where the Examiners held that it was a Hybrid Bill; and it was so treated.

§ VISCOUNT HAILSHAM
My Lords, the noble Lord is wrong on both points. The question was raised. Within my recollection it was raised at least on the Iron and Steel Bill; and, of course, that Bill did not apply to all the shareholders in the country but only to all the shareholders in particular companies. Therefore the argument which I am presenting is, to that extent I should have thought, an irrefutable one. The fact of the matter is that Lord Silkin's appeal to respect human interests has nothing whatever to do with the case. The case whether the Bill is a Hybrid Bill is a technical question and one which must be pursued in the way in which, to do him justice, as 1116 I am sure the House would wish me to do, the noble Lord did seek to pursue it in the greater part of the argument which he presented to us this afternoon.
I thought it right for me to answer this Motion, rather than my noble and learned friend on the Woolsack, who is in charge of the Bill on behalf of the Government, since it raises questions of importance for the procedure of the House. My noble and learned friend on the Woolsack is, however, available to support, as I hope he will, what I say from his own learning if at a later stage the House so desires.
The noble Lord, Lord Silkin, began by candidly admitting that here we have a decision of the Lower House to the contrary of his contention. He described it as the Speaker's ruling, as indeed it was, in another place. But the Speaker of that place is only the servant of the House; his ruling can be challenged by substantive Motion and, if overridden by substantive Motion, the substantive Motion prevails over his ruling and becomes the precedent of the law of Parliament to which we refer on future occasions. What we are therefore in the presence of in this House is the decision of another place.
It is, of course, correct, as the noble Lord said, that each House is master of its own procedure, as it is judge of its own privileges. It is, therefore, the case that we are not bound by the decision of another place in a matter of this kind, in the sense that each House must make up its own mind separately on the arguments and cannot simply refer, without contest, to the arguments used in the other House of Parliament as decisive of the matter; although as I understand it, the greatest deference is placed in both Houses on a reasoned argument in either House about the nature of hybridity. Of course on a great number of matters of procedure and privilege the two Houses have, starting probably originally from the same point, elaborated their own divergent practices and views on different matters; so that there are a number of significant differences.
But there are matters (and I think, and I am advised, that this is one of them) in which it is at least desirable that the opinion and practices of the two Houses should be at one and in which hitherto—apart from a case where an act of, I think, pure omission and inadvertence 1117 on the part of this House was caught up and remedied in the Lower House: a case to which the noble Lord, Lord Silkin, referred at almost the outset of his remarks—I think they have always remained at one. Certainly I can trace no divergence of opinion about this matter between the two Houses; and I should have thought that this question of hybridity was essentially a matter upon which the Houses should, so far as possible, remain at one. Certainly it is true, so far as I have been able to study it from the books, that the criteria of what constitutes hybridity are, by common agreement, the same in both Houses; and I personally should have thought—and I hope the House will follow me in this—that nothing but inconvenience, and even considerable constitutional disadvantage, could ensue from a Bill ordinarily being considered public in one House and hybrid or private in the other.
I speak, not with regard to a pure act of omission, but of cases where both Houses have seriously considered the matter and given reasons for their opinion. And I am advised that in practice if, for instance (I merely give an example), in this case the decision had gone the other way, if the Speaker had ruled that the matter should be referred to the Examiners of the other place, who are normally, I believe, as they are here, the Officials of the House, and the Examiners had reported that the Bill was hybrid in character, and the other place had supported the Examiners in this view, this House would, in effect, have been bound by the Examiners' decision in the other place on the Bill in its then existing form. The same situation applies, I understand, in the reverse direction: that by consent the other place accepts the view of our Examiners, supported by our authority, when a Bill passes in the reverse direction.
I should have thought, and indeed I am advised, that comity between the two Houses, whose officials work extremely closely together in this particular matter, really demands that decisions of the first House in matters of this kind, whichever in the particular instance be the first House, should, wherever possible, be respected by the other, and they always have been respected by the other, where 1118 at any rate we know that the matter has been carefully inquired into, and the presumption must be, I should have thought, that the result of the inquiry is the correct one.
It is, of course, inescapably true that if Mr. Speaker's ruling, supported by the House in another place, is not binding on us, neither is the decision of the Examiners in another place binding on us, nor are the decisions of the Examiners in this place binding on another place. I can see nothing but constitutional disadvantage arising from the passage of the noble Lord's Motion. He will find, I think, that the logical consequences of what he is proposing would be really disruptive of the procedure which has moved by deference, respect and consent without any bad feeling or difference between the Houses over countless years.
I myself should have thought that this would probably have been conclusive of the matter, even if, which I am persuaded is the case, the House would not be easily convinced of the cogency of the arguments which were used below. I would try to set those arguments out, but I would put forward the proposition that unless this House were satisfied that not only a blunder, but an obvious blunder, had been made, it would be disposed to follow in this particular matter, as a matter of comity, not of obligation or law, the decision which the other place had made, if it found it at all possible in the circumstances to do so.
The guiding thought to carry in one's mind is that what one is discussing in hybridity is whether what is virtually the Private Bill procedure, of appearance by counsel upstairs, is, or should be, made applicable to a particular Bill. It is, of course, the general rule, as appears to those who have been curious enough to study Mr. Speaker's ruling, that, with one important exception, where Bills deal with a particular area—Birmingham, for instance—the presumption is that the Bill is private if promoted by a private citizen, or Hybrid if promoted by the Government. But the significant exception is the government of the metropolis, because Mr. Speaker ruled, in effect—I think I am not allowed to quote his exact words, but the curious may find it in column 45 of the Hansard concerned—that the precedents relating to Bills affecting the local government of the whole of London and 1119 those which relate to Bills on metropolitan sewers really prevent us in Parliament from treating the Bill concerned as a Private Bill.
I was a little surprised that, perhaps by inadvertence, or perhaps, as I would suppose, by misunderstanding it, the noble Lord, Lord Silkin, I thought at the beginning of his speech, suggested a contrary proposition; but reference to the precedents clearly establishes, I would submit, that this is so. Those precedents are numerous. But while the L.C.C. (General Powers) Bills, which deal with an immensity of particular aspects of London government every year, are Private, Bills dealing with the general aspects of local government in London have, at any rate in this century, ordinarily at least, been Public. To give a few examples only, the London Government Act, 1939, was Public; the Public Health (London) Act, 1936 was Public; the Public Health (London) Act, 1890, just before the beginning of the century, was equally Public.
What this Bill is doing is nothing short of dealing with the whole structure of local government and the exercise of all local government functions in Greater London. This is precisely the thing which makes it a Public Bill. The fact that it deals with a particular area, the particular area being the Metropolis, does not, on the precedents, take it out of that category. That is quite clearly stated, should the curious again wish to see my sources other than Mr. Speaker's ruling, at the bottom of page 869 of the current edition of Erskine May's Parliamentary Practice.
The noble Lord, Lord Silkin, then proceeded to make a secondary point, his first point being that because it dealt with a particular area, namely London, the Bill should be treated as Hybrid. On that point I frankly face the noble Lord with what I hope is a polite but a firm contradiction. It is precisely that which makes it Public. But there was a secondary point made by the noble Lord. He gave us a number of examples, some of them relating to parishes but certainly to various subdivisions of local government, going up to and including Middlesex County. He says that a number of these were divided and therefore treated in a special way by the Bill, or, in the case of Middlesex, done away with altogether, and that makes the Bill 1120 Hybrid. That argument is really blown sky high, if he will forgive me for saying so, if he will look at the Bill which constituted the London County Council. This is a Bill—and I agree with the noble Lord that we are not concerned with its merits—which substitutes a Greater London Council for the London County Council, over a different area, and a collection of differently arranged metropolitan boroughs for the existing boroughs inside and outside the county boundary.
If the noble Lord will look at Section 40, for instance, of the Local Government Act, 1888, which set up the London County Council, he will find in Part II that with the utmost precision exactly the same thing was done. You cannot in fact make a local government Bill to deal with the whole government of the Metropolis or local government throughout the country without subdividing individual parish boundaries. Therefore it is not at all possible—Parliament does not frustrate its own procedure—to conceive of the taking place by a Hybrid Bill of an operation of this nature. If he looks, for instance, at Section 40 (2) of that Bill—I mention it because it is the first, and not because it is the only one—he will see: Such portions of the administrative county of London as forms part of the county of Middlesex, Surrey, and Kent, shall on and after the appointed day be severed from those counties, and form a separate county for all non-administrative purposes by the name of the county of London … Then there are subsequent provisions. Similar provisions are made for areas of one sort or another of local administration. In those days quarter sessions and local justices had important administrative functions which were divided, or taken away, or done away with in the same way. So, with respect, there is nothing whatever in the argument that, because in this Bill, as in all other Bills which deal with matters of this kind, there must be subdivisions of local boundaries, the Bill is taken out of its Public character.
The noble Lord also made an ingenious point with relation to a particular sewerage Act during the lifetime, I think, of either this Government or one of the other Conservative Administrations of recent Parliaments. But, my Lords, there was nothing germane in that Act at all. 1121 I communicated with my noble and learned friend on the Woolsack when the noble Lord, Lord Silkin, indicated that his would have been the office to be consulted by Mr. Sandys on that occasion, and I think that is not the case. I think that the authorities to which Mr. Sandys was referring—although I have not been able to confirm this, otherwise than from my noble friend, who was not consulted—would be the House authorities in that case: because what constitutes hybridity is not decided by the Law Officers of the Crown; it is ordinarily decided by the respective officials of the two Houses, who do in practice work extremely closely together.
If the noble Lord really wanted to make a point on that particular Bill, of which of course I had no previous knowledge, I should have thought he would have found that it told the other way. Because in fact that very authority warned the Government in that case, through Mr. Speaker, that a particular Amendment would involve hybridity in a Public Bill, and came down on the side of the public character of this Bill as against the hybridity; and, indeed, I should have thought it was very easy to see why, if the noble Lord will forgive me for saying so.
He was perfectly right, of course, in saying that Mr. Speaker had drawn this to the attention of another place, and if he will look at page 870 of Erskine May he will see that he was perfectly right in saying that apparently a distinction is drawn in these precedents between public utilities such as gas, electricity and water, and the functions of local government, which, because there must be a dividing line, have been held to include sewerage. But, of course, the fact that sewerage is held to be within the functions of local government does not exempt the Bill, which is about sewerage, from other characteristics which may make it Hybrid. The noble Lord really contained within his speech the seeds of his own destruction in that respect, because he made it clear that the thing which was complained of as the injustice to be remedied, was the inequality of rate burden between one

§ LORD MORRISON OF LAMBETH
You have done very well.

§ VISCOUNT HAILSHAM
Well, I had a serious speech to contend with. I did not want to seem to be passing aside lightly the arguments of the noble Lord, Lord Silkin. He is an acknowledged authority upon many matters including local government. But I have, I hope, given the reasons which should really lead the House to come to the conclusion that it would be most injudicious in this case to accept his argument. I do not, for the reasons that I previously gave, accept his contention that if there were any doubt about the matter it should be resolved in this case in his favour. I should, with respect, have thought that in this case the argument told the other way, because, with the comity between the Houses, I should have thought that, if in doubt, where possible we should follow the decision of another place. But I should have thought that the strength of Mr. Speaker's ruling as reported was that the presumption in the other place was as the noble Lord said it. Mr. Speaker did not only rule that this was a Public Bill and not a Hybrid Bill; in effect he ruled that there was no doubt about it and that the contrary was not really arguable.

§ LORD SILKIN
My Lords, I do not know whether I have a right to reply. I am only going to say that I hope the House will be satisfied, from the speech which the noble and learned Viscount has just made, that there is a real doubt about the whole matter. If there is a real doubt—and I am not going beyond that—then this Bill should be referred to the Examiners.

CONTENTS
Addison, V.	Crook, L.	Latham, L,
Alexander of Hillsborough, E.	Douglas of Barloch, L.	Lawson, L.
Burton of Coventry, B.	Geddes of Epsom, L.	Lindgren, L.
Chorley, L.	Henderson, L.	Listowel, E.
Longford, E.	Shackleton, L.	Williams, L.
Lucan, E. [Teller.]	Shepherd, L. [Teller.]	Williams of Barnburgh, L.
Macdonald of Gwaenysgor, L.	Silkin, L.	Wilmot of Selmeston, L.
Morrison of Lambeth, L.	Stonham, L.	Wise, L.
Onslow, E.	Summerskill, B.	Wootton of Abinger, B.
St. Davids, V.	Taylor, L.
NOT-CONTENTS
Abinger, L.	Elliot of Harwood, B.	Monsell, V.
Airedale, L.	Exeter, M.	Montgomery of Alamein, V.
Albemarle, E.	Ferrers, E.	Ogmore, L.
Amulree, L.	Forbes, L.	Rathcavan, L.
Auckland, L.	Fortescue, E.	Reith, L.
Baldwin of Bewdley, E.	Fraser of North Cape, L.	Remnant, L.
Balfour of Burleigh, L.	Freyberg, L.	Rockley, L.
Balfour of Inchrye, L.	Furness, V.	St. Aldwyn, E. [Teller.]
Beauchamp, E.	Gage, V.	St. Oswald, L.
Bossom, L.	Glentanar, L.	Salisbury, M.
Brecon, L.	Goschen, V. [Teller.]	Saltoun, L.
Buccleuch and Queensbury, D.	Grenfell, L.	Sandhurst, L.
Carrington, L.	Haddington, E.	Sandys, L.
Cawley, L.	Hailsham, V. (L. President.)	Saye and Sele, L.
Chelmer, L.	Hanworth, V.	Simonds, V.
Chelmsford, V.	Hastings, L.	Sinha, L.
Chesham, L.	Howe, E.	Somers, L.
Cholmondley, M.	Iddesleigh, E.	Soulbury, V.
Clwyd, L.	Ilford, L.	Spens, L.
Colyton, L.	Ironside, L.	Stanhope, E.
Conesford, L.	Jessel, L.	Strathclyde, L.
Congleton, L.	Killearn, L.	Swaythling, L.
Crathorne, L.	Lansdowne, M.	Swinton, E.
Croft, L.	Leicester, L. Bp.	Teynham, L.
Denham, L.	Long, V.	Tweedsmuir, L.
Derwent, L.	Lothian, M.	Twining, L.
Devonshire, D.	McCorquodale of Newton, L.	Waleran, L.
Dilhorne, L. (L. Chancellor.)	Mancroft, L.	Ward of Witley, V.
Dundee, E.	Mar and Kellie, E.	Willingdon, M.
Eccles, L.	Margesson, V.	Windlesham, L.
Effingham, E.	Merrivale, L.	Woolton, E.
Ellenborough, L.	Mersey, V.	Younger of Leckie, V.